1. The only point which needs consideration in this appeal is whether a "Shafee-i jar" (a person claiming right of pre-emption on the basis of vicinity) is entitled to claim pre-emption in respect of a piece of land larger in are a than that of adjacent land owned by him.
2. I have heard Mr. Mushtaq Memon Advocate for the appellant and Mr. Maroof Ali Khan, Advocate for the respondent.
3. The appellant had filed a suit claiming right of pre-emption in respect of a piece of land bearing Survey No. 102 situated in Deh Bakabad, Taluka Pano Aqil sold by respondent No. 2 to respondent alongwith several other survey numbers. It is the case of appellants that they are in cultivating possession of Survey No. 102 for the last about 30/35 years. It is also claimed that this land was originally under their allotment from 1949 to 1961, but was later cancelled and was allotted to one Anwar Beg who used to manage the same through respondent 2. Respondent 2 ultimately sold away this land to respondent 1 and as such as the appellants came to know of the sale in favour of respondent 1 they asserted their right of pre-emption over the land in the manner required by law and upon failure of respondents to convey the land, instituted the suit for pre-emption before the Civil Judge, Ghotki. The suit was resisted on various grounds by the respondents and on the pleadings of the parties several issues of law and fact were framed. The trial Court found on all the issues in favour of the appellant and decreed the suit. On appeal the Ist appellate Court concurred with the findings of the trial Court on all the issues except Issue No. 3. The first appellate Court on Issue No. 3 found that the appellants being ` Shafee-i-jar" were not entitled to lay claim on the basis of pre-emption for a larger holdings of land which was far in excess in area than the lands owned by the appellants in the vicinity. In arriving at the conclusion that a "Shafee-I-jar" is not entitled to lay claim in respect of large holdings the first appellate Court relied upon the case of Imam Bukhsha v. Muhammad Ali Khan(AIR 1946 Sind 55). Before considering the case referred to in the judgment of the First Appellate Court I would first examine the legal position of a "Shafee-I- jar" in the light of the provisions of Muhammadan Law. The right of a "Shafee" under the Muhammadan Law is based upon a precept of the Holy Prophet (Peace be upon him) reported in Hedaya by Hamilton (I1 Edn.) at page 548 as follows :- "The right of "Shaffa" holds in a partner who has not divided of and taken separately his share."
4. The establishment of the right of "Shaffa" in a neighbour is also founded on the saying of the Holy Prophet (peace be upon him) reproduced at the same page of 'Hedaya' as follows:- "The neighbour of a house has a superior right to that house, and the neighbour of lands has superior right to these lands, and if he be absent; the seller must wait his return, provided however, that they both participate in the same road. A neighbour has a right ; superior to that of a stranger, in the lands adjacent to his own."
5. Similarly in `Hedaya it is also stated that the order in which we have classed the persons entitled to the privilege of "Shaffa" is also founded on a precept of the Holy Prophet (peace be upon him) who has said :- "A partner in the thing itself has a superior right to one who is only a partner in its appendages and a partner in the appendages of the property precedes a neighbour."
6. Therefore in the light of the rule of Muhammadan Law which is based upon the precepts of the Holy Prophet (Peace be upon him) the Muslim Jurists have classified in order of priorities the various categories of "Shafee" (Pre-emptors) as follows :-
(1) Shafee-e-Sbareek (Partner in the property).
(2) Shafee-e-Khalit (Partner in the appendages and amenities).
