Raja Saeed Akram Khan, J.--This appeal, with leave of the Court, has been directed against the judgment and decree passed by the High Court on 17.12.2002, whereby appeal filed by the appellants, herein, was dismissed.
2. The summary of the case is that the appellants filed a suit for possession on the basis of prior right of purchase against the sale-deed executed on 14.7.1986 in favour of respondent with regard to the land measuring 13 kanals 8 marlas, comprising Survey No, 91 min situate in village Chakias, Tehsil Haveli for a consideration of Rs, 30,000/- on the ground that the appellants are agnates and co-sharers with the vendor as against the vendee, hence they have prior right to purchase the land. The respondent contested the suit by filing written statement. Out of pleadings issues were framed and after recording evidence of both the parties, the trial Court dismissed the suit vide judgment and decree dated 29.2.2000. The said judgment and decree of the trial Court were assailed by way of appeal before the Additional District Judge, Kahuta, Haveli. The same was dismissed on the sole ground that the appellants are not co-sharers in that specific survey number. The said judgment of Additional District Judge was challenged in the High Court who also dismissed the appeal vide impugned judgment and decree dated 17.12.2002. Hence this appeal.
3. Syed Nazir Hussain Shah Kazmi, the learned counsel for the appellants, has contended that the judgments of the High Court as well as the Courts below are against law and facts of the case. All the Court below have not examined the oral as well as documentary evidence in its true perspective, therefore, there is misreading and non-reading of evidence. In spite of the fact that the Courts below have admitted that the suit land falls in the same ahewat' and same lhata' No, 61 in which the appellants are also entered as co-sharers, the suit by the trial Court and the appeals in the appellate forums were dismissed. All the Courts below have failed to determine that in the presence of the overwhelming evidence on the record, right of prior purchase has been proved.
The learned counsel further argued that all the Courts below did not even bother to examine the documents produced before the trial Court, i,e,, Jamabandi, Exhs. 'PI' and PJ' relating to year 1982 and copies of other revenue record which were produced as Exhs. (PA', `PBJ, 'PC', 'PD', PF, 'PG' and 'PH' respectively. In all this revenue record, the names of the appellants are entered as co-sharers and owners in `Khewat' No, 46, `Khatooni' No, 63 and khata' Nos, 88, 89, 90, 91 min, 91, 93, 94 and 95 respectively. He argued that the total land of Survey No, 91 is 21 kanals and 15 marlas in which the appellants are co-sharers and the disputed land measuring 13 kanals 8 marlas is also included in Survey No, 91 which is re-numbered as Survey No, 91 min. Out of Survey No, 91 min, land measuring 8 kanals 7 marlas is still in the ownership and possession of the appellants. He lastly argued that all the Courts below have failed to adhere to the law on the subject in which it has been consistently been held that a person who is a co-sharer in one survey number in a `Khewat', he would be deemed to be a co-sharer in the whole survey numbers falling in a `Khewat'. Therefore, the finding of the Courts below that the appellants are not co-sharers in a specific Survey No, 91 min is not sustainable in the eye of law. He has referred to the cases titled Rehmat Ali and another v. Soofi Muhammad Azam [1996 SCR 191], Faiz Ahmad v. Muhammad Siddique and another [1999 SCR 83] and Muhammd Malik v. Ch. Yaqoob Javed Batalvi and another [2002 SCR 47].
4. On the other hand Raja Muhammad Hanif Khan, the learned counsel for the respondent, refuted the arguments advanced by the learned counsel for the appellants. He submitted that all the three subordinate Courts have concurrently recorded findings of fact. No illegality and infirmity has been brought on record. The appeal is liable to be dismissed on this sole ground. He further argued that the High Court and two Courts below have appreciated the evidence in its true perspective and unanimously came to the conclusion that the appellants have failed to establish their right of prior purchase. He lastly argued that an owner in a `Khewat' is altogether a different matter whereas for the purpose of law of pre-emption to be a co-sharer in the disputed or sold property is totally a different matter. He has referred to the cases reported as Abdul Rehman v. Muhammad Afsar Khan [PLD 1978 SC (AJ&K) 156] and Ghulam Begum and 10 others v. Khan Muhammad Khan and another [PLD 1984 SC (AJ&K) 38].
