MUHAMMAD FAHEEM WALL J.- Petitioner filed this petition under Section 115 of the Code of Civil Procedure (Act-V) 1908 questioning the legality of Judgment & Decree dated 30.10.2014 of learned District Judge Tank whereby his appeal, filed against Judgment & Decree dated 13.12.2012 of the learned Civil Judge-I Tank, was dismissed and thereby the decree as to dismissal of the suit of petitioner stood concurrently maintained.
2. Facts of the case, as narrated in the plaint, are that the petitioner/plaintiff instituted a suit for the exercise of right of pre-emption against respondent/defendant on the ground that defendant purchased an area of 10Kanals-17's through oral agreement from previous owner Fayaz Hussain against a sale consideration of Rs.24,000/-. The plaintiff claiming himself to be the co-sharer and adjacent owner, narrated the performance of Talabs in the manner that his grandson Saif-ur- Rehman came to his house and conveyed the information of oral sale to him on 10.05.2005 (Tuesday) at 05:00 PM. On receiving said information, plaintiff immediately pronounced his right of pre-emption in the presence of said informer and his son Haji Muhammad and then he sent notice of Talb-e-Ishhad to defendant through registered mail. Plaintiff further contended that though defendant has taken possession of the suit chunk but in order to defeat his right of pre-emption the sale is not being documented.
3. The respondent/defendant contested the suit by filing his written statement wherein he denied the factum of sale. Thus, after framing issues and recording pro & contra evidence of parties, the learned trial Court dismissed the suit vide Judgment & Decree dated 13.12.2012. Discontented with the dismissal of his suit, the petitioner/plaintiff preferred an appeal which too was dismissed by the learned District Judge Tank vide Judgment dated 30.10.2014. Hence, the instant petition.
4. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
5. The record transpires that the petitioner pre-empted the oral sale of suit property and in Para No.3 of his plaint had given the detail about the performance of Talb-e Muwathibat and Talb-e- Ishhad. The defendant though denied the oral sale in his written statement but during evidence he admitted the purchase of pre-empted chunk of land and also produced and exhibited agreement to sell in this regard as Ex.D.W.1/1. Learned trial Court framed issue NO.3(Whether the land has been purchased by the defendant?) and Additional issue No.2(Whether any sale transaction of the suit land has been taken place between the vendee and the vendor, if so its effect?) and in view of the admission as well as proof of sale vide Ex.D.W.1/1 there remains no other view but the one that there was a sale transaction in respect of the suit chunk of land. Learned trial court rightly decided these issues in favour of the pre-emptor and, such findings are well-reasoned; therefore, restored by reversing the findings of learned appellate Court with regard to the sale. ___------
6. An important ingredient to set the right of pre emption in action, is the superior right which is in- fact a constituent element of a pre-emption case. Section 6 of the Khyber Pakhtunkhwa Pre- emption Act, 1987, confers right of pre-emption on three classes of persons i.e. Shafi Sharik, Shafi Khalit and Shafi Jar. the relevant provision reads as under:
6. Persons in whom the right of pre-emption rests.--The right of pre-emption shall vest-- firstly in shafi-sharik; secondly in shafi khalit: and
(c) thirdly in shafi-jar. Explanation. i. "Shafi Sharik" means a person who is a co-owner in the corpus of the undivided immovable property sold with other person or persons. ii. "Shafi Khalit" 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. iii. "Shaft-Jar" means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold.
7. In order to ascertain the rights of pre-emptor as being Shafi-Sharik, no doubt both the Khasra Nos. i.e. 235 & 237 pertain to same Khata No.46(min) but under the law the requirement is that the pre-emptor must be co-owner in the corpus of the undivided immovable property sold to other person. The term co-owner in the corpus of undivided immovable property is a different term than co-owner in the Khata. Common legal meaning of 'corpus' are 'the main body of a thing; specifically principal of a fund, or estate".
In Cambridge English Dictionary corpus is defined as: "a collection of single writer's work or of writing about a particular subject" or "a body or the main part of the organ" ; The Oxford Dictionary explains the word Corpus in the following manner: "the main body or mass of a structure" ; The `DICTIONARY.COM' provides following definition of the Corpus: "a body, mass, or part having a special character or function", whereas, In the Black's Law Dictionary, the term 'Corpus' has been explained as: "The body; an aggregate or mass, (of men, laws, or articles;) physical substance, as distinguished from intellectual conception; the principal sum or capital, as distinguished from interest or income. A substantial or positive fact, as distinguished from what is equivocal and ambiguous".
These definitions and meanings when read in juxtaposition with the Explanation-I of the above extracted provision of law, where the word 'corpus' is followed by condition of `undivided immovable property', it indicates that entire Khata No.46 min cannot be taken as a corpus particularly when the said land is being sold in specific pieces with specific Khasra numbers.
