1. SARDAR MUHAMMAD NAWAZ KHAN, C.J.--- Through this appeal the validity of judgment and decree, dated 9-5-2005 passed by District Judge, Bagh whereby he has reversed the judgment and decree of the trial Court by accepting the appeal by the respondents is under challenge.
2. The relevant facts necessary for the decision of this appeal are that Khadam Hussain and his brother Anwar Hussain brought a suit for possession on the ground of pre-emption against Raja Muhammad Altaf Khan and his brother Muhammad Noshad Khan respondents herein in the Court of Senior Civil Judge, Bagh on 9-12-2000. The trial Court, after due process of law, allowed the suit consequently, a decree for preemption with regard to suit-land was passed on 25-11-2004. The respondents Raja Altaf Hussain and others feeling aggrieved by the judgment and decree of the learned trial Judge filed appeal before District Judge, Bagh with success. The learned District Judge allowed the appeal consequently, the judgment impugned before him was reversed and the pre- emption suit by the appellants herein was dismissed. Through the present appeal, the appellants seek reversal of the judgment and decree passed by the learned District Judge in this case.
3. The learned counsel for the appellants while addressing the Court seriously attacked the judgment and decree impugned before this Court. According to the learned counsel, the learned District Judge disallowed the suit on the ground that the pre-emptors could not prove themselves to be the owner in "Mahal" whereas it was nobody's case neither the said ground could be made basis for pre-emption in view of amendment in section 14 of Prior Purchase Act. The learned counsel submitted that the case of the appellants was based on the ground of contiguity and this ground was satisfactorily proved through the evidence on record but the learned District Judge without due application of mind to the facts of the case and the law available on the subject of preemption dismissed the pre-emption suit unlawfully. It was further submitted that the suit-land which was subject of pre-emption was contiguous to the property of pre-emptors, therefore, the learned trial Judge rightly allowed the suit.
4. Conversely, the learned counsel representing the respondent while arguing his case submitted that the ground on the basis of which the learned District Judge disallowed the pre-emption suit was not attracted in this case neither it could be made basis for pre-emption in view of amended law and he frankly conceded to the argument with regard to question of "Mahal". However, he defended the impugned judgment and decree on the ground that the suit-land under pre- emption could not be decreed in favour of pre-emptor as their own land was not contiguous to other survey numbers mentioned in the sale-deed except Survey No,1747. According to the learned counsel, the pre-emption decree could not be passed on the ground of contiguity however, if the suit was to be decreed it could be done only to the extent of Survey No,1747 to the extent of share of vendor in the said survey number. To elaborate his argument, the learned counsel referred Akas Latha Exh.P.F. Available on the file of trial Court and contended that the property of the pre-emptors comprised in Survey Nos.1733, 1735 and 1738 is found to be contiguous to Survey No,1747 only which is under threat of pre-emption. According to the learned counsel, the other property sold by the vendor comprised in Survey Nos.1768, 1727, 1726, 1767, 1729 and 1725, as evident from the sale-deed, is not found contiguous to the property of pre-emptors/appellants which is comprised in Survey Nos.1733, 1735 and 1738. Therefore, the pre-emption suit to the extent of other survey numbers mentioned in the sale-deed except Survey No,1747 was not maintainable on the ground of contiguity and as such it was liable to be dismissed but the learned trial Judge wrongfully allowed the suit in its entirety, the learned counsel argued. He, during his arguments, relied upon Qalandar Khan's case PLD 1956 Pesh. 1, Ghulam Mohi-ud-Din's case PLD 1957 Pesh. 36 and Zaheer Khan's case PLD 1959 Pesh. 148 and contended that in order to succeed in a preemption case the plaintiff/pre-emptor was required to prove the fact of contiguity to each survey number under the threat of pre-emption but here in this case, the property of the pre-emptors was contiguous to only one survey number as mentioned herein before therefore, the suit to the extent of other survey numbers mentioned in the sale-deed was to be 'dismissed.
5. Before arriving at a conclusion, it is felt advisable to have a brief survey of the case-law cited by the learned counsel for the respondents. In Qalandar Khan's case, it was held that for the purpose of pre-emption each Khasra number is to be considered separately even though a number of them has been purchased through one transaction and are contiguous to each others. The pre- emptor has to prove his right based on contiguity in respect of each and every Khasra number before he can succeed. In this case, different survey numbers contiguous to each other were sold and the pre-emptor sought pre-emption decree of the entire property on the basis of contiguity.
6. All the survey numbers were contiguous to each other however, the property of the pre-emptor was not contiguous to each and every survey number, therefore, the suit by pre-emptor was decreed only to the extent of survey number which was found contiguous to the property of pre- emptor.
7. Coming to the Ghulam Mohi-ud-Din's case, it was held that if a suit is brought on the ground of vicinage, by possession for pre-emption of several Khasra numbers, the plaintiff has to prove that he has property contiguous to each of them and if he has no contiguous property must fail. This judgment has been given on the same principle as laid down in Qalandar Khan's case.
