' RAM MUHAMMAD KHURSHID KHAN, ACTG. C. J.-This appeal by leave was originally filed by Salah Muhammad, plaintiff-pre-emptor, who died during the pendency of the appeal. He is now substituted by his heirs Ghulam Begum and ten others.
2. The appeal arises out of the judgment of the High Court dated 17-12-1978 in the following circumstances: Khan Muhammad Khan and Adalat Khan, respondents, purchased from Muhammad Malik and five others land measuring 39 kanals 3 marlas comprising Survey Nos.
864/475, 865/475, 867/475, 476, 479, 480, 457 and 476 min, falling under Khata Nos. 310 and 311 and Khewat No, 62/19, situate in the area of village Narakot, Tehsil Kotli, for a consideration of Rs, 32,0j0 vide sale-deed registered on 25th of January, 1972. The sale was sought to be pre-empted by Salah Muhammad, appellant (deceased), on the plea that he, being a co-sharer in the `khata' and 'khewat' of which property sold formed a part and also a co-sharer in the land sold, has prior right of purchase as compared with the vendees.
3. The appellant's right of prior purchase w-is denied by the respondent vendees. His right was held to be superior to that of the vendees by the learned Sub-Judge, Kotli, vide judgment dated 30-12- 1976. The learned District Judge, Kotli, on first appeal moved by the respondent vendees, vide judgment dated 8-4-1978, however, held otherwise and dismissed the suit of the appellant (deceased) which view was also affirmed on second appeal moved by the appellant in the High Court vide judgment dated 17th of December, 1978. This appeal, by leave, seeks to impeach the said judgment of the High Court.
4. The sole question that falls for decision in this appeal is as to whether the view regarding the controversial issue of superior right taken by the two appellate Courts is correct. The ground advanced in support of the prior right of purchase by Salah Muhammad is that he had purchased occupancy rights of the land measuring 6 kanals 19 marlas under field Nos. 457 and 476 min. From Qutab Din, the father of Abdul Malik, one of the vendors, during the Dogra Regime, on 29th Phaggon, 2001 Bikrimi which corresponds to 11th of Marzh, 19- 5, vide sale-deed Exh. P. A. 1 and this fact while giving him the character of co-sharer in the `ktiewat', `Ithata' of the land and the land sold clothes him with the superior right to purchase the suit land.
5. Raja Muhammad Siddique, in support of the appeal, submitted that Salah Muhammad, by virtue of the sale-deed Exh. P.A. 1, had purchased the occupancy rights of the land under Survey Nos. 457 and 476 mid. And on the basis of another sale-deed Exh. P.B. 2, registered in the year 1962, he had also purchased proprietary rights of the land measuring 32 kanals 14 marlas under Survey Nos.
482, 482 min, 484 min, 457, 476 and 481 from Muhammad Yaqub Khan, son of Jafoo Khan, one of the proprietors and these transactions while giving him the character of a co-sharer in the Ihewat', `khata' of the land sold and also a co-sharer in the suit land make his right to pre-empt the suit land superior to that of the respondents (vendees). It would thus be noticed that appellant claims decree of preemption for his being a co-sharer in the `Khata', `Ichewat' and suit land.
6. The occupancy and the proprietary rights of land sold to the appellant and the respondents fall under Khewat No, 19/19. The total land under this Ihewat' measures 46 kanals 3 merles. The land sold under preemption measures 39 kanals 3 marks. According to Raja Muhammad Siddique, the learned counsel for the appellants, the remaining 7 kanals of land is the land which had already been transferred to Salah Muhammad during Dogra Regime. This fact, he maintained, also proves the sale-deed brQutab Din in favour of Salah Muhammad. It had also further been contended that Muhammad Zafar, son of Salah Muhammad, who appeared as a witness, also proves sale-deed (Exh. P. A. 1) and as nothing has been asked in cross-examination to discredit this witness on the point, he is to be believed.
7. Raja Muhammad Aslam Khan, the learned counsel appearing on behalf of the respondents, conceded and in our view rightly the execution of the sale-deed of the occupancy rights of land under Survey Nos. 457 and 476 min. In favour of Salah Muhammad by Qutab Din, during Dogra Regime. He also admits that by virtue of this sale-deed initially Salah Muhammad and now his heirs are in continuous possession of this land as occupancy tenants. In view of the ac omission of Raja Muhammad Aslam, there remains no occasion to discuss the evidence regarding the execution of the sale-deed of the occupancy rights of land under two survey numbers, i. e. 457 and 476 min. In favour of Salah Muhammad in Dogra Regime. The learned counsel, however, maintained that this sale-deed does not clothe Salah Muhammad with any prior right to purchase the suit land. The salt-deed executed in favour of Khan Muhammad Khan and Adalat Khan, respondents, were executed by Muhammad Malik son of Kutab Din, Said Muhammad son of Imam Din, Qudratullah son of Barkatullah, Amrat Begum and Bibi Rani daughters of Barkatullah. This land, he submitted, transfers the proprietary rights of the land while the appellant had only purchased the occupancy rights. Besides, he maintained that the land purchased by the respondents falls under Survey Nos. 864/475, 865/475, 867/475, 476, 479, 480, 457 and 476 min. While the land whose occupancy rights had been purchased by the appellant falls under Survey Nos. 457 and 476 min.