5. We have heard the arguments of both the learned counsel for the parties at some length and also perused the record with utmost care. To ascertain about the persons who have right of prior purchase, Section 14 of the Right of Prior Purchase Act, 1993 is relevant. It would be appropriate to reproduce Section 14 of the Right of Prior Purchase Act, which reads as under:-- "14. Persons in whom right of prior purchase vests in respect of sales of agricultural land and village immovable property.--(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-i-Sharik;
(b) Secondly in Shall Khalit; and
(c) Thirdly in Shafi Jar.
Explanation.--
1. "Shafi Sharik" means a person who is a co-owner 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 pre-emptions referred to in sub-section (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."
6. The crucial point for determination by this Court is whether the appellants are `Shafi-i-shareek' and if so, have they established their right of preemption. To resolve the controversy, we have to examine the word `Khewat'.
7. The ownership of an agricultural land is called 'holding', `Khewat' or 'Khata'. If a person has one holding in one village, he is owner of one property. If he has more than one lhata' or holding in a village, he is owner of more than one property. On the contrary, if a holding comprises more than one khasra number, he still remains the owner of one property, and does not become owner of as many properties as there are khasra numbers. The word `holding' was defined in subsection (10) of Section 4 of the West Pakistan Land Revenue Act, 1967 which means a share or a portion of an estate held by one land owner or jointly by two or more land owners'.
8. A holding of land which comprises different number of fields bearing different khasra numbers remains one property and not as many properties as there are khasra numbers. This position can be well understood if we refer to the analogy of a house consisting of more than one room.
Suppose a vendee sells a portion of house and that portion adjoins the portion that enters to his house, he will have the right of entire portion though consists of more than one rooms, some of which are not contiguous to his house. So in view of above analogy or definition of the word `Khewat' we have examined the present case in the light of revenue record made available. While examining Jamabandi Exhs. 'PI' and `PJ' relating to year 1982 and copies of other revenue record which were produced as Exhs. 'PA', TB', 'PC', `PD', `PF', 'PG' and 'PH', the names of the appellants are entered as co-sharers and owners in `Khewat' No, 46, lhatooni' No, 63 and lhata' Nos, 61, 62, 63, comprising Khasra Nos, 88, 89, 90, 91 min, 91, 93, 94 and 95. It is also evident from the record that total land under Survey No, 91 is 20 kanals, 15 marlas and the names of the appellants are entered as co-sharers. It is also admitted position that the disputed land is also included under Survey No, 91 which is renumbered as Survey No, 91 min, Measuring 13 kanals, 8 marlas. Out of Survey No, 91 min, the land measuring 8 kanals and 7 marlas is still in the ownership and possession of the appellants.
9. From the above referred record it has been established that the appellants are co-sharers in one survey, number and `Khewat'. Therefore, it can safely be held that the appellants are `shareek khewat'/co-sharer. There is no cavil with the proposition that a person who is co-sharer in one survey number in a `Khewat' would be deemed to be a co-sharer in whole survey numbers comprising in the `Khewat' as laid down by this Court in a case reported as Muhammad Malik v. Ch. Yaqoob Javed Batalvi and another [2002 SCR 47], in which it has been observed as under:-- ".....It is well settled principle of law that a person who becomes co-sharer by purchasing land out of one of survey numbers in Khewat, he would be deemed co-sharer in whole of the survey number comprised in a Khewat."
Similarly in the landmark judgment of this Court rendered in a case titled Abdul Rehman v.
Muhammad Afsar Khan [PLD 1978 SC (AJ&K) 156] in which the words 'co-sharer' and `khewat' have been dealt in detail. It was observed at page 159 as under:-- "......For proper appreciation of the point involved it is necessary to ascertain the meaning of the term. Khewit which is equivalent to English word holding. 'Holding' under Section 3(4) of Land Revenue Act means a share or portion of an estate held by one land owner or jointly by two or more land owners and the Khewit number is the number of the owner's 'holding' as has been stated by Cola Buck and Agarwal at page 9 in their book `The Mutation work in the Punjab'."
It was further observed as under:-- "The phraseology of Section 14 (fourthly) of the Right of Prior Purchase Act has been imported from Section 15, fourthly, Punjab Pre-emption Act. Section 12, firstly, of N.-W.F.P. Preemption Act is also couched in identical words. This sub-clause confers on the co-sharer the right of prior purchase. In order to determine who is a co-sharer, the interpretation placed on this word by the Courts in Pakistan thus can provide a useful guide. The word 'co-sharer' clearly signifies that there are other persons as well who have a right in the property."
