' MAULVI ANWARUL HAQ, J.---This judgment shall decide R.S.As. Nos. 37 to 40 of 2003 as common questions are involved.
2. The appellants in each of these cases respectively purchased 7 Marlas of land each for a consideration of Rs,4,50,000 vide Mutation Nos.2881 to 2884 attested on 5-10-1995 respectively. On 27-11-1995 the respondent filed four suits for possession of the said suit-lands by pre-emption. His case was that the respective vendees have actually paid Rs,2,00,000 and the price recorded in the sale deeds is fictitious. He claimed to be a co-sharer as well as Shafi Khalit and Jar. Performance of Talbs was pleaded. The appellants in their written statements stated that they had entered into possession under the sale and had been raising construction to the knowledge of the respondent.
They also claimed costs of improvements and incidental charges. They insisted that they had, in fact, paid Rs,6,00,000 each for the suit-land. Rest of the allegations in the plaints were denied.
Several issues were framed. However, before the learned Court of first appeal and before me as well only the following two issues framed in all the cases being Issues Nos.9 and 14 have been agitated:-
(9) Whether the plaintiff is not Sharik Khata and is not Shank Jar, Sharik Khaleet and he had filed this suit being a rich person to distress the defendant, therefore, plaintiff has not come before Court with clean hands and the suit is liable to dismissal with special costs? OPD.
(14) Whether the plaintiff has superior right of pre-emption than defendant on the grounds as mentioned in para.No,4 of plaint? OPP.
' Evidence of the parties was recorded. The learned trial Court vide judgments and decrees dated 21-4-2003 decreed all the suits subject to deposit of Rs,4,50,000 as price and payment of incidental charges of Rs,49,507 in each case. First appeals filed by the appellants were heard by a learned A.D.J., Kharian, who dismissed all the appeals on 3-7-2001
3. Learned counsel for the appellants contends that the learned Courts below have misread the evidence on record and have failed to take note of the laws on the subject while holding that the respondent in all these cases had a superior right of preemption. According to him, the learned Courts below found that the respondent is not a co-sharer. However, they have committed an error of law while holding the respondent to be Shafi Jar and Shafi Khalit. With reference to evidence on record urges that the land owned by the respondent was not adjacent to the suit land comprised in Khasra No,194 and that it is in the evidence of the respondent himself that common passage, in fact, is a public road which is open ended. He relies on the case of Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) and the case of Karim Bakhsh v. Khuda Bakhsh (ILR (sic) All. 247). Learned counsel for the respondent, on the other hand, has supported the impugned judgments and decrees with reference to the documentary evidence on record.
4. I have gone through the trial Court records in all these cases, with the assistance of the learned counsel for the parties. It will be noted that primarily the issue relating to the superior right of preemption is being agitated by the parties before me. I have already noted above that the respondent/plaintiff claimed to be a Shafi Sharik/Khalit and Jar. The land in suit is comprised in Khasra No,194 while the land owned by Muhammad Hussain son of Allah Ditta respondent/plaintiff is comprised in Khasra No,195. Upon perusal of Exh.P.4 which is the copy of Register Hadqaran Zamin for the year 1999-2000 pertaining to the land owned by the respondent and Exh.P.6 which is Register Haqdaran Zamin for the year 1991-92 pertaining to the suit-land, it is apparent that both the Khasra numbers formed part of separate Khatas. The learned Courts below have, therefore, correctly found that the respondent is not a co-sharer in the suit-land.
