' MUHAMMAD AZAM KHAN, J.---This appeal, by leave of the Court, arises out of the judgment and decree of the Azad Jammu and Kashmir High Court dated 21st February, 2009, whereby Civil Appeal No,130 of 2005 has been dismissed.
2. The necessary facts for disposal of the appeal are that Mst. Nazeer Begum and others executed a sale-deed in respect of land measuring 11 kanals 2 marlas comprising Survey Nos. 630 (old) 42 (new), 629 (old) 114 (new), `Khata' No,13/24, Khewat No, 1, situate in village Arnow, on 7th April, 1999, in favour of the appellant, herein. The plaintiff-respondent, herein, filed a suit for pre-emption in the Court of Senior Civil Judge, Mirpur, on the ground that he is co-sharer and his land is contiguous to the land sold. After necessary proceedings, the trial Court dismissed the suit on 26th October, 2004.
On appeal, the District Judge, Mirpur, reached to the conclusion that the plaintiff and defendant- vendee are co-sharers in. The land, therefore, their right is equal. However, the land of plaintiff is contiguous to Survey No, 114, and decreed the suit to the extent of this survey number. The appellant filed an appeal from the said judgment and decree of the District Judge, Mirpur, in the High Court. A learned single Judge in the High Court dismissed the appeal vide impugned judgment on 21st February, 2009.
3. Ch. Muhammad Yunus Arvi, counsel for the appellant, argued that it is admitted position that both the appellant as well as respondent are co-sharers in the land. It is also admitted that Survey No,118 is contiguous to 'Survey No, 114, but the plaintiff was not owner in Khewat No,4/5, Survey No, 118 at the time of institution of the suit. Survey No, 118 was entered in the name of his mother, as an owner. The plaintiff has not alleged in the plaint that he is filing the suit in the capacity of being son of Mst. Zainab Bibi, his mother. He argued that the suit was instituted on 7th April, 1999, and mutation of inheritance of Mst. Zainab Bibi, mother of the plaintiff, was attested in favour of the plaintiff on 2nd June, 1999. At the time of institution of the suit, the plaintiff was not owner of the land falling in Survey No, 118, therefore, no right of pre-emption existed in favour of the appellant on the ground of contiguity. He relied upon the cases titled Muhammad v. Allah Ditta (1990 CLC 765), Muhammad Malik v. Ch. Yaqoob Javed Batalvi and another 2004 CLC 882, Abdul Rehman v.
Muhammad Afsar Khan (PLD 1978 SC (AJ&K) 156), and Faiz Ahmad v.. Muhammad Siddique and another 1999 M LD 1270. He further argued that the plaintiff had filed the suit only for pre-emption and he has not prayed for delivery of possession, therefore, the suit without delivery of possession is not maintainable.
4. While controverting the arguments, Raja Saadat Ali Kiani, counsel for the respondent, argued that Mutation No, 40 in respect of inheritance of Mst. Zainab Bibi, mother of the plaintiff, was attested on 2nd June, 1999 while the suit was filed on 27th July, 1999. The plaintiff was owner in Survey No,118, Khewat' No, 4/5. Prior to filing of suit he had right of pre-emption. The judgment of the District Judge as well as the High Court on the point is perfectly legal. He further argued that under the provisions of Islamic law, on the death of a Muhammadan, his legal heirs immediately become owners in the estate and formal attestation of mutation is not necessary.
5. We have heard the learned counsel for the parties and perused the record. The pre-emption suit relates to the land measuring 11 kanals, 2 marlas comprising Survey Nos. 630 (old) 42 (new), 629
(old) 114 (new), Khata' No, 13/24, `Khewat' No,
1. It is admitted position that both the vendee- defendant and the plaintiff-preemptor are co-sharers in Khewat' No,
1. It will be useful to reproduce section 14 of the Right of Prior Purchase Act, 1993 Bk.:-- "14 (1) Subject to the provisions of section 13 the right of prior purchase in respect of agricultural land and village immovable property shall vest.---
(a) firstly in, Shafi Sharik;
(b) secondly in Shafi Khalit; and
(c) thirdly in Shafi Jar.
' Explanation: '
(1) `Shafi Sharik' means a person who is a co-sharer in the corpus of the undivided immovable property sold with other person or persons.
(2) `Shafi Khalit' means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation.
(3) `Shafi Jar' means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold.
(2) Where all the classes of preemption referred to in subsection (1) are the claimants, the first class shall exclude the second and the second shall exclude the third.