In another case reported as Faiz Ahmed v. Muhammad Siddique and another [1999 SCR 83], in which `shareek Khewat' has been highlighted and held that a person who is `shareek Khewat' has the right of preemption. It was held as under:-- "8. It is thus clear that by obtaining land in the same Khewat the appellant became a `shareek Khewat' by improving his . status after the sale deed. The suit filed by Muhammad Siddique was based on the plea that he was `shareek Khewat'. When it transpired that Faiz Ahmad was also a `shareek Khewat' it was sufficient for dismissal of the suit as was rightly done by the learned Sub- Judge."
We are also fortified by a judgment of the Lahore High Court in a case titled Muhammad Sharif and 6 others v. Shabbir Hussain and 2 others [1986 CLC 2672], wherein it has been held as under:-- "The learned counsel for the respondents cited the judgment of the Supreme Court of Pakistan, Muhammad Muzaffar Khan v. Muhammad' Yusuf Khan PLD 1959 SC. (Pak.) 9 which, after distinguishing the precedent cases quoted by the learned counsel for the appellants, laid down the rule which recognises the respondents to be co-sharers of the land in dispute as the Khewat admittedly was undivided and had not been partitioned. In that view of the matter the respondents' right of pre-emption is indisputably superior to that of the appellants."
In another case reported as Muhammad Muzaffar Khan v. Muhammad Yusuf Khan [PLD 1959 SC (Pak.) 9], it was observed as follows:-- The vendee of a co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner, in an undivided Khata, does not become a co- sharer in that Khata."
In a case titled Ahmad Khan u. Sattar Din [PLD 1981 SC 148] it was held as under:-- "After hearing the learned counsel for the parties at some length, we are of the view that there is merit in the submissions made on behalf of the plaintiff-respondent. In the first place, it seems to us that the learned Judge in the High Court was clearly in error in holding that the co-ownership of the plaintiff in the water channel bearing Khasra No, 108 did not make him the owner of land contiguous to Khasra No,
110. It is an admitted position that the water channel adjoins Khasra No, 107 as well as Khasra No, 110, and it belongs to `Muhazi Malikan'; in other words, owners of all the Khasra numbers abutting on this water channel would be co-sharers in the same. Their shares might correspond to the frontage of their land abutting on the channel, but this does not mean that they are not to be regarded as co-owners of the water channel as a whole. The learned Judge in the High Court seems to have fallen in error in thinking that, the right of each owner of adjacent land in the water channel would be specifically limited to the frontage of his own land, as such a proposition is contrary to the concept of co-ownership in land or watercourses. A co-owner is to be deemed to be the owner of every part of the watercourse, although the extent of his ownership, vis- a-vis the other owners, would be regulated by, or correspond to, the size of the frontage of his own land, but not physically confined to that portion only.
On this view of the matter, it seems to us that the trial Court as well as the District Court were right in thinking that on account of his being a co-owner in the water channel bearing khasra No, 108, the plaintiff was entitled to pre-empt Khasra No, 110 on the ground of contiguity. In other words, the question now raised on behalf of the appellant does not really arise on a correct appreciation of the right of the plaintiff, which extends to both the Khasra numbers in dispute."
Similarly in a case reported as Muhammad Hussian v. Hassan Muhammad and another [PLD 1984 SC (AJ&K) 122], it was observed as under:-- "The argument advanced by the learned counsel is devoid of any force because a transfer by a co-sharer to any other person of the joint property would make the vendee a co-sharer irrespective of the fact whether the land transferred is specific plot or not. In such cases the vendee steps into the shoes of the vendor and as such he is co-sharer for all practical purposes, like the vendor."
10.After examining the record and the judgments referred to by the learned counsel, we have formed the view that appellants are the `shareek Khewat' in the land which is contiguous and same has not been partitioned. Therefore, they are deemed to be co-sharers and it is celebrated principle of law that a person who is `shareek Khewat' has the right of pre-emption.
11. After going through the judgments of the Courts below we have come to the conclusion that all the three Courts have not even touched this crucial point and recorded the finding that as the appellants are not co-sharers in %lea' No, 63 in which the land in dispute falls, therefore, they failed to establish the right of prior purchase which is not correct.
In view of the above discussion, we are inclined to accept this appeal, set aside judgments and decrees recorded by the Courts below and hold that the appellants have successfully established their right of prior purchase, therefore the suit filed by the appellants is decreed subject to payment Rs, 30,000/- plus registration charges. The trial Court shall issue notice to the plaintiffs and if the plaintiffs deposit the decretal amount within a period of 30 days from the receipt of notice, the decree shall become final failing which the suit shall be deemed to be dismissed.