KARAM SLAM CHAUHAN, J.-Sharaf Khan (hereinafter called the vendor) sold the land in dispute to Noor Zaman (hereinafter called the vendee /defendant) on 1-11-1966 for a price of Rs. 12,050. Pir Ghulam (herein-- after called the plaintiff) filed a suit to pre-empt the aforesaid sale on the ground of contiguity of his land and also on the ground that he was participator in the immunities and appendages. The suit was partially decreed by the learned Civil Judge on 22-4-1969 with regard to a part of the property which was considered as covered by clause "secondly" of section 12 of the N.-W. F. P. Pre-emption Act XIV of 1950 inasmuch as the plaintiff's land received water from a water channel which irrigated the concerned part of the land in dispute. The suit with regard to the other part which did not carry any such appendage, was dismissed.
2. The vendee/defendant filed an appeal which was dismissed with a little modification namely that the pre-emption price was slightly enhanced vide judgment and decree of the learned District Judge dated 30-10-1970.
3. The vendee/defendant filed a Regular Second Appeal being fit. S. A./547 of 1970 which was accepted by a learned Single Judge of the Peshawar High Court by means of his judgment and order dated 31-10-1978 whereby he set aside the judgments and decrees of the Courts below and dismissed the plaintiff's suit. The finding recorded by the learned Judge was that all that has been established on the record was that the land of the pre-emptor received irrigation water from the same channel from which the land in dispute was being irrigated. This, according to the learned Single Judge, was not a qualification to give preference to the plaintiff to pre-empt the land in dispute.
4. The plaintiff has come up in a petition for special leave to appeal to this Court.
5. The learned counsel for the petitioner has repeated the same grounds namely that his land was receiving water from the same channel which irrigated the land in dispute, and, therefore, he has a preferential right of pre-emption. The contention has no merit. According to clause "secondly" of section 12 of the N: W. F. P. Pre-emption Act XIV of 1950 the preference is given to landowners who have a "right to discharge" their water over the suit land. Right to discharge water of one land over another land is quite distinct from receiving water from a common channel. Actually it means a "right of flow of water" in the suit land in the same sense as for example "right of way". There is no evidence worth the record that any rain water of the plaintiff's land used to be discharged on the suit land. Rather the position is that through a common channel both the lands used to be irrigated. See Imam Bakhsh Shah v. Muhammad A.I Shah (AIR 1946 Sind 55.). It .Is to be remembered that the right to pre-empt which is being put for--ward by the plaintiff is that which is known in Muhammadan Law as Shafi-i-Khalit. It is well settled that in such cases where the owners of lands have the right to draw water from a watercourse, they cannot claim the right of pre- emption as Shafi-i-Khalit because this does not make B them co-sharers in appendages and give them easement rights over the neighbour's land. The High Court in these circumstances was justified to hold that the petitioner could not establish preferential right of pre-emption.
Learned counsel for the petitioner has referred to Allah Bukhsh v. Hakim Muhammad Abdullah and others (PLD 1961 Pesh. 92), K. S. Muhammad Akbar Khan v. Zaidullah Khan and another (PLD 1954 Pesh. 99) and Mir Abdullah and others v. Mst. Bibi Asman Pari and others (PLD 1965 Pesh. 231).
These cases instead of helping the petitioner, go against him and support the view taken by the High Court.
6. The result is that this petition has no merit and is dismissed.