' Jan Amir etc. Were owners of 130 kanals 11 marlas of land situate in the area of Latambar, Tehsil (now District) Karak. Through two sale Mutations Nos. 57 and 255, dated 8th January, 1976 and 11th October, 1976 certified copies Exh. P. W. 3/2 and Exh. P. W. 3/3, they transferred the said land in the names of Sakhiur Rehman and Masoodur Rehman for ostensible sale consideration of Rs, 33,000.
2. Rab Nawaz and his two brothers, the petitioners, instituted preemption suit against the vendees in Civil Court, Kohat on 5th January, 1977. It was claimed that they were owners of adjacent land bearing Khasra Nos. 6700, 6703, 6704 and 6705 while the vendees had no such qualification, therefore, they were entitled to possession of the land. As regards the sale price it was contended that the land in question has been sold at the rate of Rs, 50 per kanal, for Rs, 6,775. The suit was resisted by the vendees-respondents. The trial Court on the pleadings of the parties in view of their variance, framed 13 issues appertaining to the preferential right of pre-emption, the sale price, market price, maintainability of the suit, form, partial pre-emption, estoppel and limitation. The parties produced their evidence and the learned trial Judge (it may be necessary to state that the case was transferred to the Court of Civil Judge, Karak when Court of Civil Judge was established there), vide his judgment, dated :8th June, 1978 held under issue of limitation, that the suit with regard to Mutation No, 255 was within time but that in respect of land covered by Mutation No, 57 barred by limitation. Under Issues 2 and 11 (cause of action and right of pre-emption) it was held that the pre-emptors had no cause of action as they failed to establish superior right of pre- emption, for the reason that the vendees were co-owners in Khasras Nos. 6576 and 6679, Shamilat Deh and that the said Khasras numbers were contiguous to the suit land like the land of the pre- emptors. In result, the suit of the pre-emptors was dismissed. The parties were left to bear their own costs.
3. Dissatisfied the pre-emptors went in appeal and Mr. Muhammad Ayub Khan, then Additional District Judge, Kohat heard the appeal and confirmed the finding of the trial Court as far as pre- emptors' right of pre-emption vis-a-vis the vendees was concerned. On the issue of limitation he held that the entire claim of the pre-emptors-appellants was barred by limitation. Consequently, vide his order, dated 11th of July, 1979 he dismissed the appeal.
4. Still feeling aggrieved, the plaintiff-petitioners have filed revision in this Court, which was admitted for full hearing to determine if the vendees could successfully avoid claim of pre- emption being owners in the adjacent 'Algada.' Moreover, the question of limitation also required consideration.
5. It is admitted that an area of 130 kanals 11 marlas of land consisting of Khasras Nos. 6696-t697- 6695.6698-6691-6702-6690-6699 and 6701, has been transferred in the names of the vendees vide two sale mutations referred to above. Exh. P. W. 1/3 is copy of Shajara Kishtwar, wherein, not only the land in which the petitioners are owners bearing survey Nos. 6703, 6704 and 6705 is shown adjacent to the Suit Khasras Numbers (lying in bunch) but Khasras Nos. 6679 and 6576 are also shown contiguous to the land in question. The latter Khasras numbers are recorded as Shamilat Deh and admittedly in the shape of 'Algada.' It was urged that as the vendees had no other adjacent land except these two Khasras numbers and the said Khasras numbers being a ravine (Algada), therefore, they could not claim to have pre-emptive right. In other words that keeping in view the size and nature of the property, it would not invest the vendees with the right to successfully defeat the right of pre-emption of the pre-emptors. To be more clear, ownership in 'Algada' would not extend right to the vendees to ward off the suit of pre-emption. For support, the learned counsel for the petitioners places reliance on a Full Bench decision of this Court reported as PLD 1976 Pesh.
19. In the said case it was held that pre-emptor could not claim pre-emptive right on the ground of contiguity in the village thoroughfare.
6. In an unreported case, Said Rehman v. Muhammad Shah (C. R. No, 136 of 1977, decided on 14th November, 1978), the same point came for consideration and it was observed that :- "Now it would be obvious that the learned District Judge has equated thoroughfare with ravine. But in this respect, he seems to have been mistaken. Whereas thoroughfare is open for use to all and no co-owner can restrain anybody from using it, it is not the case with respect to Algada (i. e.
Ravine). A ravine, if it is joint property, is exclusively owned by the co-sharers and unlike a thoroughfare, a co-sharer in the ravine can prevent any other person from taking stones, sands or Bajri for construction purposes. He has every right to sell his share in the ravine individually or collectively with the other co-partners to separate his share in the ravine. He has also the right to level its portion for cultivation purpose.
' For all these reasons, I am, therefore, clearly of the view that the learned District Judge has misconceived the ratio laid down in the above-cited case (PLD 1976 Pesh. 19). Under the circumstances, the learned trial Judge has rightly held that both the parties have equal pre- emptive right in the present case."
7. I am in respectful agreement not only with the conclusion but the reasons advanced in support of it. The right of pre-emption, we need not forget is an artificial right and as such, it may not be protected from defeat on legal as well as technical grounds. The right of pre-emption on the ground of contiguity founded on ownership on `Algada' and that in thoroughfare stand on different footing, for the reasons mentioned above. I am of the considered opinion that ownership in `Algada' will provid right to the vendees to successfully ward off suit for possession by preemption on the ground of contiguity.
8. As far as the finding of limitation is concerned, it cannot be interfered with as it is supported by evidence on the file. Section 31 of the N.-W. F. P. Pre-emption Act, 1950 prescribes two periods of limitation for a suit of pre-emption, i. e. One year from the date of attestation of the mutation or, where property is capable of physical possession, one year that from the date of physical possession, whichever is earlier. It has been held in Hussain Bakhsh Khan v. Hussain Bakhsh and another that where evidence of physical possession of the vendee prior to the attestation of mutation is clearly established, limitation would run from the date of physical possession. The evidence on the record shows that the vendees got the possession under the same earlier than the attestation of the sale mutation and made construction over a part of the land, therefore, the suit brought after the lapse of one year, will be barred by law of limitation.
9. In result finding no force in the revision petition, it stands dismissed. Keeping, however, the legal position involved I would leave the parties to bear their own costs. PLD 1961 Pest). 33