' YAHYA AFRIDI, J.---This revision petition is directed against the judgment and decree dated 22-5- 2010 passed by the Additional District Judge-I, Abbottabad, whereby, appeal filed by the present respondent against the judgment and decree dated 20-7-2009 of Civil Judge-VII, Abbottabad was accepted.
2. The brief and essential facts leading to the present petition are that the present respondent instituted a suit on 17-12-2005 for possession exercising his right of pre-emption in respect of suit property comprised in 'Khata' No, 72/95, 'Khasra' No,126 measuring 1 'Kanal' 4 'Marlas', situated in 'Mauza Mandroach Kalan, Tehsil and District Abbottabad ("disputed property"), which had been transferred in favour of the petitioner vide Mutation No,1101 attested on 7-10-2005.
' It was averred in the plaint that disputed property was the ownership of Abdul Qayyum son of Zaina, who had sold the same without any notice to the respondent for sale consideration of Rs,50,000, however, in order to defeat the right of pre-emption of the respondent, an imaginary amount of Rs,250,000 was shown to be the sale consideration in the impugned mutation; that the respondent came to know about the sale of the disputed property on Monday 14-11-2005 at 6.00 p.m. In the 'baithak' of his house through his son Imran, when he was sitting with Arshad son of Ghazi Khan and he had immediately performed `Talb-i-Muwathibar in their presence; that he had sent notice of `Talb-i-Ishhad' to the petitioner on 23-11-2005 through registered-AD; that the respondent claimed superior right of pre-emption on the basis of 'co-sharership' in 'Khata', 'contiguity' and participation in 'amenities' and 'appendages'.
3. The suit of the respondent was contested by the petitioner by filing written statement. Based on the contesting pleadings of the parties, the trial Court framed the following ten issues:--
(1) Whether the plaintiff has got any cause of action? OPP
(2) Whether the plaintiff is estopped to sue by his own conduct? OPD
(3) Whether the suit of the plaintiff is bad in its present form? OPD.
(4) Whether the suit of the plaintiff is within time? OPP.
(5) Whether the plaintiff has fulfilled the requirements of Talbs under section 13 of Pre-emption Act? OPP.
(6) Whether the plaintiff has superior right of pre-emption? OPP.
(7) Whether defendant has paid Rs,250,000 in goodfaith? OPD.
(8) What is the market value of the suit property?
(9) Whether plaintiff is entitled for the decree as prayed for?
(10) Relief.
4. The parties produced their evidence and after hearing learned counsel for the parties, the learned trial Court held that the present respondent had proved the mandatory 'Talb' as required under section 13 of the N.-W.F.P. Pre-emption Act, 1987 ("Act"). However, it was held that both parties were 'Khata Shariks' and thus passed decree in favour of the respondent to the extent of 12 'Marlas' subject to deposit the remaining balance amount by him in Court, while the claim of the respondent regarding the remaining half property was dismissed.
' Aggrieved thereof, the present respondent impugned the said judgment and decree in Appeal No,30/13 of 2009, and the present petitioner also filed cross Appeal No,23/11 of 2009, which came up for hearing before Additional District Judge-I, Abbottabad. The appeal of the present respondent was accepted and decree for remaining half property was also passed in his favour by the learned appellate Court, while the appeal of the present petitioner was dismissed. Hence, this revision.
5. The learned counsel for the petitioner vehemently argued that the Courts below have not considered the evidence of the respondent 'qua' performance of `Talb-i-Muwathibar and `Talb-i- Ishhad' , in its correct legal perspective in accordance with the settled principles; that the statements of the 'witnesses produced by the respondent to prove performance of said 'Talbs' were contradictory and inconsistent but the said infirmities in the statements were altogether ignored by the Courts below; that the learned Appellate Court has drawn wrong inferences from the evidence produced by the respondent; and that the appellate Court by wrongly and illegally interpreting section 6 of the Act has non-suited the petitioner; and that the appellate Court has also wrongly and illegally considered the petitioner's right of pre-emption ' qua' the disputed property.