(3) Where there are more than one participators in the special rights attached to the immovable property sold the person having special right shall have precedence over a person having a general right.
' Illustration: ' A garden is irrigated by a watercourse which opens from small canal, if this garden is sold, a person having right of irrigation from watercourse shall have precedence over a person having right of irrigation from the canal. But if such garden is irrigated from the small canal, the person having right of irrigation from watercourse as well as the person having right of irrigation from the canal shall both have right of pre-emption.
(4) Where there are more than one pre-emptors and one has right of passage and the other has right of passage of water attached to the immovable property sold, the person having right of passage shall have precedence over the person having right of passage of water.
(5) A, participator in the special rights having his property on the basis of which he claims to be the preemptor nearer to the immovable property sold shall have precedence over the pre-emptor having such property not so nearer to the immovable property sold."
(6) A perusal of section 14 of the Right of Prior Purchase Act, 1993 Bk., leaves no doubt that right of prior purchase vests firstly in Shafi Sharik. Shafi Sharik is defined as a person who is a co-sharer in the corpus of the undivided immovable property sold with other person or persons; secondly the right of pre-emption vests in Shafi Khalit, who has special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation; and thirdly it vests in Shafi Jar which means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold. Right of preemption can be exercised on any of the aforesaid grounds. If a person is co-sharer in the body of mahar, he has a right to file a suit of pre-emption on the basis of this ground. Similarly, he has right to file a suit of pre-emption on the ground of Shafi Khalit and Shafi Jar independently.
(7) If the plaintiff-pre-emptor and defendant-vendee are co-sharers in the land sold, their right is equal and the plaintiff has not filed a suit on any of the other grounds, namely Shafi Khalit and Shafi Jar, then the suit merits dismissal, but if a plaintiff has filed a suit apart from being B Shafi Sharik on any other ground and that ground is not available to the defendant, then the suit is to be determined on the basis of the said ground. In the present ease admittedly both the parties are Shafi Sharik in ' Khewat' No,
1. The plaintiff has filed the suit of pre-emption apart from being Shafi Sharik on the ground of Shafi Jar. The lower Courts dismissed his suit to the extent of Survey No, 630
(old) 42 (new). The controversy only left is in respect of Survey No,
114. The District Judge decreed the suit of pre-emption on the basis of being Shafi Jar which was maintained by the High Court.
8. It was vehemently contended by Ch. Muhammad Yunus Arvi that the suit was filed on 7th April, 1999 and the mutation of inheritance of Mst. Zainab Bibi, mother of the plaintiff, was attested in favour of the plaintiff on 2nd June, 1999, therefore, the plaintiff was not a co-sharer in Survey No, 118, `Khewar No, 4/5 at the time of institution of the suit. Although Survey No, 118 is contiguous to Survey No, 114, but it was not in the ownership of the plaintiff, therefore, he had no right of pre-emption at the time of filing the suit. A perusal, of the record reveals that the contention of the counsel that mutation was sanctioned after the filing of suit is misconceived. There is a copy of mutation of inheritance of Mst. Zainab Bibi, mother of the plaintiff, on the record which reveals that Mst. Zainab Bibi died in the year 1996. Mutation of inheritance was attested on 2nd June, 1999 and the suit of pre-emption was filed on 27th July, 1999. The plaintiff-preemptor was. An owner in Survey No, 118, `Khewar No, 4/5 at the time of filing of the suit.
9. Even otherwise, under the provisions of Muhammadan Law, on the death of a Muslim his property devolves on his legal heirs and they are entitled to inherit according to the shares prescribed by Muslim Law. No formal attestation of mutation is necessary. We may refer to section 56 of Principles of Muhammadan Law, revised edition 2006, which is as follows:-- "56. Vested inheritance.---A 'vested inheritance' is the share which, vests, in an heir at the moment of the ancestor's death. If the heir dies before distribution, the share of the inheritance which has vested in him will pass to such persons as are his heirs at the time of his death."
' A perusal of the above referred provision of law leaves no doubt that as soon as a Muslim dies, the estate vests in his heirs and they become owners. The proposition came under consideration of this Court in an unreported case titled Muhammad Aziz Khan and 11 others v. Feroze Din and 11 others Civil Appeal No, 6 of 2006 decided on 10-1-2011. In paragraph 7 it was observed by this Court as under:-- "(7) We may observe that on the death of a Muslim his property devolves on his legal heirs and they are entitled to inherit the same according to their share prescribed under Muhammadan Law.
