CH. MUHAMMAD MASOOD JAHANGIR, J.---The judgments dated 10.04.2013 and 08.04.2015 are subject of petition in hand, whereby suit for possession through pre-emption instituted by the respondent/pre-emptor was concurrently decreed by the learned lower fora.
2. The condensed facts leading to file instant Civil Revision were that area measuring 07 kanals 13 marlas falling in khewat No.10 (fully detailed in the plaint) titled by Humayun Iqbal and his two brothers against sale price of Rs.15,00,000/- was sold out to the present petitioners vide Mutation No.781 dated 20.02.2007. The said transaction was pirated by the respondent through afore-noted suit asserting that the sale, which despite being kept secret was known to him on 22.02.2007 at about 07:00' p.m. through Tariq Ahmad, when he along with Muhammad Ishaq was present in his house and promptly pronounced Talb-i-mu wathibat. It was further pleaded that after obtaining copy of sale mutation No.781, five independent notices of Talb-i-ishhad through registered post A/D were dispatched to the petitioners/vendees, but due to failure of Postman were received back un-served. To the extent of preferential right of pre-emption, it was asserted on behalf of respond ent/pre-emptor that pre-empted land was abutting to his owned area, besides right of way as well as flow of water over the property sold was shared in the appendages of said land, thus being qualified as Shafi Khalit and Shafi Jar the decree for pre- emption was claimed.
3. In contra, the petitioners/vendees denied due performance of Talbs by the respondent/pre-emptor as well as his better right of pre-emption.. Facing with the contest, the learned Trial Court framed as many as eight issues and after receiving evidence in pros and cons finally decreed suit of the pre-emptor and appeal filed on behalf of the vendees dismissed, thus the latters preferred this petition for setting aside of the unanimous verdicts duly reflected in para 1 ante.
4. Mr. Arshad Malik Awan, ASC, worthy counsel for the vendees petitioners argued that according to pleadings in Para No.7 of the plaint the pre-emptor himself was not satisfied that postman performed his responsibility provided under the law, therefore he was to be defeated per his own admission as averred in referred para, but Courts below without adverting to said vital aspect erred in law to decide issue qua fulfillment of talb-i-ishhad in affirmative. Mr. Malik further emphasized that there were more than dozen of the co-owners in the Khewat wherein pre-emptor was also co-sharer , thus suit for pre-emption solely filed on behalf of the latter without joining rest of the sharers was not maintainable, that pre-emptor was not a full and complete owner of the alleged neighbouring land, thus he does not qualify as Shafi Jar to be equipped with decree prayed for. The worthy couns el while relying upon judgment reported as Iftikhar Mehmood v. Abdul Latif and others (2009 CLC 462) argued that better pre-emption right was not available to the plaintif f, thus by accepting petition in hand, suit be dismissed.
5. Mr. Irfan Salamat Ali Bajwa, worthy counsel for the pre-emptor responded that per law on the subject the second talb was perfectly performed, that concurrent findings of fact returned by. two Courts below with regard to performance of demands being un-exceptionable cannot be interfered with while exercising revisional jurisdiction.
He further emphasized that a co-sharer in the adjoining land is equally competent to claim his superior right of pre- emption, that mere abutting of any of the IChasras vested to pre-emptor with sold land is enough to qualify being Shafi Jar. To strengthen his assertion to that effect, learned counsel for respondent has relied upon case law reported as Muhammad Yusaf v. Sikandar (PLD 1970 Peshawar 160) and Said Karim Shah v. Taj Muhammad (PLD 1974 SC 383 ). He lastly prayed for dismissal of Civil Revision in hand.
6. Arguments scanned.
7. Per pleadings and submissions advan ced by worthy counsel for the parties, the issue with regard to superior right of pre-emption needs preeminent consideration. Undoubtedly , according to existing law on the subject, there are three classes of persons, who are entitled to assert/claim right of pre-emption, which are as follows:- 1) She Shank who is a co-sharer in the property .
2) Shafi Khalit a participator in amenities and appendages.
3) Shafi Jar owner of adjoining immovable properties.