And 'ithatoonil No, 310 ; and the survey numbers of both the sale-deeds have no common proprietors or occupancy tenants. According to him the sale-deed Exh. P.A. 1, executed by Qutab Din in favour of Salah Muhammad, transfers right of occupancy in the land under Survey Nos. 457 and 476 min. Measuring 6 kanals 19 marks which fact does not make him a co-sharer in the survey numbers now sold to the respondents (vendees).
8. From the objections, listed above, the legal questions involved are :-
(i) whether a person who purchases occupancy rights under specific survey numbers in a joint `khata' or Ihewat' can be said to have become a co-sharer in the other property under such 'khata' or `khewat' within the meanings of section 14 (Fourthly) of the Jammu and Kashmir Right of Prior Purchase Act even if the field numbers sold are not jointly owned by all the persons ?
(ii) whether a person who purchases only occupancy rights of the land under certain survey numbers under a `khata' or Ihewat' can in any way claim prior right against a person who purchases proprietary rights of different survey numbers under the same `khata' and ikhewat' ?
WO whether the words Ithewat' and 'khata' are synonymous and if not what is their true meaning ?
(iv) whether after the promulgation of the land Reforms Act the appellant had acquired the proprietary rights of the land sold to him and if not what is its effect on his right of prior purchase ?
9. We propose to decide all the objections listed above together. What do we mean by "consider" in relation to pre-emption laws is the basic question to be attended to in order to resolve the controversy. The resolution of the question as to whether a person having a part of land under a `khata', Ichatoone or Ibewat' could become a co-sharer in all the survey numbers under such 'khata', lhatooni' or lchewar is also very important. The Phraseology of section 14 (Fourthly) of the Right of Prior Purchase Act has been imported from section 15 (Fourthly) of Punjab Pre-emption Act.
Section 12 (Firstly) of N.-W. F. P. Pre-emption Act is also couched in identical words. This sub-clause confers on the co-sharer the right of prior purchase. In order to determine who is a co-sharer, the interpretation placed on this word by the Courts in Pakistan thus can provide a useful guide. The word "co-sharer" clearly signifies that there are other persons, 1. e., who have a right in the property.
Where, therefore, the land sold is the sole property of the vendor in which the plaintiff has no share, the mere fact that he is an owner of the land in any other part of the same estate but not joint in the property under sale does not make him a co-sharer in the suit land so as to confer on him the right of pre-emption. In Shah Hussain v. Abdullah Khan and others (1) it was laid down that :- "A person who was once a co-sharer but had ceased to be so at the date of sale by partition or by parting with his rights in the joint property is not a co-sharer and cannot claim pre-emption as such. The right of pre-emption is not purely a personal right but is available to the pre-emptor as a co-sharer and is lost with the loss of ownership by the transferor. The object of the right of preemption appears to be that the pre-emptor should have tangible objective right in the property which affords him basis for the exercise of the right of pre-emption and untangible subjective or paper right does not give the pre-emptor the right to assail he transaction of sale." (Underlining* is ours).
' In Mardan Shah v. Shah Nazar Khan the word "co-sharer" has been defined :- "A co-sharer is not statutorily defined, but its legal concept is quite well-settled, namely, that a co- sharer, whatever the extent of his right in the joint property, is a co-owner in every inch of that property to the extent of his share until partition takes place which he can 'claim as a matter of right. However, a person who is a pas-owner of one of the walls of a house but has no right of any kind in any other part of the house whatsoever, is not entitled to call himself a co-sharer in the whole property. His claim, therefore, that by reason of his being a co-owner in a common wall of the disputed house, he should be deemed to be a co-sharer in the house in dispute to give effect to his pre-emptive right to that house, is too wild to need any further comment." (Underlining* is ours).
' This is how the word "co-sharer" is generally being taken by the superior Courts in various cases.
10. In the instant case we have given our considered thought to the objections listed above and are of the considered view that the purchase on occupancy rights of land under a specific survey number by a person from a `khewat', wherefrom some other persons had also purchased proprietary rights of land under different survey numbers, would not make such a person B co- sharer in the other land under the said lchewat'. To be exact the precis question posed is as to whether Salah Muhammad, appellant, who bad purchased the occupancy rights under Survey Nos.
457 and 476 min. Can considered to be a co-sharer of the survey numbers now under preemption and can he be said to have occupancy rights jointly with others in the survey numbers now sold. In our view the answer is in negative.