8. In light of the above narration, ownership in a Khata, does not automictically make a Khata- sharik to be a Shafi Sharik and mere ownership in a khata does not make the petitioner a Shafi- Sharik in the pre-empted land. While rendering this view, I am fortified by the dictum laid down by the worthy Apex Court in the case of "Malik Sultan Mahmood through Legal Heirs VS. Muhammad Arshad Khan" (1991 SCMR 1542) wherein the august Court was of the view: "2. The claim of the petitioner to superior right was based on the assertion that he was a co-sharer in the Khata of which the land in dispute formed a part. It is to be noticed that the Khata was exclusively owned by one Waheed Muhammad who sold specific Khasra numbers of the Khata to the petitioner. Subsequently he sold other specified numbers to Mst. Kaniz Fatima who in turn sold the same to the respondent. As the petitioner was a purchaser of specified field numbers from the sole owner of the Khata he could not be regarded as a co- sharer in the remaining Khasra numbers included in the Khata."
9. In the same line, there is a reported judgment of this Court in the case titled "Iftikhar Ahmad Vs. Mst. Saima Zia" (2016 YLR 401 Peshawar) wherein this Court expressed the view that if a house (property) was divided, having become a separate entity through private partition, for all practical purposes, the same would no more be a joint property and for that purpose no preemption of any such part is allowed merely because originally it formed part of whole house/property. Similarly, the suit filed on the basis of contiguity alone was held not to be maintainable. Preemption is a right of substitution and once it is established that pre-emptor remains no more co-owner and also no contiguity exists, the suit would not be maintainable.
10. In the present case the petitioner/plaintiff contends to be the co-owner in the Khata of pre- empted property, adjacent owner and participator in the appendages. Thus, he claimed to have all the three basic qualifications needed by a pre-emptor to set such right in motion. According to the record of rights available on file as Ex.P.W.2/1, Ex.P.W.2/2 and Ex.C.W.1/P-1, the previous owner in the suit property was Riaz Hussain who sold some shares to the pre-emptor in Khatuni No.140 Khasra No.237 (per Ex.P.W.2/2). Similarly, as per Ex.P.W.2/1, the said Riaz Hussain, out of his property comprising Khatuni No.139 Khasra Nos.226, 235, 336, transferred a chunk of land in favour of Fayaz Husain. According to pre-emptor, as contended in the plaint, the vendee purchased a chunk of land from Fayaz Hussain in Khasra No.235. Hence, it has become clear that the pre-emptor owns property in Khasra No.237 whereas, the vendee purchased area in Khasra No.235.
11. As mentioned above, the pre-emptor purchased a specific chunk of land in Khasra No.237 from Riaz Hussain; whereas, Fayaz Hussain too purchased land from the said Riaz Hussain out of Khasra Nos.226, 235 & 336, and out of his said land, he sold some of the area comprising Khasra No.235 to the vendee. There is no iota of evidence which may reveal that the entire Khata is an undivided piece of a joint land, particularly when sales in specific survey numbers with specified pieces of land make the belief otherwise. If the sale is admitted for the sake of argument, even then the same would be of no benefit for petitioner for the reason that corpus of land, in the case of vendee, was Fayaz Hussain with a separate Khatuni No.139 and Khasra No.235. The petitioner, undeniably, is having no proprietary rights in the Khatuni No.139 or its survey numbers. The corpus of petitioner is Riaz Hussain's land in Khatuni No.140 Khasra No.237, thus, Khata No.43(min) having multiple corpus cannot provide a Khata-sharik owner the right of pre-emption being Shafi-Sharik until & unless he is proved to be co-owner in the same corpus of the undivided property. Besides, the petitioner could not establish that he is co-owner in the same corpus of the undivided land.
12. It also appears from the record that the learned trial court vide order dated 04.12.2006 deputed the Court Bailiff to visit the spot and submit on-spot position. Accordingly, bailiff submitted his report with site-map as Ex.C.W.1/1 and Ex.C.W.1/2 respectively, wherein, he displayed a boundary wall and construction of various rooms inside the pre-empted chunk of land. The exclusive possession of land by the petitioner to the extent of his share, coupled with the factum of construction of building over a definite piece of land, the pre-emptor is no more co-sharer in the corpus of undivided immovable property. Reliance in this regard is placed on the reported judgment of this Court in the case titled "Abdullah Khan alias Abdur Rehman (deceased) through Legal Heirs Vs. Sher Ghulam" (1992 MLD 278) wherein this Court held that pre-emptor being in possession of exclusive part in the Khata due to private partition is no more co-sharer in the Khata and as such was not entitled to file suit on that basis.
13. Upshot of above discussion is that whenever pre emptor is owner in an undivided property, which has not been partitioned officially, privately or physically, in that case the entire Khata would form single corpus and a Khata Sharik owner can claim right of pre-emption on the basis of Shafi Sharik in the land. However, if the property is practically partitioned or sales of specific portions of land have been effected therein, this changes corpus of the undivided property and co-owner in the Khata would not remain owner in the corpus so divided, and therefore, his right of pre-emption on the basis of Shafi Sharik would not extend to the property sold in the changed corpus.
