MUHAMMAD FAHEEM WALI, J. Petitioner filed this petition under Section 115 of the Code of Civil Procedure (Act-V) 1908 questioning the legality of Judgment and Decree dated 29.03.2014 of learned Additional District Judge-II, Haripur whereby his appeal, filed against Judgment and Decree dated 26.01.2011 of the learned Civil Judge, Haripur, 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 against the respondent, by exercising his right of pre-emption over the property sold through registered deed No. 495 attested on 22.03.2006. It was contended by the petitioner in his plaint that the property was belonging to Mst. Zakarya Bibi etc. who sold the same to respondent in lieu of sale consideration of Rs.70,000/- but in order to defeat his right of pre-emption, an amount of Rs.
500,000/- was mentioned in the mutation. Petitioner further contended that he got the knowledge of impugned sale on 13.04.2006 at 05:00 PM at his shop situated at Hattar Road, Kot Najibullah through Muhammad Javed son of Channan Khan and he there and then expressed his intention to pre-empt the suit sale and thereafter on 22.04.2006, sent notice Talab-i-Ishhad to defendant through registered post AD. Plaintiff claims his superior right over the property being a co-sharer, contiguous owner as well as participator in the amenities attached to the suit property.
3. The respondent/defendant contested the suit by filing his written statement wherein he denied the claim of the plaintiff. Thus, after framing issues and recording pro and contra evidence of parties, the learned trial Court dismissed the suit vide Judgment and Decree dated 26.01.2011.
Discontented with the dismissal of his suit, the petitioner/plaintiff preferred an appeal which too was dismissed by the learned Additional District Judge-II, Haripur vide Judgment 29.03.2014. Hence, the instant petition.
4. Arguments heard and available record gone through.
5. The record transpires that the petitioner pre-empted the sale of suit property by claiming himself to be a co-owner in the suit Khasra number as well as a contiguous owner. In the heading of plaint, the plaintiff has mentioned the boundaries of the sold land by showing property of the legal heirs of Malik Muzaffar Khan at its Northern sider, at Southern side property of Muzammil Din, at Eastern side there is a road and at Western side there is a plot of Raja Abdul Abdul Qayyum and Abadi of Kot Najibullah.
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-
(a) firstly in shaft-sharik;
(b) secondly in shaft khalit: and
(c) thirdly in shaft jar. Explanation. i. "Shafi Shank" means a person who is a co-owner in the corpus of the undivided immovable property sold with other person or persons.
"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. "Shafi-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 orant Shafi-Sharik, no doubt petitioner is a co-owner in Khasra No. 393 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 Khasra No. 393 cannot be taken as a corpus particularly when the nature of property has been changed into Abadi at the spot, which is in possession of different persons.
8. In light of the above narration. ownership in a specific Khasra number, does not automatically make a co-owner to be 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 v. 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 v.
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 pre-emption 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. Pre-emption 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 suit Khasra 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 pre-emptor, as contended in the plaint, the vendee purchased a specific constructed property consisting upon four shops, boundaries whereof have also been mentioned in the heading of plaint, whereby the property belonging to the petition is not adjacent to the suit property.
11. The petitioner while appearing as PW,6, admitted during his cross-examination that he purchased the property in the shape of four shops and a house in the year 2002, which is a separate chunk of land and also admitted that there are other houses of different co-owners in the suit Khasra number, therefore, suit Khasra number, having multiple corpus cannot provide a Khata-shank owner the right of pre-emption being Shafi-Sharik until and 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. 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 of Khasra 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.
13. The second and 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, in the light of boundaries clarified by the petitioner himself in his plaint as well as in his Court statement, no question of adjacency could arise at all. Moreover, due to construction of abadi at the spot, the property in question has lost its agricultural status and the participation in the amenities is no more a ground for that purpose, nor any evidence in this regard is forthcoming on the case file.
14. 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 ACE, 1987.
15. 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.