1. ANWARUL HAQ, C. J.-This petition seeks leave to appeal against the judgment of the Lahore High Court dated the 8th of March, 1977, whereby the second appeal filed by the respondent was partly accepted and his suit for pre-emption was decreed to the extent of 10 marlas out of the disputed land. The land was originally owned by one Anwar Ali and was measuring a little over one kanal. He sold it on the 29th of January, 1967, to one Ashiq Hussain, who in turn sold 10 marlas out of the same: to Muhammad Sharif on 23rd August, 1967 and constructed shops thereon. One Irshad Ali filed a pre-emption suit against Ashiq Hussain attd Muhammad Sharif regarding both the sales.
2. The suit was decreed in his favour on the 8th of June, 1968, and the decree became final as no one agitated against the same by way of appeal. Having obtained the entire area in dispute under the pre-emption decree in his favour, Irshad Ali sold the same to the present petitioner Ali Akbar.
3. Thereupori respondent Muhammad Anwar challenged the sale by way of pre-emption. His suit was dismissed by the Civil Judge on the 11th of December, 1972, and his appeal was also dismissed by the District Court on the 13th of May, 1974. However, in second appeal, a learned Judge in the High Court has decreed the suit to the extent of 10 marlas only, on which shops had not been constructed and which had formed the subject matter of sale by Ashiq Hussain to Muhammad Sharif.
4. Leave to appeal is sought mainly on the ground that as shops had been constructed on a part of the land in dispute, and the rest of which was surrounded by a boundary wall, the land was exempted from pre--emption under section 5 of the Punjab Pre-emption Act and by dividing the two portions of the land, the learned Judge bad allowed partial pre-emption which was not permissible in view of the dictum of this Court in Malik Hussain and others v. Ram Chand and others PLD '1970 SC 299: E.s. It is con--tended by Sh. Abdul Mannan that the transaction being an indivisible one, decree pre-emption could not have been passed in respect of 10 marlas only out of the total area of nearly 21 marlas.
5. We regret we are not impressed by these submissions. The right of pre-emption in respect of sales of agricultural land and village immov--able property is converted by section IS of the Punjab Pre- emption Act, 1913, but section 5 of the same Act contains certain exceptions in respect of certain buildings like a shop, serai or katra, a dharam--sala, mosque or other similar building. It is clear, therefore, that only that part of the land in dispute would be exempt from pre-emption on which shops had been constructed. It is not the case of the petitioner) that shops have been constructed on the entire area of one kanal. It is only asserted that besides the shops the rest of the area is surrounded by a boundary wall, but the existence of a boundary wall does not automatically qualify for exemption from pre-emption. From the history of alienations given earlier in the order, it appears that Ashiq Hussain had constructed only on 10 marlas whereas he had sold 10 marlas to Muhammad Sharif. The land thus stood clearly bifurcated in two parcels when the petitioner's predecessor-in-interest, namely, Irshad Ali, had filed his pre-emption suit against the two vendees Ashiq Hussain and Muhammad Sharif in the circumstances, it is difficult to accept the contention that the land was one indivisible parcel.
6. Invocation of the doctrine of partial pre-emption, as explained by this Court in the case of Malik Hussain and others is misconceived, for] this concept comes into play only when a pre-emptor does not ask fort his substitution in respect of the whole of the subject-matter of the sale to which his right of pre-emption extends. A pre-emptor is not to pay the full sale price if his right of pre- emption extends over only, a portion of the property sold or if a portion of the property is capable of preemption and the other is not. Now, in the present case the pre-I emptor had asked for the whole of the property sold but the High Court has found that part of the property was covered with shops and therefore, was not pre-emptible under section 5 of the Pre-emption Act. 1n the circumstances, there could be no bar to the grant of a decree for the remaining area of I0 marlas which was, in fact, as separate parcel of the land at the time Irshad Ali had pre-empted the same.
7. For the foregoing reasons, this petition fails and is hereby dismissed.