In the instant case Mst. Resham Jan is proved to be widow of Kaloo who died during the Dogra Regime. She was entitled to inherit his estate according to her share. The argument of the counsel for the appellants that mutation of the estate of Kaloo was sanctioned and Mst. Resham Jan was not entered as sharer, she never challenged it, therefore, no decree for possession can be passed in her favour particularly when she has not challenged the mutation is misconceived. This Court faced the similar situation in a case reported as Bostan and 5 others v. Mst. Sattar Bibi and 11 others (PLD 1993 SC (AJ&K) 24). The controversy involved was that three daughters of a Muslim were not entered in mutation on his death. Instead, an entry was made that they had relinquished their shares. Later on, one of them challenged the Revenue Record. While dealing with inheritance and question of limitation, this Court resolved that on the death of a Muslim his legal heirs are entitled to inherit although their names do not appear as heirs in the Revenue Record. They are co-sharers in the land and entitled to a decree for joint possession. The relevant, observation of the Court is reproduced as under:- 'In the instant case the trial Court and the first appellate Court expressed the view that as the entries in the Revenue Record were challenged beyond the period of six years when the same were made, the suit was time-barred. It may be observed that the entries in the Revenue Record whether of mutation or record-of-rights do not by themselves vest title in heirs; rather the same, at the most, are an - evidence of title and if those are proved incorrect in view of facts admitted or proved, the title of an heir is not adversely affected. Thus, we fully endorse the view taken by the Supreme Court of Pakistan in the above cited case that, in case of a' Muslim owner, the estate left by him would devolve on heirs on his death and the fact that such heirs did not wish to inherit is of no legal consequence. In the instant case all that can be said is that although the shares of the plaintiff-respondent had devolved on her on the death of her father but the mutation was not attested in her favour because she had relinquished her share in favour of the, appellants. If the plaintiff-respondent wanted to transfer her share to the appellants, she could do so as permissible under law, i,e,through a registered document. The mere oral statement before the Collector that she does not want to get share out of the estate left by her father would not extinguish her title in the suit land and vest the same in the appellants to her exclusion. As she was a co-sharer with the appellants, though was not so recorded in the Revenue Record, she would be deemed to be in continuous possession of her share and any adverse entry' in the Revenue Record would not oblige her to challenge the same within a period of six years of the entry, because the cause of action in such cases would accrue only when real threat is posed to her title such as when the defendants- appellants denied her title in unequivocal terms. Even if it is assumed for the sake of argument that an adverse entry in the Revenue Record would furnish her with a cause of action, then every fresh entry made in the Revenue Record to her detriment would give a new cause of action to her. Thus, in that case it cannot be said that the relief sought by the plaintiff pertaining to the entries in lamabandi' 19S1-1982, was also time-barred, because the suit in the instant case was instituted on 4-8-1986 and so was within six years of the entries made in lamabandi' of year 1981-1982. Thus, the relief regarding the entries in Jamabandi' pertaining to year 1981-82 cannot be refused on the ground of limitation. 'It is also settled principle of law that subsequent entries in the record-ofrights are preferred to those made earlier. The natural consequence of this would be that the declaratory suit would be within the limitation so far as `Jamabandi' of the year 1981-1982 is concerned and, thus, entries in Jamabandis previous to year 1981-1982 would not create hindrance to decide the question of the title of the plaintiff-respondent or to pass a decree for joint possession in her favour.
' There is yet another aspect of the matter. It may be observed that if the title of the plaintiff- respondent in the suit-land cannot be said to have extinguished, it cannot be argued that as the declaration regarding the entries is time-barred, the decree for joint possession cannot be passed in favour of the plaintiff-respondent despite the fact that she has a subsisting right to the suit-land.
It would be paradoxical to say that although her title as co-sharer in the suitland exists yet she is not entitled to a decree for joint possession because in the Revenue Record she has not been recorded as such, despite the fact that it is proved on the record that the said entries are violative of law and are void. Thus, even if it is said that the relief so far as it relates to the declaration that entries in Revenue Record are void is time-barred, the relief regarding the decree for joint possession prayed for by the plaintiff-respondent cannot be denied."
