MUHAMMAD SAFDAR KHAN SIKANDRI, J---The instant civil revision is directed against the judgment and decree dated 1-7-2005 passed by learned Additional District Judge-II, Lakki Marwat whereby the appeal filed by respondents against the judgment and decree dated 4-3-2005 passed by Civil Judge-V, Lakki Marwat was accepted and judgment and decree of the learned trial Court was modified.
2. The brief background giving rise to the instant revision petition is that one Muhammad Nawaz sold an area measuring 5 kanals, 3 marlas in village Masti Khel, District Lakki Marwat to respondents Gul Badshah and Sherin Jan through Mutation No,503 dated 24-12-2001 on payment of Rs,5300. It was averred in the plaint that plaintiff petitioner came to know about the suit transaction on Thursday, the 31st day of January, 2002 at 4-00 p.m. In his Baithak through Abdul Rehman and he immediately performed Talb-e-Muwathibat there and then and on 2-2-2002 sent two notices of Talb-e-Ishhad to the defendants-respondents independently.
3. The defendants-respondents were summoned by the learned trial Court who appeared and submitted their written statement. Out of the divergent pleadings of the parties, the learned trial Court framed as many as 8 issues including the relief. The parties produced pro and contra evidence in support of their respective claims and the learned trial Court after hearing the arguments of learned counsel for the parties, decreed the suit of plaintiff petitioner to the extent of two kanals 11-1/2 marlas on payment of Rs,2,650 in favour of pre-emptor (now petitioner) vide judgment dated 4-3-2005.
4. Dissatisfied with the impugned judgment and decree of the trial Court, the defendants, respondents filed appeal in the appellate Court. The learned Additional District Judge-II, Lakki Marwat vide his impugned judgment dated 1-7-2005 accepted the appeal and modified the judgment and decree of the trial Court to the extent of equal proportionate shares in all the three persons for an area of 1 kanal, 14 marlas and 3 sirsais each and hence, the instant revision petition by the plaintiff petitioner.
5. Learned counsel for the petitioner, while giving reference to the dictum laid down in the titled case of Muhammad Tariq v. Asif Javed (2009 SCM R 240), contended that the plaintiff-petitioner and vendeesdefendants are equally entitled and the suit property would be shared proportionately by them equally in two halves notwithstanding the number of pre-emptors or the vendees.
6. On the contrary, learned counsel for the respondents vehemently maintained that the judgment referred to by counsel for the petitioner in respect of equal shares under section 20 of the N.-W.F.P.
Pre-emption Act, 1987 has been dissented through a Judgment of apex Court handed down by their Lordships in the titled case of Khan Gul and others v. Daraz Khan (2010 SCM R 539) wherein the case of Muhammad Tariq (supra) has thoroughly been discussed in Para 12 of the judgment and it has been held that the parties are entitled to share the suit property per capita, each would get 1/3rd share amongst two vendees and one preemptor would each be entitled to 1/3rd share of the property on payment of 1/3rd sale price by everyone.
7. I gave my anxious consideration to the above arguments and assessed the submissions addressed at the bar in the light of evidence coupled with other materials available on record before me.
8. As the actual controversy survived to be existed between the parties is regarding the shares of the suit property, therefore, it would be expedient and appropriate' to reproduce section 20 of the N.-W.F.P. Pre-emption Act, 1987 in order to resolve the controversy between the parties efficaciously which is as is under:-- "20. Where the pre-emptor and vendee equally entitled.--Where the pre-emptor and the vendee fall within the same class of preemptors and have equal right of pre-emption; the property shall be shared by them equally."
9. The above section was interpreted by their Lordships in the case of Muhammad Tariq. v.
Muhammad Asif (2009 SCM R 240) as under:- "A bare reading of the text of the above section clearly shows that the Legislature has divided the pre-emptor and the vendee into two distinct classes i,e, the pre-emptor and the vendee, and if the pre-emptor and the vendee have equal right of pre-emption the property would be shared by them equally notwithstanding the number of preemptors or the vendees..."
10. In a latest judgment of Honourable apex Court in the titled case of Khan Gul Khan and others v.
Daraz Khan (2010 SCM R 539) their Lordships have pronounced some different view distinguishable from one referred to above and held that:- "As adjudged hereinabove, the parties are entitled to share the suit property per capita; each shall get 1/3rd. The two appellants/vendees and one respondent/ plaintiff-pre-emptor shall each be entitled to 1/3rd share of the property on payment of 1/3rd of the sale price by the respondent/ plaintiff-pre-emptor who is also held to be entitled to the refund of excess amount if deposited by him."
11. In the instant case, as envisaged from the heading of the plaint, landed property measuring 5 kanals, 3 marlas was purchased by two vendees defendants Gul Badshah and Sherin Khan in lieu of Rs,5300 through mutation No,503 dated 24-12-2001 and upon recording evidence and establishing the case by plaintiff-pre-emptor, the trial Court held both the parties entitled to equal share and thereby distributed the suit property in both the two classes to the extent of 2 kanals 11- 1/2 each on payment of Rs,2,650 likely to be paid by the pre-emptor but impugning the said judgment and decree in appeal, the appellate Court vide judgment dated 1-7-2005, modified the said judgment and decree of the trial Court, and held one pre-emptor and two vendees- defendants entitled to equal share to the extent of 1/3 share each, therefore, in view of the dictum reported in 2010 SCM R 539, in the captioned case the appellate Court has correctly modified the judgment and decree of the trial Court to 1/3 of each share under the principle of per-capita shares.
12. In view of the above brief discussion, I have been led to the conclusion that the judgment and decree passed by the appellate Court is based on sound footings and the counsel for the petitioner failed to point out any illegality or material irregularity in the judgment and decree of appellate Court warranting interference by this Court in exercise of revisional jurisdiction and as such the revision petition being without force is hereby dismissed with no order as to costs.