In the instant case, the plaintif f is pre-empting the sale of suit property being Shafi Khalit as well as Shafi Jar, which fact is also apparent from the contents of plaint. Admittedly , per copy of record of rights 2003-2004, Exh. P21 (available at pages 102 to 104), the pre-e mptor owned share viz 55/1451 equal to 02 kanals 15 marlas in khewat No.5 having 19 different khasras total measuring; 72 kanals 11 marlas. Whereas according to copy of jamanbandi for the same era, Exh. DI (available at page 109), complete strength of Khewat No.10 is 23 Kanals 01. Marla falling in six Khasras and the vendors were jointly owners of 3/9 share equal to 07 kanals 13 marlas in said khewat, who transferred their said share to the petitioners/vendees vide oral sale Mutation No.781 dated 20.02.2007, Exh. P24 (available at page 107). It was respondent/pre-emptor , who being sharer of khewat No.5 (consisting of , nineteen khasras) exercised his right of pre-emption against sale of land falling in khewat No.10 (consisting of six khasras), while asserting his superior right of pre-emption, therefore onus probandi was upon him to prove that he besides to be owner of adjoining area was a participator in amenities and appendages of the sold land. The pre-emptor in order to prove him being Shall Khalit and Shafi Jar examined oral as well as documentary evidence, especially the copies of revenue record. The Courts below axled its concurrent decisions on Aks Shajra, Exh. P22 (available at page 105). Its perusal revealed that neither area of khewat No.5 (comprising nineteen khasras) is forming a compact block nor khewat No.10 (having six khasras) is in assembled shape, rather khasras of both the khewats are scattered here and there, whereas admittedly out of nineteen khasras of khewat No.5 (shared by pre-emptor) only its three khasras i.e. 523, 528 and 531 are found to be contiguous to just three khasras viz Nos.513, 522 and 532 of the sold/pre-empted land, however rest of three khasras under pre-emption are certainly not abutting or adjoining to the boundaries of remaining sixteen khasras of khewat No.5. In such situation, the pre-emptor , on the basis of contiguity to the extent of only those three khasras could, at the most, claim to have a superior right of pre- emption, but obviously should have failed for the counts; firstly that decree for partial pre-emption is not warranted and most importantly that the vendees having become sharers in rest of three un-abutted khasras are safely defeating the right of pre-emption in the subject property . This proposition to some effect has already been clinched by the superior Court in case reported as Mst. Gul Rangeena v. Khushal Khan (1999 CLC 831). Its relevant para No.7 to better understand is reproduced here below:-
7. Aks Shajra Kishtwar and the copy of disputed mutation placed on record would certainly suggest that two Khasras have been sold in the disputed sale out of which one is Khasra No.324. Aks Shajra Kistwar would certainly reveal that the pre-emptor is not contiguous to Khasra No.324 and hence his right of pre-emption based only on contiguity is not extended to Khasra No.324. No decree of pre-emption can be passed qua Khasra No.324 and hence by purchase of this Khasra the lady vendee has become a co-sharer in the Khata and thus, happens to have a much superior right of pre-emption to that of the pre-emptor . When numerous Khasras are purchased by a vendee and to some Khasras the contiguity is not proved and such Khasras cannot be pre-empted, the vendee becomes a co-sharer in the Khata due to that Khasra and gets armed with a superior right of pre-emption and can very well defend a suit for pre-emption. On this score as well the pre-emptor was bound to be non-suited.
Thereafter same Court re-affirmed the said view in judgment styled as Muhammad lqbal v. Muhammad Gul (2010 CLC 1035 ). Its demonstrable findings are as under:- After having gone through the record, it transpired that the transaction of sale was effected in four Khasra numbers measuring 50 Kanals 13 Marlas out of which 2 Kanals 10 Marlas was purchased by the vendee/respondent. The petitioner had contiguity only with Khasra No.470 on the basis of Khasra No.476 whereas he had no contiguity with the rest of the three Khasra numbers nor the impugned Khasra numbers formed a compact block. So, apparently the petitioner seems to have a superior right of pre-emption on the basis of contig uity to the extent of one Khasra number . But on the other hand, the vendee-respondent can safely defeat the right of pre-emption by becoming co- sharer in the disputed property on the strength of the remaining three Khasra numbers. He being a co-sharer has a preferential right of pre-emption as compared to plaintiff/petitioner who happens to be the contiguous owner of the suit property . Reliance in this regard can safely be placed on Mst. Gul Rangeena v . Khushal Khan 1999 CLC 831 .