' In a case' titled Muhammad Ashraf Khan v. Mst. Resham Jan 2001 M LD 212 this Court resolved that if custom is not specifically alleged and proved, the initial presumption is in favour of the application of Muslim Personal Law. It will be useful to reproduce the relevant observation of the Court:--
(5) After hearing the re spective contentions of the learned counsel for the parties and perusing the record it may be stated that the Witness for the plaintiff Muhammad Siddique nowhere mentioned in his statement that what was the custom prevalent between the parties. Similarly Muhammad Ashraf Khan, plaintiff made a general statement that prior to the partition the custom was prevalent. He did not point out any detail as to whether the parties before promulgation of the Muslim Personal Law were governed by the custom. It may also be pointed out that the initial presumption is in favour of the application of Muslim Personal Law unless the custom is alleged and proved strictly. In our considered view the appellant-plaintiffs miserably failed to allege and prove the custom so as to deprive the defendant Rehmat Jan the daughter of the deceased from inheritance of her father' ."
10. While relying upon a case titled Abdul Rehman v. Muhammad Afsar Khan (PLD 1978 SC (AJ&K)
156), the learned counsel for the appellant asserted that when the vendee and pre-emptor are enjoying equal status, no suit of pre-emption is maintainable. We respectfully agree with the enunciation of law in the said judgment. The said judgment was correctly delivered in the light of section 14 of the Right of Prior Purchase Act applicable at that time. Now the law has been changed and right of pre-emption vests in three classes as discussed in the earlier part of this judgment.
The plaintiff, apart from being a co-sharer, has filed the suit on the basis of Shafi Jar. No land of vendee-defendant is contiguous to Survey No, 114 while Survey No, 114 is contiguous to Survey No, 118 which is in the ownership of the plaintiff. The rule of law is applicable to the extent of Survey No, 630 (old) 42 (new).
11. There is another argument of the counsel for the appellant that, the plaintiff claims inheritance from the estate of Mst. Zainab Bibi and he has not specifically stated as such in the plaint, therefore, his suit was not maintainable. He referred to the case reported as Muhammad v. Allah pitta (1990 CLC 765). In the said case the plaintiff alleged his prior right of purchase as a co-sharer in the suit-land and as legal heir of the vendor. The vendee raised an objection that he has not specifically mentioned the relationship. The Court repelled the objection. This case has no application to the facts of the case in hand.
' The case reported as Faiz Ahmad v. Muhammad Siddique 1999 M LD 1270 and another relied upon by the counsel for the appellant lays down the correct law that by obtaining the land, in same Khewat' the appellant became a sharik-e-khewat' and vendee being sharik-e-khewat' the suit was liable to be dismissed.
' The case reported as Muhammad Malik v. Ch. Yaqoob Javed Batalvi and another (2004 CLC 882), referred to by the counsel for the appellant, lays down the correct law that when a vendee becomes a co-sharer by purchasing the land out of one survey number and Khewat' , he is deemed to be a co-sharer in whole survey number and Khewat' . This authority is not helpful to the case of the appellant.
12. The conclusion is that the plaintiff pre-emptor as well as the vendee-defendant are co-sharers in Khewat' No,
1. The plaintiff has filed the suit apart from being Shafi Sharik on the ground of Shafi Jar. Survey No, 114 is contiguous to Survey No, 118 which is in the ownership of the plaintiff. The District Judge as well as the High Court correctly passed the decree in respect of Survey No, 114 in favour of the plaintiff on the basis of Shafi Jar.
13. We have considered the argument of the counsel for the appellant that the suit of the plaintiff was not maintainable because he has filed the suit only of pre-emption and he has not prayed for delivery of possession. The argument is misconceived. A perusal of the record reveals that at the time of sale, the plaintiff was in possession of the land under Survey No, 114 as ghair moroos'. If a person is in possession of the land, it is not the requirement that while filing a suit of preemption he must pray for possession. Even otherwise, under Order XX, Rule 14, C.P.C., it is the duty of the Court that when it passes a decree on the basis of right of prior purchase, it must order the defendant- vendee to hand over the possession of the land on payment of the decretal amount to the plaintiff.
Our above view is fortified by the judgment in the case titled llahi Bakhsh and others v. Mst. Bilqees Begum (PLD 1985 SC 393) wherein it has been observed:-- "The term 'pre-emption suit' is a suit for possession of a property in dispute on payment of its sale price or market value. A decree enforcing the pre-emption right must direct the vendee to deliver possession of the property to the pre-emptor-plaintiff on condition and subject to the plaintiff paying the sale price of market value of the property in Court for the benefit of the vendee vide Order XX, Rule 14, C.P.C. The decree must further direct that if the plaintiff does not pay the said amount within the time specified in the decree, then the suit shall stand dismissed. ...............................
' The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to the costs.