' M. JAVED BUTTAR, J.--- These appeals, by leave, are directed against the judgment dated 24-2- 2003 passed by Peshawar High Court, Peshawar whereby Civil Revision No,15 of 1996 instituted by the appellants was dismissed and Civil Revision No,28 of 1996 instituted by the respondents was partly allowed and the judgment and decree dated 26-9-1995 passed by Honourable Additional District Judge, Charsadda was modified and the respondents were held entitled to 8/16 shares in land comprising Khasra No,1400 as well besides the other land which had been decreed in their favour by the First Appellate Court.
2. Relevant facts are that on 7-5-1976 the respondents/plaintiffs instituted Suit No,236/1 in the Court of Civil Judge, Charsadda for possession through pre-emption against the appellants/defendants in respect of the suit-land measuring 32 Kanals 5-1/2 Marlas fully described in the plaint, on payment of Rs,,16,000 or market value on the basis of co-sharership contiguity and participation in the amenities and appendage which was purchased by the appellants through oral sale evidence by mutation No,5030 attested on 8-5-1975 on payment of Rs,64,000.
' One Hidayatullah Khan also pre-empted the sale in favour of the appellants through Suit No,233/1.
3. Both the suits were consolidated and appellants contested the same by filing written statement.
On their application, the respondents were also impleaded as defendants in the suit filed by Hidayatullah Khan. Learned Trial Court after framing necessary issues and recording evidence of the parties vide judgment and decrees dated 14-3-1984 dismissed both the suits holding that the pre-emptors had no superior right of pre-emption.
4. The above said Hidayatullah Khan did not challenge the judgment and decrees passed by learned Trial Court. The respondents, however, assailed the same through Appeal No,88/13 of 1984.
Honourable Additional District Judge, Charsadda vide his judgment and decree dated 20-3-1985 partially accepted the appeal and a decree to the extent of 8/16 shares in Khasra Nos.1795/1398, 1797/1399 and 1400 was granted in favour of the respondents against the appellants on payment of Rs,15,120 and dismissed their claim with regard to the rest of suit land. Learned High Court vide its judgment dated 26-3-1994 accepted Civil Revisions Nos.724 of 1985 and 761 of 1985 instituted by the parties and remanded the case to the Appellate Court to decide the appeal afresh after recording additional evidence of the parties.
5. On remand learned Appellate Court recorded the statement of Patwari Halqa and after hearing the learned counsel for the parties, vide judgment and decree dated 26-9-1995 partially accepted the respondents' appeal and decreed the respondents' suit to the extent of 8/16 shares in Khasra Nos.1795/1398 and 1797/1399 and the suit was dismissed to the extent of the rest of the suit-land including Khasra No,1400 which was decreed in favour of the respondents in the previous round of litigation.
6. The appellants/defendants as well as respondents/ plaintiffs filed Revision Petitions No,15 and 28 of 1996 and the Honourable Judge of Peshawar High Court vide the impugned judgment dated 24- 2-2003 dismissed the Revision Petition of the appellants, partially accepted the Revision Petition of the respondents, modified the judgment and decree of the Appellate Court and held them entitled to 8/16 shares in Khasra No,1400 as well which was not granted to them by the Appellate Court in the present round of litigation.
7. We have heard learned counsel for the parties at length and have also seen the available record with their able assistance.
8. Learned counsel for the appellants submitted that appellants became co-shares in Khasra No,1797/1399 through inheritance, during the pendency of the respondents' suit, through mutation No,5125 dated 18-2-1979 which is apparent from the statement of CW-1 and the land inherited by the appellants is contiguous to the suit land and is in the same block and therefore, the respondents, who claim superior right of pre-emption merely on the basis of contiguity, did not enjoy the superior right at the time of passing of the decree. It has further been submitted that what to say of appellants enjoying the same status as respondents, the appellants enjoy the superior right as the appellants have become co-shares in the Khata as well. Learned counsel for the appellants in this regard has referred the statement of R.W.P.I Muhammad Shuaib, Patwari Halqa Tarnab which shows that Khasra Nos.1795/1398, 1797/1399 and 1400 are part of in the same Khata No,234/543-44 and since the appellants have become owners in Khasra No,1797/1399, therefore, the appellants have become co-shareres in the above said Khata of the suit land, hence the applicants enjoy the superior right of pre-emption qua the respondents. Learned counsel in this regard has also referred to section 12 of N.-W.F.P. Pre-emption Act, 1950 under which 'he right of pre-emption vests Firstly in the co-sharers in such land and Thirdly in the owners of contiguous property. It is submitted that the respondent's suit has been decreed in their favour on the basis of contiguity i,e, Thirdly and the appellants have also become owners as mentioned above, in the contiguous property i,e, Thirdly which is in the same block also and have become co-shares in the same Khata which falls in Firstly. He has also referred to section 17(2) of the above Act to contend that any improvement in the status of the vendee/ defendant after the institution of the suit, through inheritance or succession will defeat the right of the pre-emptor and under section 16 of the said Act, no decree for pre-emption can be passed in favour of any person unless he has subsisting superior right of preemption at the time of passing of the decree and in the present case the appellants/defendants had acquired the superior right through inheritance in 1979 i,e, much before the passing of the decree by the trial Court on 14-3-1984. He has also placed his reliance on Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153, Muhammad Akram and 3 others v. Muhammad Rashid and 2 others PLD 1994 SC 848 and Ahmad Khan v. Sattar Din PLD 1981 SC 148. Reference has also been made to the (i) written statement of the appellants in which the superior right of pre-emption of the respondents was denied, (ii) statement of D.W.2 Jehanzeb, one of the appellants who stated that appellants were co-sharers in the Khata, (iii) copy of Shajra Kishatwar (Exh.C.W.1/3) showing the contiguity of Khasra Nos. 1398, 1399 and 1400 with each other and that the appellants also became co-owners in Khasra No,1399 and the new number which has been allotted to the appellants is 1797/1399/I, (iv) copy of Aks Kishatwar (Exh.P.W.1/2) which shows that all these Khasra Nos. Comprising the land in dispute and the above said ownership of the appellants is in the same block, (v) statement of C. W.1 Saleh Muhammad Patwari Halqa, giving the detail of inheritance of the appellants in Khasra No,1797/1399 in 1979 and
(vi) statement of R.W.P I Muhammad Shuaib Patwari showing the co-ownership of the appellants in Khatas Nos.234/543-44 in which the suit land is also situated.