5. I may note here that whereas the learned Courts below have stated in their respective judgments that the respondent is an owner in Khasra No,195, Mutation No,2492 produced by both the parties respectively as Exh.P.5 and Exh.D.5 shows that Muhammad Hussain son of Allah Ditta respondent purchased one Marla of land comprising Khasra No,1576/2146 from Adalat Khan son of Ghulam Muhammad, Exh.P.4 which is Register Haqdaran Zamin for the year 1999-2000 also records Muhammad Hussain in the column of possession as a vendee of said Khasra No,1576/2146 measuring one Marla. According to Exh.P.11 which is Aks Shijra Kishatwar Khasra No,195/1 as depicted therein does lie adjacent to Khasra No,194. Muhammad Hussain respondent appeared as P.W.4 to state that the land owned and possessed by him lies adjacent to the suit-land and he also claimed to be a co-sharer. I find that he never stated that he is a Shafi Khalit and neither he stated any facts making him a Safi Khalit. In his cross-examination, he has stated that on the land he purchased from Adalat Khan, he has constructed a shop. He has then stated as follows:-- {{URDU TEXT}} ' Muhammad Akram Patwari, D.W.1, has appeared to prove Exh.D.1 which is Aks Shirja Kishatwar prepared during the settlement of 1911-12. In this document, the one Marla land of the respondent has been shown to be 11 Karms away from Khasra No,194. The said witness has also stated that Khasra No,1146/195/2/1 is 11 Karms away from Khasra No,194. Zafar Iqbal, Patwari, D.W.2 has appeared to prove Exh.D,W.2/1 which is the same document as Exh.D.1.
6. I may here also refer to the statement of Muhammad Sharif P.W.6. He has stated as follows in the course of his cross-examination: - {{URDU TEXT}} It will, thus, be seen that apart from the said D.W.l and D.W.2 as also documents Exh.D.l and Exh.D.W.2/1 it is in the statement of the plaintiff/respondent that someone else's land intervenes between his property and the suit-land.
7. Now coming to the matter of Shafi Khalit, the learned Courts below have held that since both the properties abet on Langarial road, the respondent is a Shafi Khalit. Now the respondent as P.W.2 has admitted that the Pacca road goes through Kotla to Langrial and except the said Pacca road there is no other private Kacha road. The Aks Shajra produced by both the parties also shows that the road goes through and is open ended.
8. As per explanation appended to section 6 of the Punjab Pre-emption Act, 1991, 'Shafi Khalit' means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation. It will, thus, be seen that a public road or thoroughfare would not constitute a special right attached to the property sold to the appellants in these cases within the meaning of the said provision of law. In the said case of Karim Bakhsh, the term Khalit was explained as follows at page 250 of the report:- ' "The next question for consideration is whether the respondent has a right to pre-empt the property in suit as a Shafi-I- Khalit. He claims to be a Khalit on the ground that he is partner in one of the appendages of the said property, namely, in the right of way. In order that he may be regarded as a Khalit of this description, it is essential that the road in which he participates should be a private road and not a thoroughfare. According to the Hidaya (Vol.Iii, p.565) "it is necessary that the road or rivulet, the joint participation in which gives a claim to the privilege of Shufa be private." The same rule is stated in Baillie's Digest (p.482) in these terms. "If the streets were . Open with a passage through, and a mansion in it were sold, there would be no right of pre-emption except for the adjoining neighbour. In like manner when there is a thoroughfare which is not private property between two mansions (that is, when they are situate on opposite sides of the way) and one of them is sold, there is no preemption except for the adjoining neighbour. If the road be private property, it is the same as if it were no thoroughfare. A thoroughfare which does not give the right of pre-emption is a street that the people residing in it have no right to shut."
' I have also gone through the leading opinion in the said case of Malik Said Kamal Shah rendered by Honourable Mr. Justice Pir Muhammad Karam Shah. The concept of a Khalit is directly related to the concept of joint ownership of the property. It is to be a right of way or a source of irrigation jointly owned by the vendor and the pre-emptor or they should be having right of user of he same to the exclusion of general public or it should be a cul-de-sac, the right being restricted to the inhabitants of the said blind alley. I, therefore, do hold that the ownership of the property on a public road whereon sold property is also located does not give rise to a right of pre-emption on the basis of being a Khalit.
9. Having thus, examined the records, I do find that both the learned Courts below have misread the evidence on record and have not taken note of the relevant law on the subject while holding the respondent to be Shafi Khalit and Shafi Jar. The findings recorded on Issues Nos.9 and 14 are accordingly reversed and these are answered against the respondent. All the R.S.As. Are accordingly allowed. The impugned judgments and decrees passed in these cases by both the learned Courts below are set aside and the suits filed by the respondent/plaintiff against the appellants/defendants in each of these R.S.As. Are dismissed. However, no orders as to costs.
10. The records of the learned Courts below be remitted back immediately.