' SYED YAHYA ZAHID GILANI, J.---Half of the suit-land was decreed by the trial Court vide judgment and decree dated 23-10-2002 in favour of the pre-emptor because both the pre-emptor and vendee were held contiguous owners.
2. The Court of appeal dismissed the suit solely on the ground that the preemptor is not in possession of the contiguous Khasra number.
3. The revision petition-in-hand was admitted to consider the point that whether possession in the adjacent Khasra number is a condition precedent for the success of pre-emption suit if the right of pre-emption is based on contiguous ownership.
4. I have heard learned counsel for the parties on the aforementioned moot point which was admittedly the only point involved for determination.
5. Record has been thoroughly thrashed out with full concentration on Aks Shajra Kishtwar, copy Exh. P.W.4/2. It reveals that Khasra No, 740 in Khata No,234/584 is the suit Khasra number. The vendee/defendant owns Khasra No, which is adjacent to Khasra No, 751 Similarly, the pre-emptor owns two Khasra Nos. 722 and 723 in Khata No, 20/50 which are adjacent inter se and in one block, and out of these two, only Khasra No,722 is contiguous to suit Khasra No,740. The Court of appeal has non-suited the pre-emptor simply on the ground that although he is in possession of Khasra No,723 (owned by him) but not possession of Khasra No, 722 (also ow: by him) which really touches the bound of Khasra No, 740.
6. If we go through explanation (iii) of section 6 of the N. -W.F.P. Pre-emption Act, 1987, it clearly mentions that right of pre-emption based on contiguity is because of ownership pf adjacent land and not at all because of "possession" of the adjacent land, or for that matter, "ownership with possession." There is no mention or reference of possession in the aforesaid clause. Therefore, the learned Court of appeal misinterpreted and misapplied law while holding that the pre-emptor, who claims to be `Shafi-e-Jar' should not only own the adjacent land but also possess it. This view of the matter is erroneous and not in accordance with law.
6-A. I, therefore, hold that the learned counsel of appeal misunderstood the law and wrongly applied it. The pre-emptor herein being owner in Khasra No, 722 which is adjacent to suit Khasra No, 740, C has succeeded to prove his right of preemption as `Shafi-e-Jar' and he was rightly, granted decree of half of the suit-land by the trial Court because he and the vendee both had equal rights of pre-emption.
7. The revision petition is, therefore, accepted. The impugned judgment and decree of the learned appellate Court is set aside and that of learned trial Court is resorted. If the pre-emptor had not deposited the remaining pre-emption money as per direction of the trial Court, shall deposit the same within next two months, failing which, his suit shall be deemed to have been dismissed. The parties are left to bear their own costs.