' Muhammad Azam Khan, C.J.--Abdul Rashid alienated the land measuring 2 kanal, 3 marla, comprising Survey Nos. 1793 and 1794, situate at village Bhaliala, against a price of Rs, 30,000/- through a sale-deed registered on 29th March, 2002, to Qurban Hussain, respondent No, 1, herein, along with the rights in Aar-Banner and trees. The plaintiff-appellant, herein, filed a suit for possession on the basis of right of prior purchase on 6th May, 2002 in the Court of Civil Judge, Mirpur. Qurban Hussain, Respondent No, 1, herein, in the written statement claimed that his father purchased the land in year 1981 and has constructed a house with huge expenditure. The suit is hit by the doctrine of partial pre-emption. Later on, the written statement was amended and in the amended written statement, he claimed the cost of improvement to the tune of Rs, 25,00,000/-, i.e,, the cost of the house. After necessary proceedings, the learned Civil Judge, Mirpur through judgment and decree dated 3rd February, 2007, dismissed the suit on the ground that the land has been sold along with the trees and rights in Aar-Banna. The plaintiff has not preempted the sale as a whole. He has filed the suit only in respect of the land and has not pre-empted the sale-deed in respect of the trees and rights in the Aar-Banna. Dissatisfied, the plaintiff, appellant herein, filed an appeal in the Court of District Judge Mirpur. The District Judge, Mirpur dismissed the appeal.
Second appeal filed in the High Court was also dismissed vide impugned judgment dated 6th February, 2014, hence this appeal by leave of the Court.
2. Sardar Muhammad Azam Khan, Advocate while arguing on behalf of the appellant submitted that the judgment and decree of the High Court is against law and the record. The suit is not hit by the doctrine of partial pre-emption. The land has been sold against a price of Rs, 30,000/- along with the rights of Aar-Banna and the trees. The Aar-Banna and trees are attached to the land. The trees and Aar-Banna are not sold separately, rather these are part of the land. He referred to the cases reported as Khawaja Umar Joo vs. Muhammad Hussain and others [PLD 1963 AJ&K 44], Malik Muhammad Saleem and another vs. Commissioner, Rawalpindi Division, Rawalpindi and 3 others [PLD 1976 Lahore 1233], Muhammad Bashir and another vs. Alma Bibi and 4 others [PLD 1993 AJ&K 168] and Mohammad Zaman vs. Nazir Ahmed [PLD 1982 SC (AJ&K) 53].
' In the case reported as Khawaja Umar Joo vs. Muhammad Hussain and others [PLD 1963 AJ&K 44], it was observed by the Azad Jammu & Kashmir High Court that a pre-emptor is not entitled for a decree of partial pre-emption even if he is ready to pay the whole price given in the sale-deed.
' In the case reported as Malik Muhammad Saleem and another vs. Commissioner, Rawalpindi Division, Rawalpindi and 3 others [PLD 1976 Lahore 1233], it was observed by the Lahore High Court that the 'land' would mean land together with any superstructure, fixtures, etc. Thereon and benefits arising therefrom.
' In the case reported as Muhammad Bashir and another. Vs. Alma Bibi and 4 others [PLD 1993 AJ&K 168], the Azad Jammu & Kashmir High Court observed that the land in question was sold with a mango tree for specific amount. No separate price of mango tree was stated in the sale-deed. The mango tree could not be deemed to have been separately sold. There was no partial pre-emption.
The High Court declared that the matter is not hit by partial pre-emption.
' In the case reported as Mohammad Zaman vs. Nazir Ahmed [PLD 1982 SC (AJ&K) 53], the land was sold along with the shares in Shamilat-deh land. The trial Court dismissed the suit on the ground that it is a case of partial pre-emption. The District Judge accepted the appeal. The High Court maintained the judgment of the District Judge. On appeal this Court while dismissing the appeal observed as under: ' "It may be noticed that the respondent had decided to claim the pre-emption of v ole of the property but his superior right was only established so far as the land falling under Khewat No, 55/54 is concerned. It is.Settled principle of law that a preemptor is not bound to seek pre-emption of the whole of the property sold if his right of pre-emption extends only to a portion of the property or if a portion of the property is capable of pre-emption and other is not. In a case of this nature (the present is one of the type) partial pre-emption on payment of proportionate price is permitted as of necessity and not because pre-emptor, wants it. It also admits of no exception that the partial pre-emption is allowed if it is as a necessity and not because a pre-emptor wants it. If a pre-emptor's right only extends, as the present case is, to a portion of the land; it cannot be said that such suit suffers from partial pre-emption. No deep and laboured argument is required to hold so, when such situation has not been created by the pre-emptor but is inherent in the transaction for no fault on his part.
