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Civil Revision No. 271/D of 1986, heard on 8th October, 1986.

‑‑‑S. 15‑‑Right of pre‑emption claimed as co‑sharer in property sold, and as owner in estate‑ ‑Pre‑emptor only a sharer in Shamilat appertaining to Khewat land, which was in sole ownership of vendor‑ ‑Pre‑emptor, who was only a sharer in Shamilat of Khata of sold land, held, would not be co‑sharer and would have no superior right to pre‑empt on that ground‑‑Mere fact that on partition of Shamilat, a portion of common land which would necessarily be allotted on account of such Khata would go to pre‑emptor would not make him a co‑sharer in Khata itself.

Sher Singh v. Nand Lal A I R 1947 Lah. 184 ref.

‑‑‑S. 15(c), thirdly‑‑Phrase "owner of estate", connotation of‑‑One must own culturable land assessed to land revenue to be owner of estate.

‑‑‑0. XVIII, R. 3‑‑Punjab Pre‑emption Act (I of 1913), S. 15‑‑Right of pre‑emption‑‑ Affirmative evidence concluded in support of issue‑ Scope of evidence in rebuttal‑‑Where affirmative evidence in support of issue of superior right of pre‑emption was concluded and right to produce evidence in rebuttal only, was reserved, no evidence, held, could be brought on record to support affirmative evidence led in support of superior right.

‑‑‑S. 15‑‑Suit for pre‑emption‑‑Right of vendee at par with pre emptor‑‑Effect‑‑Where right of vendee was at par with pre‑emptor, such pre‑emptor, held, could not succeed to acquire property in preference to vendee.

‑‑‑S. 15‑‑Civil Procedure Code (V of 1908), S. 115 Revisional jurisdiction, exercise of‑‑Where superior right of pre‑emption as co‑sharer was not proved, and right of ownership of pre‑emptor in estate was at par with vendee, High Court in its revisional jurisdiction set aside decree of First Appellate Court wherein right of pre‑emption was erroneously granted to pre‑emptor and restored that of trial Court by which suit was dismissed on sound and legal principles.

Haq Dad Kayani for Petitioner.

Abdul Aziz Bhatti for Respondent.

Date of hearing: 8th October, 1986.

This petition in revision arises out of suit for pre‑emption. One Shamsud Din sold 6 Kanals 14 Marlas of land, Khasra 369 situate at Mouza Mal Koka, to Murid Hussain for Rs.30,000, vide deed of sale registered on 31‑3‑1982. Muhammad Lai pre‑empted the sale and brought a suit against the vendee in the Court of Civil Judge Rawalpindi on 22‑3‑1983. Pre‑emptor claimed that he was a co‑sharer in the suit property and owner of the estate, thus, had a better right to acquire suit land qua the vendee who was a total stranger. Price paid for the suit property was disputed by them and it was averred in the plaint that the property in suit was sold only for Rs.12,000 and rest of the sale price was got incorporated in deed so as to avoid the pre‑emption claim. Vendee resisted the suit, pleaded that plaintiff had no cause of action; that the plaintiff had waived his right; that the suit had not been correctly valued for the purposes of court‑fee and jurisdiction; that the defendant was entitled to special costs under section 35‑A of the C.P.C. On merits, it was alleged that the suit property was purchased for Rs.30,000 which has been fixed in good faith and was actually paid to the vendor. Superior right claimed by the pre‑emptor was denied. On 25‑7‑1983, learned Judge of the trial Court formulated necessary issues arising out of the pleadings and set down the suit for evidence. Plaintiff examined himself and deposed that he was co‑sharer in the suit property and was also owner of the estate. Jamabandi for 1980‑81, EXh.P.l was relied on. With this, affirmative evidence was closed on 25‑10‑1983. Right to produce evidence in rebuttal, however, was reserved. Defendant produced some evidence in support of payment of sale price, and himself appeared as D . W .3 . It was deposed by him that he was also owner of the estate. Reliance was also placed on copy of Khasra Girdawari from Kharif 1981 Exh. D.2, 'Aks Shajra Kishatwar' Exh.D.3, copy of sale‑deed Exh.D.4, copy of Jamabandi for 1980‑81, Exh. D.5 and defence was closed. Thereafter, plaintiff appeared in rebuttal and in his statement tendered copies of Jamabandis EXh.P.2, P.3, apart from making statement on the sale price paid by the vendee to the vendor. Plaintiff's statement, in rebuttal, was recorded on 5‑12‑1984. After the close of the case, suit was adjourned on several dates for hearing arguments. Eventually, it was dismissed on 12‑3‑1985.

