' SARMAD JALAL OSMANY, J.---Leave was granted in this matter for the purpose of adjudicating the appellant's rights as Shafi Khaleet in terms of Explanation (ii) to Section 6 of the Punjab Preemption Act, 1991 (hereinafter referred to as the "Act, 1991") in as much as he was a participator in the common passage (Rasta) adjacent to the pre-empted land and also whether he is a Shafi-i-jar as well in terms of Explanation (iii) as he owned a part of such passage.
2. Briefly stated the facts of the matter are that the appellant Mushtaq Hussain had filed a suit for possession of land measuring 93 Kanals and 17 Marlas bearing Khasra No,1238 in village Sadiqabad Tehsil Talagang through pre-emption on the basis of contiguity i,e, that he owns a part of the common passage lying adjacent to the suit land. One Karim Dad had also filed a suit as a rival pre-emptor and both the suits were consolidated and after recording evidence of the parties they were dismissed by the learned Civil Court on the point of Talb-i-Ishhad and the superior right of pre-emption. On Appeal the learned Appellate Court reversed the finding on the question of Talb- i-Ishhad but upheld the finding that no superior right of pre-emption had accrued to the appellant and consequently the same was dismissed. The Civil Revision filed by the appellant against the Judgment of the learned Appellate Court was also dismissed.
3. Sh. Zamir Hussain, Learned Advocate Supreme Court appearing for the appellant has submitted that all the Learned forums below have not appreciated the fact that ownership of a passage adjacent to the preempted land creates a superior right of pre-emption in favor of the appellant.
Consequently he is both Shafi Khaleet and Shafi-i-Jar in terms of the explanation to these two terms per Section 6 of the Act, 1991. In support of this submission he has relied upon Muhammad Khan v. Muhammad Yousaf (PLD 2003 Lah. 413), Ahmad Khan v. Sattar Din (PLD 1981 SC 148), Aurangzeb Khan v. Abdur Rehman (1984 SCMR 1294), Syed Alam v. Rabia Gul (1981 SCMR 59), Zia Farhat Awan etc. v. Aurangzeb etc. (1981 SCMR 824), Muhammad Ramzan v. Muhammad Rafiq and others (1983 CLC 2837). However Learned Advocate Supreme Court has submitted very fairly that Mughal Baz Khan v. Sher Afzal Khan (1980 SCMR 692) is against the proposition as therein it has been held that an owner of an adjacent passage does not have any right of pre-emption.
4. Dr. Babar Awan, learned Senior Advocate Supreme Court appearing for the respondents/purchasers has submitted firstly that the evidence of PW-1 Mushtaq Hussain appellant, does not mention any Khasra number of land owned by him or the other respondents but on the other hand he has admitted under cross-examination that he has not filed any document of title and nor does he know where his land is located or its Khasra number etc.. So also per the deposition of P.W.2 Charagh Din, who is the informant, he has not said anything about the pre-empted land but on the other hand admits that the appellant is the tenant of such land and also that Karim Dad, the other pre-emptor, has exclusive right of pre-emption. Learned Senior Advocate Supreme Court has further submitted that in the plaint no details of land has been given whereas in the written statement the Respondent only admits that the appellant owns one Marla in the common passage i,e, Rasta-e-Aam lying adjacent to the pre-empted land. He has further submitted that in the Talb-i-Ishhad the appellant says that he has, to go through Khasra No, 1238 (pre-empted land) in order to reach his own land but per the site plan (Aks Shajra) he does not own any land beyond Khasra No,1238. Learned Senior Advocate Supreme Court's next submission is that the cases relied up by Sh. Zamir Hussain, learned Advocate Supreme Court are distinguishable, inasmuch as in Muhammad Khan v. Muhammad Yousaf (PLD 2003 Lah. 413) it had tome on the record that the pre-emptor's lands were two acres away from the suit land but passage was common and he had to go through the common passage way in order to reach the same. His next submission is that per Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) right of pre-emption only lies with a person who owns the land exclusively either adjacent to the pre-empted land i,e, he is a Shafi-i-jar or he is a participator in the special rights attached to the immovable property sold such as a right of passage or right of irrigation i,e, he is a Shafi Khaleet. In the present case where admittedly other persons also have interest in the common passage lying adjacent to the pre-empted land therefore the appellant cannot be termed as a Shafi-i-jar at all. Similarly per learned Senior Advocate Supreme Court he could not be termed as Shafi Khaleet also as no special rights are attached to the immovable property sold because the passage adjacent to such property is a public path and evidently open to everybody. Learned Senior Advocate Supreme Court has further submitted that per Said Kamal Shah's case (Supra) the right of pre-emption is to be exercised not for the purpose of increasing wealth but to make the pre-emptor's land more approachable etc. Which is not the case in the present matter. Finally learned Senior Advocate Supreme Court has submitted that Aks Shajra (site plan) abundantly establishes that the common passage abuts a number of Khasras and hence is to be used by all the owners of said Khasras, in fact by any one at all. Consequently there is no question of any right of pre-emption having accrued to the appellant who only owns one Marla in this common passage.
5. In rebuttal Mr. Sh. Zamir Hussain, learned Advocate Supreme Court has submitted that per Order VII, Rule 1, C.P.C. Only facts are to be pleaded which are a part of the cause of action and hence in a preemption suit it has to be pleaded that the suit property has been sold and that the pre-emptors property lies adjacent to it and hence there is no need of giving any details etc. Nevertheless the respondent in his written statement has admitted that the appellant owns one Marla in the common passage. His next submission is that per Haji Rana Muhammad Shabbir Ahmad Khan v.