11. In the instant case the pre-emptor-respondent sued to preempt the whole land but it was found that he was entitled to pre-empt a portion of it and as such decree to that extent, being permissible under the pre-emption laws, was rightly passed,"
3. While controverting the arguments, Ch. Muhammad Afzal, Advocate, counsel for the respondents, submitted that the three Courts below have held that the suit is hit by the doctrine of partial pre-emption. The land was sold along with trees and rights of Aar-Banna. The suit has been filed only to the extent of land and it has rightly been dismissed being hit by the doctrine of partial pre-emption. He further argued that the ,plaintiff-appellant has not prayed for possession, therefore, without prayer of possession, the suit is not maintainable. He relied upon the cases reported as Muhammad Latif Khan and others vs. Lal Khan and others [PLD 1979 SC (AJ&K) 123], Malik Iftikhar Ahmed vs. Ali Asghar and another [PLD 1981 SC (AJ&K) 47] and Abdul Aziz vs. Abdul Hameed and 10 others [PIA 2004 SC (AJ&K) 168].
' In the case reported as Muhammad Latif Khan and others vs. Lal Khan and others [PLD 1979 SC (AJ&K) 123], this Court observed that where a pre-emptor has a right of pre-emption against a portion of sale and he has pre-empted only a portion of property sold, he is not bound to file a suit against the whole bargain. The suit is not hit by partial pre-emption.
' The case reported as Malik Iftikhar Ahmed vs. Ali Asghar and another [PLD 1981 SC (AJ&K) 47], is a criminal case and is not relevant for the purpose of present case.
' In the case reported as Abdul Aziz vs. Abdul Hameed and 10 others [PLJ 2004 SC (AJ&K) 168], it was observed by this Court that declaration regarding ownership could not be passed where the plaintiff could have asked for relief of possession but failed to do so.
4. We have heard the learned counsel for the parties and perused the record.
5. The controversy involved in the case is in respect of the partial pre-emption. Abdul Rashid got registered a sale-deed on 29th March, 2002 in favour of Qurban Hussain in respect of the land measuring 3 kanal, 2 marla, along with the rights of Aar-Banna and the trees. The plaintiff- appellant, Muhammad Rafique pre-empted the sale. In Para 2 of the plaint, he alleged that he is sharer in Khewat, Khata, and Aar-Banna and prayed for a decree of possession in respect of the land measuring 2 kanal 3 marla, against a price of Rs, 30,000/-paid through sale-deed registered on 29th March, 2002.
6. Right of pre-emption is recognized by the Statute and it is a right of substitution. A pre-emptor must take over the whole bargain. It is not upon the choice of a pre-emptor that he shall take the best part of the pre-empted property he likes and leave the worst part. The proposition has been considered by the Superior Courts of Pakistan and Azad Jammu & Kashmir in a number of cases. In the case reported as Ghulam Muhammad and 3 others vs. Khushi Muhammad and another [PLD 1973 SC 444], it was observed as under: ' "From the above observation, it is clear that ordinarily the preemptor must take over the whole bargain and he must seek -pre-emption of the whole of the subject-matter of the gale and pay the entire price paid by the vendees as consideration. There are, howeyer, certain exceptions which according to the view taken in this decision do not include the vendor's defective or want of title and it is not open to the pre-emptor to give up the claim as he likes. In the light of the above observation it is clear that the respondents' case does not fall within the limitation specified in this decision. The partial preemption can only be permitted if it is as of necessity and not because the pre-emptor wants it.
' Judging the facts of the present case on the principle laid down in the above mentioned observation, it is quite clear that the respondents have given up the clam in order to avoid further litigation which cannot be considered as of necessity. The respondents should not have given up their right to Khasra No, 620 simply because somebody else was claiming right in it. They should have also claimed pre-emption of Khasra No, 620 in spite of the fact that the vendors's title was in their opinion defective."
In the case reported as Muhammad Latif Khan and others vs. Lal Khan and others [PLD 1979 SC (AJ&K) 123], the matter came under consideration of this Court in the circumstances that a sale- deed was pre-empted where a land was sold along with the share in shamilat deh land but the pre-emptor failed to pre-empt the share in shamilat deh land. The trial Court dismissed the suit being hit by partial preemption. The District Judge dismissed the appeal. A learned single Judge in the High Court accepted the appeal and decreed the suit but when the matter came up before this Court, the Court observed that the shamilat deh is a property for all practical purposes and intent.
The share or right in shamialt deh land has a separate entity and it is not a right attached with some land or with some individual. It was observed in Para 12 of the report as under.
