MUHAMMAD SHERAZ KIANI, J.--- Both the appeals have been directed against the same judgment and decree dated 30.11.2016, passed by the learned District Judge, Hattian Bala.
2. As common questions of facts and law are involved in both the captioned appeals, hence, were heard together and are decided as such through this single judgment.
3. Facts forming the background of appeal No, 11/2017, are that Syed Intisar Hussain Gillani, plaintiff- respondent, herein, filed a suit for possession and preemption alongwith prayer of perpetual injunction pertaining to land comprising Survey No, 1277, Khewat No, 136, measuring 19 marlas, situated at Village Neeli Dhani Shandara, Tehsil and District Hattian Bala, against Zaffar Ahmed Shah and others, in the Court of Senior Civil Judge, Hattian Bala, on 08.05.2012 by stating that Sharbat Hussain Shah defendant-respondent No, 2, herein, transferred the aforesaid land in favour of respondent No, 1 through agreement-to-sell without knowledge, consent and notice on 16.04.2012. Thereafter, a house was also constructed upon the disputed land measuring 01 Kanal, 05 marlas for residential purpose. It was stated that disputed land is adjacent to plaintiffs land, as such, privacy of plaintiff is disturbed. Plaintiff requested time and again to accept his right of prior purchase, but, the defendants have denied the same. A rival suit for pre-emption and cancellation of agreement to sell dated 16.04.2012, was also filed by Ibrar Hussain Shah against Zaffar Ahmed Shah and others before the Senior Civil Judge, Hattain Bala on 07.08.2012 pertaining to the same land. Both the suits were contested by the parties by filing written statement, wherein, they have refuted the claim of each other, out of the divergent pleadings of the parties. The learned Trial Court framed consolidated as many as 08 issues vide order dated 31.12.2012, and parties were directed to lead evidence in support of their respective claims. After hearing the learned counsel for parties, the learned Senior Civil Judge, Hattian Bala, through consolidated judgment and decree dated 31.05.2016, decided the case in favour of plaintiff-lbrar Hussain Shah, subject to deposit amount of Rs, 53960/- alongwith cost within one month it was also ordered in default the suit shall be considered as dismissed. The counter-suit titled "Syed Intisar Gillani v. Zaffar Ahmed Shah and others" was dismissed for want of proof. Feeling dissatisfied from the aforesaid consolidated judgment and decree dated 31.05.2016, Syed Intisar Hussain Gillani, preferred, an appeal before District Judge, Hattian Bala on 16.08.2016. The learned District Judge, after hearing the learned counsel for the parties, vide judgment and decree dated 30.11.2016, partially accepted the appeal to the extent of 07 marlas and 04 sarsai in favour of Syed Intisar Hussain and remaining land measuring 11 marlas 05 sarsai, decreed in favour of respondent No, 3, Ibrar Hussain Shah, hence, the instant regular appeal.
4. The facts of the case in appeal No, 145/2016, are similar to appeal No, 11/2017 as mentioned herein above, hence, need not to be reiterated for the sake of brevity and convenience.
5. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.
6. The learned counsel for the appellant Ibrar Hussain Shah, mainly contended that the appellant, Ibrar Hussain Shah is nephew of the vendor, as such he has superior right vis-a-vis .Intisar Hussain Gillani rival preemptor on the ground that he has close relationship with vendor. The learned counsel for Intisar Hussain Shah submitted that the land of the pre-emptor, Intisar Hussain Gillani is also adjacent to the suit land and he is not only co-sharer, but also comes within the definition of Shafi-Jar as well, so he has got superior right vis-a-vis, Ibrar Hussain Shah, who is only a 'Sharik khiwat'. The both arguments are against the law because under Section 14 of The Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (prevalent at time of institution of the suit) the pre-emptor who comes in the category of first degree as Shafi-Sharik excludes the other two categories of pre.-emptors (Shafi-Jar and Shafi Khalit), so when any pre-emptor comes within the purview of Shafi Sharik then the second category is not considered and the case is to be decided on the basis of first category. According to Section 16 of the Act when someone is a pre-emptor and proved to be the co-sharer in the sold land, he has the prior right of purchase of the suit land, if there are more than one 'Shafi-Sharik they are entitled for the suit land according to proportionate share of the ,preemptors in the relevant khiwat and in such state-of-affairs as he both rival pre-emptors are co-sharers. in the Khiwat, hence the right of prior purchase would be according to their respective share of khiwat. The relationship as contended by the learned counsel for the appellant, fbrar Hussain Shah has no bearing upon the matter, thus, the learned Trial Court fell in grave error while dismissing the suit of the appellant, Intisar Hussain Gillani on the ground of relationship of Ibrar with vendor. For proper appreciation Sections 14 and 16 of The Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 is usefully reproduced as under:--
14. Persons in whom right of prior purchase vests in respect of sales of agricultural land and village immovable property. (1) Subject to the provisions of Section 13 the right of prior purchase in respect of agricultural land and village immovable property shall vest:---
(a) firstly in Shafi Shareek;
(b) secondly in Shafi Khalit: and
(c) thirdly in Shafi Jar. Explanation :
1. "Shafi Shank" means a person who is a co-owner in the corpus of the undivided immovable property sold with other person or persons.
2. "Shafi Khalif" 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.
3 "Shafi Jar" means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold.
(2) Whether all the classes of pre-emptions referred to in sub-section (1) are the claimants the first class shall exclude the second and the second shall exclude the third.
(3) There are more than one participators in the special rights attached to the immovable property sold the .person having special right shall precedence over a person having a general right.
16.Exercise of the right of prior purchase where several persons equally entitled; where several persons are found by the Court to be equally entitled to the right of prior purchase the said right shall be exercised.
(a)If they claim as co-sharers. in proportion among themselves to the shares they already hold in the land or property: (b)If they heirs, whether co-sharers or not, in proportion among themselves to the share in which but for such sale they would inherit the land or property in the event of vendor's death without other heirs.
(c) If they claim as owner of the mahal, in proportion among themselves to the shares which they already hold in the mahal.
(d) If they claim as occupancy tenants in proportion among themselves to the area respectively hold by them in right occupancy." (underlining is mine)
In light of clause 1(a) of Section 16 of the Act reproduced hereinabove, the learned District Judge, Hattian Bala, has rightly concluded the case of both rival preemptors by awarding them proportionate share according to their respective shares in the Khewat, so judgment and decree of the learned District Judge, Hattian Bala dated 30.11.2016 is based upon sound and cogent reasons and no illegality or perversity has been committed.
Therefore, in the light of what has been stated above, both the appeals are hereby dismissed and the judgment and decree passed by the learned District Judge, Hattian Bala dated 30.11.2016 is maintained. The parties shall bear their own costs.