' In rebuttal, learned counsel for the respondent vigorously, argued that the respondent has proved 'Talb-i-Muwathibat' and 'Talb-iIshhad' in accordance with law, regarding which both the Courts below have rendered concurrent findings; and that the finding recorded by the Appellate Court was based on correct appreciation of evidence and the law applicable thereto.
6. Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
7. As far as the issue relating to performance of 'Talb Muwathibat' and 'Talb-i-Ishhad' by the respondent, there are concurre findings of the two Courts below, thus, this Court considers that both the Courts below have correctly and legally appreciated the evidence 'qua' performance of 'Talb-i-Muwathibat' and 'Talb-i-Ishhad' . Hence, the respondent had fulfilled the requirements of section 13 of N.-W.F.P. Pre-emption Act, 1987 in proving the essential demands to exercise his right of pre-emption over the disputed property. Thus, this Court in exercise of its revisional jurisdiction does not find any legal justification to interfere in the concurrent findings 'qua performance of 'Talbs'.
8. The issue relating to the right of pre-emption of the parties over the disputed property regarding which both the Courts below were at variance requires determination by this Court. Thus, in the present case, the trial Court after considering the evidence adduced, finally determined the rights of the parties regarding the disputed property and concluded that both the parties being 'Khata sharik owners' have equal right of preemption with regard to the sale transaction. However, this determination of the right in favour of parties over the disputed property by the trial Court was not confirmed by the appellate Court in its judgment and decree dated 22-5-2010. The appellate Court came to the conclusion that both the parties have no right of 'Shafi Sharik' over the disputed property due to bifurcation of different 'Khasra' numbers of 'Khata' No,72 by path bearing 'Khasra'
No,214, owned by District Council, however, respondent was held to be contiguous owner to th2 disputed property and, he had also right of passage therein hence, he was entitled to the remaining half of the property.
9. Admittedly, both the parties are co-owners in ' Khata' No,72, consisting of nine 'Khasra' Nos.244, 241, 243, 242, 190, 176, 189, 126 and 298. The present petitioner is owner in sKhasra' Nos.241 and 242, whereas, the respondent is owner in ' Khasra' No,176, which is situated towards- north and adjacent to the disputed property.
' Section 6. Of the N.-W.F.P. Pre-emption Act, 1987, envisages the persons in whom the right of pre- emption vests, which reads that:-- "6. Persons in whome the right of pre-emption vests.---(1) The right of pre-emption shall vest-
(a) firstly, in Shafi Sharik;
(b) secondly, in Shafi Khalit; and
(c) thirdly, in Shafi Jar.
' Explanation. (I) "Shafi Shade means a person who is a co-owner in the corpus of the undivided immovable property sold with other person or persons.
(II) "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.
(III) "Shafi-Jar" means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold."
' Perusal of revenue record would reveal that ' Khata' No,72 is undivided property. It consists of nine 'Khasra' numbers owned by different persons including the present parties. It is settled that all the persons in an undivided 'Khata' shall remain co-owners till such time as an actual 'partition by metes and bounds takes place between the co-sharers. This has been reaffirmed by the apex Court in Muhammad Muzaffar Khan's case (PLD 1959 SC 9) held that:- "A plain consideration of the nature of the transaction in the circumstances of this case could, in our opinion, lead to but one conclusion. 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. It may be pointed out that the mutations in favour of the appellant, which are on record, describe the sale transactions in his favour as hissadari sales of the joint Khata in suit."
In the present case, the petitioner and the respondent are 'Khata Shank owners' . Thus, the learned appellate Court has wrongly held that the respondent pre-emptor and the petitioner have not right of 'Shaft Sharik' over the disputed property due to bifurcation of different Whasra' numbers by intervening thoroughfare bearing ' Khasra No,214, owned by the District Council. Thus, the findings of the learned appellate Court in this regard were not based on correct appreciation of revenue record and evidence produced by the parties and the law applicable thereto. In the circumstances, it is clear that the decision of the appellate Court warrants interference by this Court in its revisional jurisdiction to the said extent.
9. Accordingly, for the reasons stated hereinabove, this Court partially allows the instant appeal and set aside the decision of the appellate Court and restores that of the trial Court.
' No order as to costs.