' " The plain reading of this section which requires no deep .Thought and laboured argument shows that the word 'land' is comprehensive to include 'right' in 'property .As for instance right to receive rent, and any right to water enjoyed by the owner or occupier of the land as is mentioned under sub-clauses (d) and (e) of Section 3 of the Land Alienation Act, 1900. We are thus of the considered view that 'share' in Shamilat and 'rights' in Shamilat are synonymous and contain identical import and meaning. 'Share' in Shamilat means entitlement to property proportionate to one's entitlement or right whatever it is in `Shamilat' and 'right' in Shamilat means the 'share' which a person owns in `Shamilat'. If a person sells the right of ownership in Shamilat it definitely conveys his proprietary rights to the extent of his share in Shamilat.
12-A........................
' We are, therefore, of the view that "Shamilat Deh" is a property for all practical purposes and intent.
The 'share' or `right' in Shamilat Deh land as said earlier being synonymous has a separate entity and it is not a 'right' attached with some land or with some individual. Practically, all the villages have their own `Shamilat' but all the occupants of land cannot become owner and proprietor of Shamilat Deh'. To quote for instance, neither the tenants nor the 'adna maliks' are entitled to any share in the Shamilat Deh. Only 'A 'ala Malik' is entitled to the Shamialt Deh or land or both. He is entitled to sell land without the share in Shamilat proportionate to his land and can retain full share of his `Shamilat' and vice versa. It is to be noted that share of the Shamilat is always recorded in the record-of-rights in column of proprietors and is divided according to the holdings of the proprietors."
7. A right in shamilat deh land is a separate right while the trees and Aar-Banna are attached with the property. The plaintiff has pre-empted the sale as a whole. The proposition came under consideration of the Azad Jammu & Kashmir High Court in the case reported as Muhammad Bashir and another vs. Alma Bibi and 4 others [PLD 1993 AJ&K 168], wherein the land was sold along with mango trees. No separate price for the mango tree was assessed. It was observed by the Azad Jammu & Kashmir High Court that since no separate price for mango tree has been fixed, therefore, the suit is not hit by partial pre-emption. It was observed at Page 176 of the report as under: ' "That both the mango tree and land in dispute was sold for a consideration amount of Rs, 3,30,000 and the respondent has filed the suit for the land. Although he has not mentioned the word tree in the plaint, but when he is willing to pay Rs, 3,30,000, then it seems that he has also filed the suit for the mango tree. If his intention would have not been for the mango tree, then he would have not been willing to pay Rs, 3,30,000. It is pertinent to note that in the sale-deed, no separate price of mango tree was stated, so it cannot be said that the mango tree has been separately sold.
Although some evidence was led by the vendee-defendant that the price of the mango tree was separately assessed, but it was included in the price of the land. Now when the price of the mango tree. Has not been separately mentioned in the sale-deed, then how the mango tree has not been separately mentioned in the sale-deed, then how the pre-emptor can gain knowledge that a separate price of the mango tree was assessed and it was paid. This version of the appellant pertaining to the partial preemption has no merit."
' In the case reported as Shamsher Khan vs. Muhammad Sawar and others [1986 M LD 521] a land was sold against the consideration of Rs, 5,00,000/-. The price of the land was fixed as Rs, 470,000/- and the price of the tubewell sunk on the land was mentioned as Rs, 30,000/-. The trial Court observed that suit is hit by partial pre-emption but the Lahore High Court observed that the tubewell is the part of the land in dispute and covered by the definition of land contained in the Alienation of the Land Act, 1900. It was observed in Para 4 of the judgment as wider: "4. Before me Issues Nos. 2, 3, 8 and 9 have been mooted. It is pertinent to note that the sale deed shows that the land in dispute was sold for Rs, 4,70,000/- whereas the tubewell was separately sold for Rs, 30,000. In the plaint tubewell has not separately been mentioned, but the entire sale has been sought to be pre-empted. Rs, 5,00,000, the alleged sale price has also been mentioned in the plaint. Mr. Muhammad Mahmood Bhatti, Advocate, learned counsel for the respondents has scrupulously conceded that the tubewell is a part of the land in dispute and covered by the definition of land contained in the Alienation of Lands Act and had the tubewell been sunk beyond the land in dispute, then the suit would have been hit by partial pre-emption, but at present, since the tubewell is located in the disputed land, the principle of partial preemption would not apply.
Issue No, 2, therefore, goes against the respondents."