8. In Zaheer Khan's case, the same principle was followed and it was held that different Khasra numbers comprised in one Khata do not become one unit for the purpose of pre-emption.
9. After having examined the case-law cited at Bar it becomes clear that vendors in the precedent cases sold different survey numbers in their ownership and possession to the vendees and the vendees stepped in their shoes. The survey numbers sold through sale-deed were contiguous to each other however, the property of pre-emptors was also contiguous to one side of the property sold by the vendors. The learned Judges arrived at the conclusion that for the purpose of pre- emption each and every survey number comprised in a separate. Unit therefore, the pre-emption suit could be allowed only to the extent of survey number which was found contiguous to the property of pre-emptors and not to the extent of those survey numbers which were not in contiguity with the property of pre-emptors. The case in hand has been examined in view of the principle laid down in the precedent cases. This Court has no cavil with the view taken in the precedent cases. This Court is confronted with a different proposition. Here in this case, the vendor Muhammad Yaseen by name through the sale-deed under impeachment by the pre-emptors transferred the suit-land measuring 7 Kanals, 14 Marlas as his share in the joint estate comprising Survey Nos.1747, 1728, 1729, 1767, 1726, 1727 and 1768 total measuring 68 Kanals, 18 Marlas in Village Juglari. Tehsil Bagh and handed over the possession of the Survey No,1747 measuring 7 Kanals, 14 Marlas as his entitlement in the joint property.
10. He is found to have transferred the suit-land within his entitlement. This survey number was in his exclusive possession on account of family arrangement at the time of execution of sale-deed. The question is whether this transfer about Survey No,1747 measuring 7 Kanals, 14 Marlas is a valid transfer? The answer is in affirmative. This proposition came before Honourable Supreme Court of Azad Jammu and Kashmir in Mustafa Khan's case PLD 1978 SC (AJ&K) 75 in which the following observation has been made:-- "After careful examination of the law on the point and the facts of the case we are of the view that a co-sharer in a specific field number can validly transfer such land even if his share in such specific number exceeds his share provided he does not exceed his over all entitlement of the share in the entire joint property. Such a sale cannot be legally challenged on the mere ground that land sold exceed to the share of the vendor in the specific number. It was further held that in case of joint Khata where one co-sharer has been in exclusive possession of a portion of the joint land which does not exceed his share in the entire holding another co-sharer cannot dispossess him against his will from the partition of which he had been in possession."
11. The position which; therefore, emerges out is that when a co-sharer in a joint property transfers his share in the joint property and hands over a specific field number in his possession through family partition such transfer is a valid transfer. The vendee in such a sale steps into the shoes of vendor and becomes co-sharer with other co-sharers. Similarly, when a pre-emptor pre-empts such property and succeeds in his suit for pre-emption he is to be put in the same position as that of vendee meaning thereby that he will occupy the same position with other co-owners as that of vendee and shall become co-sharer in the property in same position under which the original vendor was placed at the time of execution of sale-deed. So when Survey No,1747 measuring 7 Kanals, 14 Marlas was in possession of Muhammad Yaseen vendor at the time of sale-deed and was handed over to the vendees Raja Altaf Khan and others, the pre-emptors shall occupy the position of vendees in case they succeed in pre-emption suit. The pre-emptors in case of decree in their favour shall have nothing to do with other survey numbers mentioned in the sale-deed under pre-emption. The vendor Muhammad 'Yaseen mentioned other survey numbers in the sale-deed simply to make it clear that his entitlement was available in the joint estate and he could validly transfer Survey No,1747 measuring 7 Kanals, 14 Marlas. Thus, the facts of the present case are different from the facts of the precedent cases. As held by the apex Court of the State in the case mentioned hereinbefore the transfer of Survey-No,1747 measuring 7 Kanals, 14 Marlas is a valid transfer and the possession of this survey number alone has been handed over to the vendees, the question of contiguity shall arise with respect to the said survey number only. It would be ridiculous to say that question of contiguity arises with regard to other survey numbers mentioned in the sale-deed neither it is a controversy which needs resolution by this Court. The other survey numbers mentioned in the sale-deed undoubtedly are not contiguous to the property of the pre- emptors but it is admittedly contiguous to Survey No,1747 measuring 7 Kanals, 14 Marlas which in fact is the property sold to the vendees.
12. The conclusion is that the property of the pre-emptors is found to be contiguous to the property sold to the vendees. They have superior right of pre-emption as against vendees. The suit by the pre-emptors/ appellants has rightly been allowed by the learned trial Judge. Thus, in view of what has been stated above, the judgment and decree by the first Appellate Court is hereby set aside consequently, the judgment and decree passed by the learned trial Court stands upheld by accepting the appeal. The appellants/pre-emptors shall deposit decretal amount in the trial Court within 2 months time from the date of this order. The office is directed to transmit immediately the file of the trial Court along with copy of this order, The learned trial Court, after receiving the order by this Court, shall issue notice to the appellants/pre-emptors for depositing the decretal amount within the time fixed by this Court.