1. ' MEHTA KAILASH NATH KOHLI, J.--- This petition is directed against judgment and decree dated 28th March, 2005, passed by learned Additional District Judge-II, Quetta in Civil Appeal No.47 of 2004 and judgment and decree dated 16th October, 2004, passed by learned Senior Civil Judge-II, Quetta in Civil Suit No.85 of 2004, whereby; suit of the petitioner-plaintiff has been directed to be dismissed.
2. ' Facts of the case, in brief, are that by means of mutation number 371 attested on 8th April, 2004, respondents Nos.1 and 2 sold out a plot measuring 4997 square feet, situated in Mouza Ward No.28 Tappa Urban No.2 Tehsil City Quetta to respondents Nos.3, 4 and 5 in consideration of Rs.2,00,000. It has been stated that the petitioner and his three brothers are owners of the adjoining plot, while he is also tenant in the same disputed premises of the previous owner. It has further been stated that the petitioner's father had established a dairy farm known as `Qalandari Bara' after having leased out the same to the petitioner's father. It has been alleged that requisite Talbs were made, and thus; he is entitled to the possession of the same. Written statement was filed and various objections were taken; one of the objections raised by respondents was that in the adjoining plot there are four owners of the property, one of the owners namely Iftikhar Mahmood (petitioner) has filed suit while the three having not been joined are not entitled, to claim right of pre-emption, as the co-sharers have relinquished there right. The learned trial Court vide impugned judgment and decree has dismissed the IA suit relying on the judgments reported in cases of Iftikharuddin v.
3. Jamshed K.A. Market and 11 others PLD 1995 Kar. 608 and Sikandar v. Sultan Muhammad PLD 1974 SC 11. Appeal against aforementioned judgment and decree was filed in the Court of District Judge, Quetta which was transferred to the file of learned Additional District Judge-II, Quetta. The learned Appellate Court also concurred with the view expressed by the trial Court, vide order dated 28th March, 2005. Against aforementioned concurrent findings, present petition has been filed.
4. ' Mr. Muhammad Aslam Chishti, learned counsel for petitioner appeared and stated that co-owner is equally competent to file suit for pre-emption and there is no bar to dislodge the right of the petitioner, who claimed pre-emption. It has further been stated that the learned trial Court hurriedly decided the suit without recording evidence, however; has admitted that there are four co-owners of the adjoining property. He has also admitted that he is tenant in the disputed land, which is subject matter of the pre-emption suit. He has referred to various quotations and stated that there is no distinction between owner and co-owner provided by law. Learned counsel further stated that the judgment referred to has not disclosed the relevant provisions of law nor it decides the case as a whole but; was a judgment passed on interim application. Similarly, the case of Sikandar v. Sultan Muhammad PLD 1974 SC 11 and the case of Iftikharuddin v. Jamshed K.A. Marker and 11 others. PLD 1995 Kar. 608, persuaded to have a different view.
5. ' On the other hand, learned counsel for respondents vehemently opposed the petition and stated that the petitioner is not entitled to claim right of pre-emption, when he is not a full and complete owner of the adjoining land. It has been further stated that the said judgment has been passed on the basis of admitted facts that there are four co-owners, and , thus; on admitted fact the question of law has arisen, which could be determined without recording any evidence.
6. ' I have considered the arguments advanced by learned counsel for the parties and perused the record. It is important to note that the learned single Judge in the aforementioned case of Karachi High Court was pleased to discuss this question in para.10 of the judgment with reference to two judgments of the appellate Court. The discussion made by learned Single Judge of Honourable Karachi High Court at page No.615, are reproduced herein below:-- "10. In regard to the first objection, case of Mr. Abbasi is that the plaintiff being a lessee does not fall within the term of full `owner' as such he cannot base his claim for pre-emption. He has relied upon the cases of Sakina Bibi v. Amiran and others ILR 10 All 472 and the case of Dewanutulla v. Kazem Molla ILR 15 Cal.
184. He has also pointed out that as per document of the plaintiff (Annexure-A to the plaint), the leasehold right of the suit property has expired in the month of June, 1986. According to the averments of the plaint, the plaintiff has claimed that he is owner of 10% share in the adjacent property. Nowhere he has said that the other co-owners have also preempted the sale against the vendees."
7. ' While drawing the conclusions, the learned Judge came to the conclusion that the petitioner in that case was owner to the extent of 10% while other co-owners had not come forward to claim the right of pre-emption, as well as, period of lease had already expired. The relevant conclusions of learned Single Judge are also reproduced herein below:--- "19. Tentatively, the legal and factual position, as it appears from the above discussion is that the plaintiff being co-owner up to the extent of 10% has pre-empted the sale of the suit property for himself and no other co-owners have come forward to claim period of lease of plaintiff's property already expired in the year, 1986 and has not yet been renewed."
8. ' To examine the afore-mentioned judgment in-depth, it is essential to examine the case referred to in the aforementioned judgment in the case of Sakina Bibi plaintiff v. Amiran and others defendants reported in ILR (Allahabad) 1888 at page No.472. The judgment was delivered by a Full Bench of the Privy Council; one of the Honourable Judges had drawn the conclusions; relevant whereof are at page 477 and reported herein below:--- "The learned counsel argued that the passage in the Hedaya meant that actual physical possession of a share, that is to say, of the pre-emptive share, was a condition precedent. The translation as made by Mr. Hamilton is somewhat loose, but it is clear that what is intended to be conveyed by the author of the Hedeya was, that, in what I may call the pre-emptive tenement, the pre-emptor should have vested ownership and not a mere expectancy of inheritance or a reversionary right, or any other kind of contigent right, or any interest which falls short of full ownership. For instance, in the case of a usufructuary mortgagee who is in possession, the application of the passage would require holding that no right is possessed by such a mortgage. I do not think that any other interpretation can be placed upon the passage, and I hold also that such is the case-law as shown by some of the reported cases."
9. ' So far, as the judgment referred to by Mr. Muhammad Ayaz Swati, learned counsel for respondents reported in PLD 1974 SC 11, the question of tenancy and ownership has been discussed and has no relevancy as the claim of petitioner is based on right of Sharik-e-Jar. The question of co-ownership has not been discussed in so many words, but their Lordships of Honourable Supreme Court were pleased to hold that the ownership of the property must vest in pre-emptor. The judgment delivered by their Lordships reported in ILR 1888 (Allahabad) 472 is based on Iledaya' and is followed in the judgment referred in PLD 1995 Karachi 608 are sufficient to conclude pre-emption in the capacity of Sharik-e-Jar. The conclusions drawn by the Courts below are thus; based upon proper appreciation of law, require no interference by this Court. Mr. Chishti, learned counsel for petitioner tried to refer some quotations from various authorities to support that co-owner alone can file the suit and claim right of pre-emption, however; could not refer any judgment directly applicable on the question of law involved in the case, and thus; there is no reason to dissent from the view prevailing in the area for more than a century. Following the dictums reproduced above, the petition being without substance is accordingly, dismissed with no order as to costs.