1. SHAH NAWAZ KHAN, J.-Land measuring 26 kanals and 8 marlas bearing Khasra Nos. 427. 428, 430, 431 and 432 situated in the limits of Shah Dand, District Peshawar was sold by Haji Ghulam Rabbani and Mst. Khadeja present respondents Nos. 4 and 5 to Aurangzeb etc. Res--pondents Nos. I to 3 vide mutation No. 2021 attested on. 7th December 1966 for an ostensible price of Rs. 32,969. Haji Abdur Rashid, plaintiff, predecessor-in-interest of the present appellants instituted a suit for pre- emption on the ground of co-sharership to the suit Khata and of his owning contiguous land and also because he is a participator in the amenities and appendages, and that he has a right of way, right of Pulla and Lakhti and also of his having the rights of easement. He also disputed the payment of sale price as shown in the mutation, and stated that the actual amount fixed and paid for the suit land was Rs 19,850.
2. The trial Court decreed the plaintiff's suit on the ground that he has a superior right of pre-emption as compared to the vendees, and the only ground considered in his favour was that his lands are irrigated from the same water course, which. Irrigates the suit land and also that he has right of way. The plaintiff was, however, directed to pay the pre-emption money in full (1. e. Rs. 32,298.50 paisas). The vendees, however, challenged the decision of the trial Court before the District Judge, Peshawar, who by his order dated the 5th September, 1970, dismissed the appeal with costs.
3. Aggrieved by this order of the learned District and Sessions Judge, the vendees then went through a revision petition, before the High Court, and a learned Single Judge of that Court after hearing the arguments of the learned counsel for the parties expressed his dis--agreement with the findings of the Courts below, and held that the plaintiff had no superior right of pre-emption to enforce. In the opinion of the learned Single Judge the land in dispute and the land of the plaintiff were irrigated from two different sources and these channels stand separated from one another at a distance from the disputed land and the land of the plaintiff. The learned Single Judge further observed that one channel goes to the right, which irrigates the disputed land and the lands of many others while the other channel goes to the left, which irrigates the disputed land and the lands of several other persons. In his opinion the question of participation in amenities and appendages, therefore, did not arise. The learned Single Judge of the High Court further observed that the learned counsel for the respondents also did not dispute that position. Therefore, the fact that the land of the plaintiff and the disputed land are irrigated through two different sources is not only proved on the record, but also finds support from the statements of P. W. Syed Saadullah Shah, Patwari, Halqa Shah Dhand and Zor. Talab, Canal Patwari, Halqa Hazar Kaani, who was examined as D. W.
1. The learned Single Judge while accepting the revision petition, set aside the judgments and decrees of the lower Courts and dismissed the plaintiff's' suit with costs throughout.
4. The legal representatives of the plaintiff submitted petition for leave !k) appeal before this Court, which was granted on the 7th January, 1974. The sole question, which was required to be gone into was the scope and meaning of second clause of section 12 of, the N,-W. F. P. Pre-emption Act, 1950.
5. We have heard the arguments of the learned counsel for the appel--lants and also the learned counsel for the contesting respondents. Syed Saadullah Shah, Patwari, who had been examined as P. W. 1 has stated that Khast: N. 409 is a Sbar-e-Aam, and Khasra No. 408 is dhair Mumkin Lakhti, and that there is an outlet in the bed of the main annel wherefrom two Lakhtis bifurcate. The one situate towards the West of Khasra No, 409, goes along Wfh the fields of the plaintiff and the other Lakhti, which is the other outlet and bears Khasra No. 435 goes towards the fields of the defendants and other adjoining owners. Zor Talab, Canal Patwari, D. W. 1, has also confirmed this fact. More-- over about this fact, the learned counsel for the parties, as indicated above, had agreed and they did not dispute this position.
6. As there did not appear to be any pronouncement by this Court and as the petition raised a substantial question of law of public importance, leave to appeal was granted by this Court to examine as to what was the scope and meaning of the second clause of section 12. The right of pre-emption has been extended to a person, who is a 'participator in amenities and appendages', which term has been further explained to show that there should be a right of way and discharge of water. The learned counsel for the appellants submitted that it was not exhaustive and that the right of irrigation was also included and the plaintiff would be entitled to get his relief if he proves that he is a participator in the right of irrigation.
7. Undoubtedly, according to P. W. 1, Syed Saadullah Shah, the suit land and the land of the plaintiff are irrigated from the main source, i.e. Rajbah Hazar Khani, but both these lands are irrigated through two different Lakhtis, which are separate from each other and they bifurcate from the main canal at a distance from the land in suit and the land of the plaintiff. After the leave granting order a case of the same nature, however, came before the Supreme Court of Pakistan, namely, Pir Ghulam v. Noor Zaman 1979SCMR36Q, wherein it was held that as the suit land was receiving water from the same channel, which irrigated the other land of the plaintiff, this fact would not give the plaintiff a preferential sight of pre-emption. It was observed that, "According to clause "secondly" of section 12 of the N.-W. F. P. Pre-emption Act (Act X IV c-f 1950), the preference is given to landowners who have a "right to discharge" their water over the suit land. Right to discharge water of one land over another land is quite distinct from receiving water from a common water channel.