' In the case reported as Malik Muhammad Saleem and another vs. Commissioner, Rawalpindi Division, Rawalpindi and 3 others [FED 1976 Lahore 1233], it was observed by the Lahore High Court as under: ' "Thus 'land' is a sum total of all the aggregate rights contained in a piece of land vertically down to the centre of the earth and up to the sky. It, therefore, leaves no manner of doubt that it is the entire vertically located property that is to be acquired and not its horizontal slices or any one of its constituents. This view was taken in Metropolitan District Railway Co., London (1). The company acquired a piece of land for constructing an underground railway line. After excavating the soil, the company constructed the line, built an arch over it and replaced the surface over the arch. It then declared the vacant space over the arch as 'superfluous land' and decided to sell it. It was held per majority view that according to Section 127 of the Lands Clauses Consolidation Act, 1845, the 'superfluous land' must be land separated by a vertical, no horizontal, boundary from land acquired for the purpose. Land, thus extends vertically from centre of the earth to the sky.
7. We thus go over to the word 'includes', to see if it restricts the above import of 'land' or enlarges it.
According to a large number of decided cases the words 'includes', `including' or `means and includes' have been held to enlarge the scope of the word over its ordinary and genuine meaning together with what it is said to include. In the present case the definition says 'land' includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. This specifically means 'land' is what it ordinarily means together with the rights arising out of land and all things permanently attached to it. In Nasibun and others v.
Prosunker Ghose (2), It was held as under:- ' "The definition of a bond as given in the Stamp Act, XVIII of 1869 (which governs the case) is as follows: ' `Bond includes every instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed as the case may be.
' The argument addressed to us has turned upon this language only; but we may observe that this language does not contain an exhaustive definition of the term `bound'. The word 'includes' has an extending force, and does not limit the meaning of the term to the substance of the definition."
' The same view was taken in Pir Shah Mar dan Shah v. Chief Land Commissioner Sindh (3) and Usmania Glass Sheet Factory Ltd. (4). The view taken in the above judgments is the same that these words do enlarge the scope of the word preceding it.
' `Land' as defined above includes the benefits arising out of land etc. As used in the statutes, it is meant to enlarge the scope of the word with which it is used. Therefore, 'land' would mean land together with any superstructure, fixtures, etc. Thereon and benefits arising therefrom. 'Land' thus is a sum total of land plus benefits arising out of land plus all things attached to or permanently fastened to anything attached to earth. All this is an indivisible whole and has got to be acquired as a whole and not piece-meal as held in Pinchin v. London & Blackwall Rly. Col. (5). It is the land including the other rights arising out of it and not the rights detached from the land which have to be acquired as observed in Raja Shayam Chand Mandraj and others vs. The Secretary of the State
(6) and Clarke vs. School Board for London (7).
' Section 3(1) itself has also been interpreted by the Sindh High Court in Province of Sindh vs. Harkrishindas Gulabrai (1) as under: ' Land is defined in Section 3 of the Act as including benefits to arise from land, and things attached to the earth or permanently fastened to anything attached to the earth. For the purposes of the Act, therefore, land includes buildings and trees and standing crops. The definition is wider than that of immovable property under the Transfer of Property Act."
8. Thus, we conclude that the trees and Aar-Banna are attached to the land and are not a separate entity to be sold separately. Non-mentioning of the same in the plaint does not affect the suit of the plaintiff and the suit of the plaintiff is not hit by the partial preemption. The judgments of the High Court as well as the Courts below are not maintainable.
9. The trial Court while deciding Issues No, 1 and 2 has decided that the plaintiff has a right of pre- emption and has a cause of action to maintain a suit, however, the suit was dismissed being hit by the doctrine of partial pre-emption. While deciding Issue No, 4, the trial Court observed that the defendant is entitled for the costs of improvement to the tune of Rs, 11,58,954/- in case of decree of possession against him. Additional Issues No, 1, 3 and 4 were decided against the defendant. The defendant has neither filed any appeal against the issues which were decided against him, nor he filed cross objections in the appeal filed by the plaintiff-appellant. The only argument advanced by the counsel for the defendant-respondent was that further relief of possession of house was not prayed for by the plaintiff, therefore, the suit is not maintainable. The argument has no force because the suit has been filed for possession on the basis of right of prior purchase. The house was not sold. The defendant has claimed the costs of improvement. He is entitled for the same as decided by the trial Court in issue No, 4, to the tune of Rs, 11,58,954/.
' The result of the above discussion is that the appeal is accepted. The judgment of the High Court and the Courts below is set aside. The suit of the plaintiff is decreed. The plaintiff shall deposit the decretal amount to the tune of Rs, 30,000/-, plus the expenses incurred on execution of sale-deed (which shall be calculated by the trial Court) and the costs of improvement amounting to Rs, 11,58,954/-, within a period of 60 days from the date of announcement of the judgment, in the trial Court, failing which the suit shall be deemed to be dismissed. There will be no order as to costs.