Learned Civil Judge, on examination of the material placed before him found that plaintiff was not co‑sharer in the suit property and as owner of the estate his right was at par with the defendant‑vendee who was also found owner of the estate much prior to the sale in his favour. For ownership of the defendant, trial Court relied on copy of Jamabandi for 1980‑81 Exh.D.5. Issue No.l which pertained to the superior right of pre‑emption, therefore, was found against the pre‑emptor. Issues 2, 5 and 6 were found against the defendant and under issues Nos.3 and 4 the Court held that the sale price given in the sale‑deed viz. Rs.30,000 was actually paid to the vendor. Against the dismissal order, pre‑emptor preferred an appeal. It was heard by Hakim Syed Akhtar Irshad, learned Additional District Judge Rawalpindi. It wad found by the Appeal Court that the pre‑emptor was not only a co‑sharer but was owner of the estate also. As regards defendant's entitlement, the learned Judge found that there was a clear doubt about his ownership in the village Malkoka where the suit land was situate. On the issue of payment of sale price also learned Judge differed with the conclusion of the trial Court and concluded that the suit land was sold for Rs.12,000 only. Accordingly, appeal was allowed on 13‑5‑1986, trial Court's decree was set aside and the plaintiff's suit decreed in his favour on payment of Rs.12,000 to be, deposited in Court till 13th June, 1986. Against this decision, Murid Hussain has preferred this civil revision.

It was contended for the petitioner that the pre‑emptor was neither a co‑sharer nor owner of the estate. As regards co‑sharership, counsel submitted that copy of Jamabandi for 1980‑81, EXh.P.l records Lai son of Saida as 'Haqdar Shamilat' only having no share in the Khewat land which was in sole ownership of Shamsud Din vendor. Counsel submitted that on the basis of being sharer in 'Shamlat' appertaining to Khewat land, pre‑emptor could not claim himself to be a co‑sharer in the land sold. As for the ownership of the estate, it was submitted that there was no material available on record to prove that the share of 'Shamlat' owned by pre‑emptor was culturable and was assessed to land revenue. As for the vendee, counsel referred to Exh . D .5 copy of Jamabandi for 1980‑81 to urge that Murid Hussain allongwith his brothers was recorded as so‑owner of the land comprised in Khasra 148 measuring 16 Marlas 'Maira' land, which was assessed to land revenue. Relying on the aforenoted document, counsel strenuously contended that the defendant‑vendee was also owner of the estate and on the assumption that pre‑emptor was owner of the estate, right of the defendant‑vendee was at par with him and the plaintiff could not be said to have preferential right to acquire the suit property. Learned counsel invited the attention of the Court to another important fact that Jamabandis Exhs. P.2 and P.3 led in evidence in the statement of the plaintiff after the close of defence, could not have been read in affirmative and that too without allowing an opportunity of rebuttal to the defence. Exhs.P.2 and P.3, counsel argued, were put in to support superior right of pre‑emption. After having closed the affirmative evidence, plaintiff was not entitled to place these documents in evidence without formal permission of the Court for additional evidence.

On behalf of the pre‑emptor, his learned counsel argued that both the grounds on which the right to pre‑empt was claimed were adequately established on record. As for Exhs. P.2, P.3, learned counsel argued that defendant had not raised objection of the reception of these documents at the proper time, and, therefore, was clearly debarred now to object and to say anything against their being read in evidence.

After hearing counsel for the parties and examination of the original record, I am clearly of the opinion that this civil revision is. bound to succeed and the impugned judgment of the appeal Court could not be sustained. Pre‑emptor pressed two grounds in support of his claim, first, a co‑sharer, second, owner of the estate. Examination of Exh . P . 1, copy of Jamabandi for the year 1980‑81, pertaining to the suit property manifestly shows that plaintiff was not co‑sharer in the property sold. He was only a sharer in the Shamilat appertaining to the Khewat land which was in the sole ownership of Shamsud Din, vendor. Khasra 369 measured 6 Kanals 14 Marlas only. Indisputably, whole of it was sold by its owner, Shamsud Din to vendee, Murid Hussain. Pre‑emptor had no share in, the property sold nor was it jointly owned. The fact that Lal was sharer in the Shamilat falling to the Khata No.70 in which the suit Khasra was comprised did make him a co‑sharer in the property sold. Shamsud Din, vendor was a 'Malik Qabza' of Khasra 369. Pre‑emptor who is entitled to Shamilat appertaining to this land but having no share in the land sold, cannot successfully claim to be a co‑sharer. The view taken by me finds ample support from the decision in Sher Singh v. Nand Lal A I R 1947 Lah. 184, a case which is on all fours. In the precedent case, Kalu Ram, a 'Malik Qabza' sold his land. The pre‑emptor who was entitled to share in Shamilat brought a suit for pre‑emption on the ground that he was a co‑sharer in the land sold. While examining the status of the pre‑emptor whether he was a co‑sharer and was entitled to a superior right, the Court observed:‑

"The term 'co‑sharer' is not defined anywhere in the Act, but its meaning is quite clear. The word 'co‑sharer' postulates that there are some other persons as well who have a right in the property. The very conception of 'joint property' as used in clause (b) above presupposes that it also belongs to a person or persons other than the vendor. All the persons who so own a property among themselves are the co‑sharers of each other. Their relationship is mutual. It would be a contradiction in terms if A is the co‑sharer of B, but B is not the co‑sharer of A. As laid down in 5 Lah. 298, the word 'co‑sharers' 'signifies persons owning a share or shares in the whole of the property or properties of which another share or other shares were the subject of sale'. In other words, the word 'co‑sharer' denotes a person who holds an existing joint proprietary interest, whether absolute or limited, in an undivided property. The land sold in this case was the sole property of the vendor in which the plaintiff had no share whatsoever. The mere fact that on a partition of the village Shamilat a portion of the common land which will necessarily be allotted on account of this Khata will go to the plaintiff does not make him a 'co‑sharer' in the Khata itself. Reliance is placed upon 43 P.R. 1914. In that case the vendor and the pre‑emptor were both the owners of the Khata sold and a fortiori of the common land forming the adjunct. This has no application to the present case and the argument that its converse is equally true is fallacious. The Shamilat land follows the Malkiyat land and not vice versa."