9. On the other hand, while vehemently opposing the appeals, learned counsel for the respondents has supported the impugned judgment and has further submitted that appellants did not enjoy superior right of pre-emption and even otherwise, any improvement in the status of the defendants is subject to the rights of pre-emptor. He has however, not disputed the improvement in the status of the appellants because of the inheritance in 1979 i,e, before the passing of the pre- emption decree in favour of the respondents.
10. After having carefully examined the entire record, we are of the view that the judgments and decrees passed by the Courts below which have been impugned before us suffer from gross misreading and a non-reading of evidence and also from legal infirmity. The suit land which has been decreed in favour of the respondents fall in Khasra Nos.1795/1398, 1797/1399 and 1400. These Khasra Nos. Are part of Khata No,234/543 as is apparent from the statement of R.W.P.I Muhammad Shuaib Patwari. The appellants became co-owners in Khasra No,1797/1399 through inheritance Mutation No,5125 attested on 18-2-1979 i,e, much before the passing of the pre-emption decree in favour of the respondents. This fact is apparent from the statement of C.W.I Saleh Muhammad Patwari. The new number assigned to the appellants because of their inheritance is 1797/1399/1.
Thus the appellants became co-owners in Khatas Nos.234/543 in 1979 in which the suit land is situated. Thus the appellants acquired superior right of pre-emption as owners in the Khata as against the respondents much before the passing of the decree in favour of respondents who did not enjoy any such status and were claiming superior right of pre-emption merely on the basis of contiguity etc. Which is a right inferior falling in the category Thirdly as against the co-owners in the same Khata which falls in the category Firstly. Therefore, the respondents' suit was liable to be dismissed and the Courts below overlooked this evidence available on the record although the appellants throughout denied the superior right of pre-emption of respondents. The statement of C.W.I Saleh Muhammad Patwari was recorded on 25-2-1997 by the appellate Court under the remand order passed by learned High Court and it proved the factum of acquisition of proprietary rights by the appellants in Khasra No,1797/1399 through inheritance in the year 1979. After the acquisition of such rights in the said Khasra number, the appellants remained owners in the same throughout. Thus the appellants had superior right of preemption as against the respondents at the time when the pre-emption decree was wrongly passed in favour of the respondents by ignoring this very important piece of evidence.
' Furthermore, perusal of Shajra Kishatwar (Exh.C.W.1/3), Shajra Kishatwar (Exh.P.W.1/2) shows that the land inherited by the appellants in 1979 falling in Khasra No,1797/1399 is contiguous to the suit land, the respondents claimed superior right merely on the basis of contiguity which status was enjoyed by the appellants also from 1979 onwards. Therefore, on this basis also the respondents' suit was liable to be dismissed because even if the respondents' claim of contiguity was accepted they merely enjoyed the equal status of right of pre-emption along with the appellants on this basis and did not enjoy any superior right of pre-emption against, the appellants whereas under the law governing the present suit which was instituted in the year 1979 i,e, N.-W.F.P. Pre-emption Act, 1950, the respondents/plaintiffs had to show a superior right of pre-emption throughout i,e, at the time of the sale, at the time the institution of the pre-emption suit and at the time of passing of the pre-emption decree. Section 16 of the above Act provided that no decree for pre-emption could be passed in favour of any person unless she had subsisting superior right of preemption at the time of passing of the decree. The arguments of the learned counsel for the respondents that any improvement in the status of the defendants is subject to the right of the pre-emptors has also no force. Section 17(2) of the above Act re-cognized the improvement in the status of the vendee/defendant through inheritance of succession after the institution of the suit for the purposes of defeating the right of preemptors.
' In view of the above mentioned, these appeals are allowed, the judgments and decrees passed by the Courts below are set aside and the suit instituted by the respondents/pre-emptors is dismissed. There are, however, no order as to costs.