Government of Punjab Province, Lahore (PLD 1994 SC 1) Section 6(2) of the Act, 1991 has been declared repugnant to the injunctions of Islam i,e, a pre-emptor need not prove Zarurat i,e, necessity for the pre-empted land and nor that he is exercising such right in order to avoid loss (Zarar) as these are inherent in the law of preemption. He has also relied upon Muhammad Khan (Supra) for the proposition that a Shafi Khaleet means a person who owns lands adjacent to the pre-empted property. As admittedly the appellant owns one marla of the common passage adjacent to the suit property, hence he is a Shafi Khaleet.
6. We have heard both the learned Advocate Supreme Courts and also perused the record as well as the connected law very carefully.
7. It would be seen that the right of pre-emption per section 6(1) of the Act 1991 vests firstly with a Shafi Sharik, a person who is a co-owner in the corpus of the undivided immovable property sold; secondly with a Shafi Khaleet, a person who is 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 and finally a Shafi Jar who is a person having right of pre-emption because of owning an immovable property adjacent to the immovable property sold. These three categories of persons in whom the right of pre-emption is vested has been recognized by the law. In the case of Haji Rana Muhammad Shabbir Ahmad Khan (supra) the learned Shariat Appellate Bench of this Court opined that Section 6 (1) of the Act 1991 was not repugnant to the injunctions of Islam. However subsection (II) thereof whereby the right of pre-emption was limited only in case of Zaroorat or to avoid Zarar was struck down on the reasoning that Zarar (loss) was the basic philosophy underlying the law of pre-emption whereas there is no concept of Zaroorat (necessity) under Islamic law of pre-emption. It was also held that a basic philosophy underlying the law of pre- emption cannot be termed as a pre-condition to such right and hence it was not necessary by a pre-emptor to prove the same as it is very much taken to be incorporated in his right as such. Seen in this context in the present case we are of the opinion that nowhere has the appellant asserted or for that matter established that unless the pre-empted land is sold to him he would suffer some loss. This being the case and having observed above that the avoidance of loss is the underlying philosophy of the law of pre-emption we are afraid that appellant has not at all been able to make out any case as to whether he would suffer any loss etc. Unless the preempted property was sold to him. Another striking feature of the matter is that the appellant only owns one marla of the passage which lies adjacent to the suit property and it is nobody's case that such passage is in the exclusive use of the appellant as ft has come on the record that it is a public thoroughfare.
Consequently we are of the opinion that the ownership of this passage would not give the right of pre-emption to the B appellant on the ground that he is a Shafi Jar because he is not the exclusive owner of the passage. Similarly he could not also be termed as a Shafi Khaleet as there are no special rights attached to the suit property in the sense that the passage is a public thoroughfare and is used by the public at large. In fact as the appellant was not able to establish ownership of any property other than one marla in the common passage, no right of pre-emption could ever accrue to him as it is the underlying principle of the law of pre-emption that the pre-emptor has to own IC property before he can exercise such right.
8. The cases cited by Sh. Zamir Hussain, learned Advocate Supreme Court in support of the Appeal, in our humble opinion are distinguishable from the facts of the present case since in the case of Ahmad Khan (Supra) the facts were that the parties owned land which was irrigated from a common water course i,e, on both sides thereof in which event this Court came .To the conclusion that the respondent/preemptor could pre-empt the land purchased by the appellant which was adjacent to such water course. However in the case of Syed Alam (Supra) it was held that the Petitioner/pre-emptor could not claim a superior right of pre-emption on the ground that he was a co-sharer in the water channel. In fact the Judgment goes against the appellant because this Court came to the conclusion that a co-sharer of a water channel owns every inch of a water channel being un-partitioned. In the case of Aurangzeb Khan (Supra). In Zia Farhat Awan etc. (Supra) this Court came to the conclusion that different water channels (Lakhti) irrigated the plaintiff/pre-emptor's land and the suit land and hence the pre-emptor could not assert his claim of superiority for the purpose of pre-emption. Again in the case of Muhammad Ramzan (Supra) only a small area of Khasra numbers was shown as Ghair Mumkin Sarak and the appellant/pre- emptor's name figured against the entire Khasra number in the column of cultivating possession and hence the suit for pre-emption was decreed to that extent. Upon examination of afore-going cases the facts would reveal that pre-emption was allowed when the pre-emptor owned property either adjacent to the pre-empted one or the parties shared a water channel or common thoroughfare adjacent to their respective properties but not as in the present case when it has not been demonstrated at all by the appellant that he owned any property adjacent to the common passage i,e, he could be termed as Shahi Jar. Insofar as his right of pre-emption based upon being Shafi Khaleet is concerned again as observed above no special rights are attached to the pre- empted property as the passage is a common one of which appellant only owns one marla. The case of Mughal Baz Khan (Supra) is relevant as therein this Court came to the conclusion that a co-owner of a village shamilat cannot be termed an owner of a contiguous property for the purpose of pre-emption. A similar conclusion was reached by the Shariat Appellate Bench of this Court in the case of Said Kamal Shah (Supra) wherein it was held that it was not the usage but the ownership of a common passage abutting the parties' properties which equips the pre-emptor with a superior right.
9. For all the foregoing reasons we do not find any defect or other material irregularity in the impugned Judgment which would convince us to interfere in the same. This Appeal is therefore dismissed.