14. The second & third ingredients establishing a right of pre-emption on the basis of Shafi-Khalit and Shafi Jar are also missing in the instant case. Though petitioner claimed himself to be a participator in the appendages and special rights attached with the land sold and also claimed to be adjacent owner. However, Aks of the property (Ex.P.W.2/3) reveals that the boundary of Khasra No.237 of petitioner has been separated from boundary of suit Khasra No.235 by an intervening canal comprising Khasra No.250, thus no question of adjacency could arise at all. As far the Khasra No.250 i.e. an intervening canal between both the field numbers is concerned, no evidence has been brought on the record to show petitioner to be participatory in the special rights attached to the property sold. Moreover, due to construction of house, the property in question has lost its agricultural status and the participation in the irrigation water is no more a ground for that purpose. Also, no special rights are attached to the pre-empted property as the canal in the village Shamilat wherein petitioner only owns right of irrigation water; and a co-owner of a village Shamilat cannot be termed as owner of a contiguous property for the purpose of pre-emption.
Guidance to this effect has been derived from the judgment of august Supreme Court of Pakistan rendered in the case titled "Mushtaq Hussain Vs. Fated Khan & others" PLJ 2015 Supreme Court 112).
In view of the above, there remains no doubt that the petitioner was having no right of pre-emption to pre-empt the suit property within the contemplation of Section 6 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.
16.Now adverting to the performance of talabs, both the learned courts below have non-suited the petitioner due to non-performance of Talb-e-Ishhad and petitioner questioned findings of the courts below to this extent before this Court. Section 13(3) of the K.P. Pre-emption Act provides that, subject to his ability to do so, where a pre emptor has made Talb-e-Muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32, or knowledge, whichever may be earlier make Talb-e-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confessing his intention to exercise the right of pre-emption. In this case though petitioner claims the scribing and sending of notice Talb-e-Ishhad to vendee but, according to official of the post office (PW-1), the said notice returned unserved as vendee/defendant had refused to accept the same. The burden to prove the sending of notice and its return was upon the petitioner and he was therefore, required to produce the original notice, returned to him, in the Court but in his evidence none of the plaintiff's witnesses deposed even a single word about the return of original notice and its production before the Court particularly when respondent denied the same in his written statement. Undeniable in view of the provisions of Article 129 of the Qanun-e-Shahadat Order and Section 27 of the General Clauses Act, a presumption of service is attached to a notice, sent through registered post with acknowledgement due card, received back with endorsement of refusal, but the said presumption can only come in the field when such notice with A.D. Card is produced before the Court. Therefore, there remains no other view but the only one that petitioner/plaintiff failed to prove the performance of second talab and reliance in this regard is placed on the supra case of Sultan.
17. According to the official of post office i.e. PW-1, the notice Talb-e-Ishhad was delivered to the addressee by the Abdul Waheed Postman but the addressee refused to receive it. However, said Abdul Waheed was not produced in evidence, and as stated in the preceding para, neither original notice after its return to plaintiff nor the Acknowledgment Due Card was produced and exhibited in evidence and such a deficiency is fatal for the pre-emptor's case. Guidance to this effect may be derived from the judgment of august Supreme Court of Pakistan in the case of "Basharat Ali Khan Vs. Muhammad Akbar" (2017 SCMR 309) wherein the august Court was pleased to observe: There are two aspects of the point under discussion; firstly, whether the "acknowledgment due" part of the notice of Talb-i-Ishh ad under registered cover constitutes an imperative element of the prescribed mode of service affecting the maintainability of a pre-emption suit; and if so, whether a vendee can waive service of notice of Talb-e-Ishhad upon him by such a prescribed mode. Section 13(3) of the Act, 1991 specifies unequivocally that Talb-i-Ishhad shall be made by
(i) written notice (ii) attested by two truthful witnesses (iii) under registered cover (iv) acknowledgment due. The only situation in which the Act, 1991 does not require the sending of notice by registered cover acknowledgment due is when the post office facility is not available to a pre-emptor 1S.13(3) proviso of the Act, 19911 Secondly, according to case law, the prescribed condition of service of notice by registered cover acknowledgement due may be relaxed where the defendant/vendee admits that he has received notice of Talb-i-Ishhad. In all other cases, service of notice of Talb-i Ishhad upon a vendee must be established by the proof of each of the afore-noted four prescribed elements of the notice of such Talb. These prescribed elements of the service of a Talb-i-Ishhad notice are specific statutory requirements for the proof of service of notice of such Talb which demand has been construed to be a mandatory obligation of a preemptor-plaintiff. This means that if any of the afore-mentioned four elements of the prescribed mode of service of Talb-i Ishhad is not proven by a plaintiff, he dishonours his mandatory obligation and consequently, his pre-emption suit must fail. That deals with the first aspect of the matter noted above
18. For the reasons mentioned above, concurrent findings as to the dismissal of pre-emptor's suit recorded by the two learned courts below are quite justified, well-reasoned, unexceptional and do not call for interference by this Court in its revisional jurisdiction. No aspect of misreading and non- reading of the record or law could be pointed out by the petitioner. The Instant petition, therefor, fails hence, dismissed.