On the basis of this well‑established and correct statement of law, it can be safely held that the pre‑emptor who was only a sharer in the Shamilat of the Khata in dispute, was not a co‑sharer and had no superior right to pre‑empt on that ground. It may also be noticed that learned counsel for the respondent in a frank and candid manner conceded the above statement of law and submitted that on the present records, it would be difficult for him to urge that the view taken by learned Additional District Judge as to the co‑sharership was correct. Superior right was pressed on the sole ground that the pre‑emptor was owner of the estate while defendant was not. As for the ownership of the estate, counsel relied on Exhs. P.1 to P.3. Exh.P.1 pertains to the year 1980‑81 whereas Exh.P.2 related to 1955‑56. In both the documents pre‑emptor was recorded as 'Haqdar Shamilat' only. There is no evidence to show that share of 'Shamilat' claimed by him was culturable and was assessed to land revenue. To be the owner of the estate, one must own culturable land assessed to land revenue. On these two documents, therefore, it could not be maintained that respondent was owner of the estate. As for EXah:P.3, no doubt, pre‑emptor is shown to be owner of the estate. He owned agricultural C land assessed to land revenue in the revenue estate of Malkoka. If Exh.P.3 is taken into consideration and relied on, the plaintiff, indisputably becomes owner of the estate. Mr. Haq Dad Kiani, learned counsel for the petitioner, however, seriously objected to the reception of Exh.P.3 in affirmative evidence and submitted that after the plaintiff had closed his affirmative evidence, it was net right for him or for the Court to have permitted him to place these documents on record and then read them to support the superior rights. It was also argued by him that even this document is taken into consideration and plaintiff held to be owner of estate, the defendant was also owner of the estate and his right was at par with the plaintiff. It cannot be denied and in fact learned counsel for the respondent was also of the same view that after the affirmative evidence in support of issue of superior right of pre‑emption was concluded and right to produce evidence in rebuttal only was reserved Exhs. P.2 and P.3 could not be brought on record to support affirmative evidence led in support of superior right. At one stage, I was inclined to remand the case to the trial Court so as to allow an opportunity to the defendant to lead evidence in rebuttal of Exhs. P.2 and P.3 but then looking to the contents of Exh.D.5, I had to change my view for the sole reason that there was enough material on record to show that defendant was also owner of the estate. Learned Additional District Judge, on comparison of the registered sale‑deed with entries in Exh. D.5 found some discrepancy in the caste of the vendee and concluded that Murid Hussain son of Muhammad, caste Maliar shown owner of land in Khasra 148 (D.5) was not proved to be the same person who had purchased suit property. It is correct that in the sale‑deed, the name of the vendee given is Murid Hussain, son of Muhammad Khan, caste Bhatti Rajput, resident of Khadepur and that given in Exh. D.5 was Murid Hussain son of Muhammad, caste Maliar, resident of Khadepur. In his statement; Murid Hussain, D.W. 3 had clearly deposed that he owned agricultural land paying land revenue (16 Marlas) in the revenue estate Malkoka alongwith his brothers and cousins. Plaintiff did not produce any evidence to prove that there was any other person by the name of Murid Hussain son of Muhammad Khan in the revenue estate Malkoka. Pre‑emptor is the Lambardar of revenue estate Malkoka. He was present in Court during the hearing of the civil revision. I enquired from his counsel Mr.Adbul Aziz Bhatti, as to whether he was prepared to swear affidavit that the vendee was a different person from the one who is shown to be owner of agricultural land in Malkoka vide Exh . D .5. Pre‑emptor expressed his inability to submit an affidavit. On re‑examination of the whole matter in the light of the submissions of the learned counsel as also the evidence led for and against, I am clearly of the opinion that Murid Hussain son of Muhammad shown owner of agricultural land in Exh.D.5. was the same person who had purchased the suit property and the discrepancy relied upon by learned Additional District Judge, to speak with respects to him, was not only unsubstantial but was inconsequential also. The right of the vendee being at par with pre‑emptor, the latter cannot succeed to acquire the suit property in preference to the former. Learned Additional District Judge, therefore, was erroneous in finding E that the pre‑emptor had a better right. As I have found that the plaintiff was not possessed of a better right, I did not find it necessary to express my views on the remaining issues as to the payment of sale price and market value. For the foregoing reasons, civil revision is allowed, impugned judgment of Additional District Judge is set aside and that of the trial Court is restored and pre‑emption suit dismissed with costs.

A . A . Revision allowed.

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