On the same pattern, his lordship Jawad S. Khawaja, when he was gracing this Court per his wisdom defined contiguity via judgment titled as Muhammad Ayub v. Hazrat Mansha (2006 MLD 1001 ) while concluding as under:-- "The entire concept of contiguity in matters of pre-emption is based upon the premise that the owner of land sharing a common boundary with land, which is subject-matter of a pre-emption suit, should have a right superior to that of a purchaser who does not own land having a common boundary with the suit-land. In the present case it is quite evident that the suit land has no common boundary with the land owned by the respondent/plaintiff in square No.88. The mere fact that killa No.25 in square No.88 has one corner touching the corner of killa No.1 in square No.102, which is part of the suit land, does not result in any shared boundaries between the two and as such, cannot be treated as being contiguous. It, therefore, follows that the ownership of the respondent/plaintiff in killa No.25 of Square No.88 does not vest in him a superior right of pre-emption in respect of the suit land."
This view has recently been concurred by the august Supreme Court in case styled as 'Allah Ditta v. Ali Muhammad' (PLD 2016 Supreme Court 73). The above referred decisions made it clear that where sharing of boundaries of both the lands viz owned by pre-emptor and under pre-emption is partial or deficient it is not enough to meet with the requirement of both the properties being 'contiguous' to each other in terms of explanation to Section 6 of the Punjab Pre-emption Act, 1991. At the cost of repetition, but just to recall that in the lis in hand neither the land vested to pre-emptor nor the other , which was sold are forming compact block, therefore the case law referred by worthy counsel for the pre-emptor being distinguishable cannot be applied to the facts of this case
8. The additional drawback of the case of the respondent/pre-emptor would be that he was not full owner of the adjoining three khasras, rather he possessed meager share therein, who alone could not pre-empt sale of suit property for himself and the suit might have succeeded, if all other co-sharers had also joined him in claiming preferential right of pre-emption. This view finds support from judgments reported as Iftikharuddin v. Jamshed K.
A. Karker and 11 others' (PLD 1995 Karachi 608) and Iftikhar Mehmood v. Abdul Latif and others (2009 CLC 462).
9. The pre-emptor has not examined an iota of evidence to establish that he was Shafi Khalit, thus to this extent qualification could not be proved at all. The findings of two Courts below on issue No.1 with regard to superior right of pre-emption though are unanimous, yet being result of misreading and non-read ing of evidence, besides against the law on the subject cannot be approved, which are reversed while answering it in negative.
10. Since the respondent/pre-emptor failed to prove his better pre-emptive right, the rest of discussion to return findings on remaining issues will be mere academic, thus Court does not feel appropriate to attend those, which otherwise will be sheer wastage of time as well.
11. As far as emphasis of learned couns el for the respondent that concurrent judgments of the two Courts below cannot be disturbed while exercising revisional jurisdiction is concerned, suffice it to say that normally this Court hesitate to invoke its said jurisdiction, but only in those cases where the unanimous findings of fact are based upon true appreciation of available evidence as well as free from misapplication of law. However , where Courts below committed misreading/non-reading of 'evidence in rendering their concurrent findings or those suffered from jurisdictional defect, then this Court cann ot shut its eyes, rather visitorial/ revisional jurisdiction is vested to it to check or even reverse such findings. See Nasir Abbas v. Manzoor Haider Shah (PLD 1989 SC 568), Muhammad Nawaz. alias Nawaza v. Member Judicial BoR and others (2014 SCMR 914) and Nazim-ud-Din and others v . Sheikh Zia-ul-Qamar and others ( 2016 SCMR 24 ).
12. Consequent to afore discussion based upon appreciation of available material, this Court does find that learned fora below had not only misread the evidence on suit file, but also escaped notice of the law on subject while holding the respondent to be Shafi Jar, therefore this Petition merits acceptance, which accordingly is allowed, the impugned decrees are hereby set aside and the suit instituted by respondent is dismissed. The parties to bear their own costs.