8. Actually it means a right of flow of water in the suit land in the same sense as for example right of way". It was further observed that, "It is well settled that in such cases where the owners of lands have the right to draw water from a watercourse, they cannot claim the right of pre-emption as Shafi-i-Khalit because this does not make them co. Sharers in appendages and give them easement rights over the neighbour's land. As reported in Mughal Baz Khan v. Slier Afaal Khan 198QSGMR69Z a similar question came before another Bench of this Court, wherein it was held that a co-owner in village Shamilat can not be considered as owner o1 contiguous property for the purpose of pre-emption. The question, which arose in that case was somewhat different and the plaintiff was claiming that he was a co-sharer in village Shamilat which was contiguous to the suit property. That right was not conceded to ibe plaintiff and it was observed that, "Such a man can have no more right in the village thorough--fare than any other person, even if that other person be not an owner in the Shamilat of the village or the thoroughfare. It was further observing that such a person has, therefore, no disposing power over the thorough--fare either individually or collectively with the other co-sharers. Further more such a man cannot even sue for partition of the thoroughfare for separating his share c." the thoroughfare. The ownership of such a man there means nothing and such an ownership is, therefore, evidently not contemplated by section 12.
9. In both these cases the scope and meaning of the second clause of section 12 of the N.-W. F. P. Pre- emption Act were considered and it was held that in such a case the plaintiff could not assert his claim of superiority for the purpose of pre-emption law.
10. In Civil Revision No. 257 of 1957 (a case from Peshawar Bench of the High Court of West Pakistan) a question was considered as to whether a plaintiff can put claim for superior right of pre-emption on the ground that his land was irrigated from the same channel, which irrigated the land in suit and it was held that such right did not give the plaintiff a superior right of pre-emption. The judgment in that case was delivered on 1st March, 1962. In that judgment the Division Bench had followed the proposition expounded in Syed Haji Imambakhsh and others v. Mir Muhammad Ali Khan Haji All Murad Khan 223 1 C (Sind) 634 and K. S. Muhammad Akbar Khan v. Zaidullah Khan and another PLD 1954 Penh.
99. In the first case it had been held that where a person has a right of way or flow of water over the property sold, he must be regarded as a partner in the appendages of the said property and to have the right of pre-emption in regard to it, but that it can in no way be said that the plaintiffs, because they own land which draws water from a Government watercourse, the bed of the watercourse being the property of Government can in any way claim the right to pre- emption as sharers in an appendage with the land (sold) of the defendants and their neighbours who draw water from the same Government watercourse. In the second case, which was from Peshawar, it was held that the mere fact that a certain water-channel, which might run miles and miles, irrigates the two lands, the one belonging to the plaintiff and the other land sold, cannot possibly give the plaintiff a superior right of pie-emption.
11. In the instant case, as may be seen from Exh. P. W. 1/3, ate a place, some distance away from the land of the plaintiff, the main water channel is bifurcated into two separate Lakhtis (water channels), the one bearing Khasra No. 408 passes by the side of Khasra No. 406 etc. Which belong to the plaintiff, while the other bearing Khasra No. 435 passes by the side of the land in suit. The land in suit is irrigated by that Lakhti while the land of the plaintiff is irrigated by the Lakhti bearing Khasra No. 408. In between the Lakhti (water channel) bearing Khasra No. 408 and the land in suit there is a main thoroughfare bearing Khasra No. 409. Thisthoroughfare separates the Lakhti bearing Khasra No. 408 and the Iand of the plaintiff from the land sold. To be more clear the Lakhti (water channel) which irrigates the land of the plaintiff does not irrigate the suit land and instead a separate Lakhti irrigates that land. It was about this fact that the learned counsel for both the parties had agreed before the High Court, as indicated above.
12. In that view of the matter, we are of the view that the scope of clause second of section 12 of the N.- W. F. P. Pre-emption Act, 1950, cannot be extended to cover the claim of any one who might be having the right of irrigation in the same channel at a distant place from his land, which also supplies water to a Lakhti (water channel), which irrigates the suit land. At the place of bifurcation, the two Lakhtis attain independent status and each one of them irrigates different field or fields which come under it and on that score there is nothing in common between the lands of the plaintiff and the lands in question.
13. At the last leg of his arguments, the learned counsel for the appel--lants submitted that the trial Court as well as the first appellate Court have come to a concurrent finding on a question of fact, and, therefore, it was not open to a Single Judge of the High Court to disturb that finding. But here the case is, the other way round. So far as the facts are concerned there is no dispute between the parties and admittedly the land in suit and the land of the plaintiff are irrigated from the main Rajbah Hazar Khani. The trial Court and the first appellate Court gave their finding that on that score the plaintiff had the superior right of pre--emption, but the High Court has reversed the findings recorded by the Courts below, and has held that on this ground, the plaintiff could not claim any superiority, because the real source of irrigation for the purpose of pre-emption laws started from the place where the two Lakhtis were bifurcated as otherwise the plaintiff could claim that his land is irrigated from the main Kabul River Canal as so is the suit land. But that could not be so, particularly when the vendees had not been able to prove, whether under the Kabul River Canal they also have any land for irriga--tion. It would, therefore, be preposterous to conceive of such a situa--tion because then the main source of Kabul River Canal is the Kabul River itself which flows many miles away from the lands of the plaintiff (appellants) and the suit land. The petitioners would have no stance on the path bearing Khasra Number 409 which is a main thoroughfare open to public and is cut off from the land of the plaintiff by an intervening Lakhti which bears Khasra Number 408. It is a common path and it goes for a long distance passing by so many fields. It would not thus .Entitle the plaintiffs (appellants) to claim a superior right of pre-emption.
14. We are, therefore, of the view that the learned Single Judge of the High Court has arrived at a correct conclusion, namely, that if such person is allowed to pre-empt, then it will be against the spirit of law of pre-emption and lead to absurd consequences.
15. This appeal, therefore, fails and is consequently dismissed with costs.