(3) Shafee-a jar (Person residing in neighbourhood), The first category of "Shafee" excludes the 2nd and 3rd categories. Similarly the "Shafee" of 2nd category will exclude the "Shafee" of the 3rd category. A "Shafee" belonging to the 3rd category can only claim the right of pre--emption if there be no "Shafees" belonging to 1st and the 3rd category, There appears to be no limitation, however, under the rule of Muhammadan Law curtailing the rights of the "Shafee" of the 3rd category to any particular size of the property. Nevertheless the Courts in India have consistently ruled that a "Shafee-i-jar" cannot exercise the right of pre- emption in respect of large holdings and this right is limited to only small pieces of land. . But what should be the criterion for holding a piece of land as a large holding or otherwise in a particular case, will have to be decided with reference to the facts in each case. It is not necessary in this case to examine the correctness of the view of Indian High Court that a "Shafee-i-jar" cannot exercise the right of pre-emption in respect of large holdings, in the light of the rule of Muhammadan Law, as the plot of land involved in this case measures only about 6 acres of land which cannot be termed as a "large holding". Mr. Maroof Ali Khan the learned counsel for the respondent urged that the land owned by the appellant on the basis of which the appellants claimed right of pre-emption was itself about 4 acres in area whereas the pre-empted land measured about 6 acres and accordingly it is contended by the learned counsel that it should be held that as compared to the lands owned by the appellants, the pre-empted land was a large holding. I am unable to accept the contention of the learned counsel. Even in the cases referred by the counsel, in which Courts in India expressed the view that a "Shafee-i-jar" cannot exercise right of pre-emption in respect of large holdings of land the Courts never held that the land pre-- empted should not be greater in area than the land owned by the pre-emptor in the vicinity. I have seen the sketch map of the disputed survey number and the survey number owned by the appellants which is at page 14 (Exh. 45/B) of the Paper Book and after looking to the sketch it is abundant clear that the boundaries of only Survey No. 102 out of the several serve numbers of land sold to respondent 1 touches the boundaries of Survey Nos. 382 and 383 owned by the appellants at different points. The mere fact that the area of Survey Nos. 382 and 383 owned by the appellants is on 4 acres while the area of Survey No. 102 claimed by them on the basis of pre-emption is 6 acres would not necessarily make Survey No. 102 a large holding. The learned counsel for the appellants referred to the case of Mahmood Hassan Khan v. Bhikari Lal and others (A 1 R1953 All 705) where the Court repelled a similar contention in that case that a plot of land measuring 4 bighas and 5 biswa s should be considered a large holding and right of pre-emption based on the ground of vicinage be rejected. I am therefore of the view that the land in respect of which the appellants asserted their right of pre-emption, was not a large holding, I will now consider the case referred by the First Appellate Court in its judgment and also relied upon by the learned counsel for the respondents. In that case the land in respect of which right of pre-emption was exercised by the appellants comprised of 14 pieces of land measuring 85 acres. These lands were in 3 separate parcels, one consisting of 5 survey numbers, another of 2 and third consisted of ? Survey numbers.
7. The plaintiff in that case asserted the right of pre-emption on the ground of vicinage because at one place or the other, the lands of each of these parcels touched the land of pre emptor. The Court in these circumstances held as follows :- - - "I do not think that it was ever intended that pre-emption on the ground of vicinage should be vested in neighbouring zamindars, large holders of agricultural lands, merely because at one place or another one survey number of agricultural land should adjoin another survey number of agricultural land belonging to a neighbouring Zamindar." -These facts are quite distinguishable and do not apply to the facts of the case before me.
8. The learned counsel for the appellant referred to paragraphs 295 and 300 of the book entitled "Kitab-ush-Shifa" written by Moulvi Sayed Muhammad Abdullah Tamapuri (1952 Edn.) in support of his contention that a shafee-i---jar has right of pre-emption on the ground of vicinage. He also referred to another book on "Muslim Law of Pre-emption" written by AI-Haj Muhammad Ullah ibn S. Jung and relied on the following passage at page 139 of the book:- "64. When a person purchases from another person, by a single bargain. Five houses in a street in which there is no thoroughfare, and the pre-emptor desires to take one of them, then according to our jurists if his right of pre-emption is based on partnership in the way he cannot pre-empt one of them for this would amount to the division of the bargain without any necessity for it, but if his right is based on neighbourhood, that is he happens to be the neighbour only to the house which he wishes to pre-empt, then he would be lawfully entitled to pre-empt it alone. This is according to the Fatawa-i-Qazi Khan."
9. On a careful consideration of the case-law and the commentaries on the Law of Pre-emption cited at bar I am of the view that the First Appellate Court reversed the decree of the trial Court for insufficient reasons and on a misconceived notice with regard to the size of a large holding of land referred in the decided cases from Indian jurisdiction.
10. I therefore, allow the appeal, set aside the judgment of First Appellate Court and restore the judgment and decree of the trial Court. The appellants will be entitled to the costs of this appeal.