11. A plain consideration of the nature of the transactions in the circumstances of this case leads us to the following. The appellant, having! {{FOOT NOTE}}
(1) p L D 1967 Pesh. 284 (2) PLD 1970 SC 245 {{FOOT NOTE}} [Mere la Win] a right of occupancy land comprising Survey Nos. 447 and 476 min, case claim no mote or no less right in the property as held by the vendor. The vendor was in possession as an occupancy tenant Salah Muhammad (vendee) must be regarded as such by stepping into the shoes of his transferor.
The alienation of the occupancy rights of specific survey number transferred to the appellant thus would only entitle Salah Muhammad to retain the possession as an occupancy tenant and not as proprietor. Besides, the appellant has only interest in the land under `khata' No, 235 which covers the land sold to him. The land under `khata' Nos. 231 to 234 purchased by the respondents has no common identity with the land purchased by the appellant which falls under `khata' No, 235.
12. It is also the cardinal principle of law that if a person purchase specific survey numbers he cannot, ipso facto, become co-sharer in other survey numbers of the `khewat'. There is, however, one exception to it ; if a person purchases a fractional share, he, of course, becomes a sharer in other survey numbers of the 'khewat'. The instant case, however, is an exception to this settled principle of law inasmuch as in this case the appellant had purchased only occupancy rights of the land under Survey Nos. 457 and 476 min. He was no interest with other survey numbers purchased by the vendees-respondents. Obviously he cannot, having the character of an D occupancy tenant, be a co-sharer in other survey numbers of the `khewat' whose proprietary rights and not the occupancy rights had been purchased by the respondents. The appellant, having a different character of interest, cannot be deemed to have any interest whatsoever in other survey numbers of the land falling under the `khewat' and whose proprietary rights had been pucrhased by the respondent-vendees. The appellant has only occupancy rights in two survey numbers and be cannot be said to be a co-sharer of the land whose proprietary rights have been purchased by the respondents though the land falls under the same `khewat".
13. Our conclusion, therefore, is that Khan Muhammad Khan and Adalat Khan, respondents, bad purchased right of ownership and possession from the vendees of the suit land measuring 39 kanals 3 mar/as under `kbewat' No, 62/19 and lhatoone (khata) No, 310 comprising Survey Nos. 864, 865, 867, 476, 479 and 480 while the appellant had only pucrchased right of tenancy of the land measuring 6 kanals 19 marlas under Survey Nos. 457 and 476 min in the land falling under `khewat'
No,
19. Naturally the tenant cannot, in the circumstances of the case, have any mutuality with the land purchased by the respondents (vendees). Besides, on acquisition of proprietary rights of the land by a tenant the number of 'khewat' changes. Here `khewat' of land under both the sale-deeds, t. e., one in favour of the appellant (Exh. P.A.-1) and the other impugned sale-deed (Exh. D. A.) was originally No,
19. But on acquisition of the proprietary rights of the land sold the 'khewat' numbers sold has become 62/19.
14. It would thus appear that the instant case, as said earlier, is distinguishable. In the first instance there is no reciprocity and mutuality in the survey numbers purchased by the appellant and secondly the position of the appellant and the respondents has no identity. The appellant only occupied the position of an occupancy tenant while the vendee-respondents are proprietors of the land sold. The position, therefore, boils down to this that of immediately after the sale-deed to the appellant somebody would have purchased other survey numbers under the 'khewat' (they are purchased by tin, respondents) then the appellant, who is only occupying the land as occupancy tenant, would have no right even though the new purchuer was stranger because the appellant would also be treated as stronger in respect of other survey numbers. No deep thought is required to hold so. The reason is that the appellant would also, as said just now, be treated as a stranger in respect of other survey numbers. This is an elementary principle of law that the pre-emptor has to prove his right of prior purchase at three stages, 1. e., at the time of the sale ; at the time of institution of the suit and E at the time of the decree of the first Courts. Here in this case clause (Fourthly) of section 14 (b) of the Azad Jammu & Kashmir night of Prior Purchase Act cannot come in aid to the appellant for the simple reason that right of proprietorship of the survey numbers which have been purchased by the respondents was transferred to the tenants after the year 1961- 62 and the vendees were so entered in the Record of Rights pertaining to the year 1966-67 (Exh.
P.A.). They sold the land in their capacity as owners whil the appellant has only acquired the occupancy rights of the land under Survey Nos. 457 and 476 min and the owners vendees have to do nothing with them. It is significant that there is nothing on the record to show that proprietary rights of the Land under Survey Nos. 457 and 476 min which were purchased during the Dogra Regime by the appellant hitherto were transferred to them wider the Land Reforms Act. The appellant, as per record, is a tenant for his having purchased the tenancy rights while the respondents have purchased proprietary tights. How the tenant can be co-sharer with the owners o equated with an owner, we fail to understand.
15. The appellant and the respondents (vendees) have no mutua interests with each others. There is no right of joint ownership of the appellant and the vendees, either in the land purchased by the appellant o purchased by the respondents. The claim made by the appellant to the effect that for his having occupancy rights of land under two survey number in the same 'khewat' and 'khata' he be deemed to be a co-sharer in the Ian in dispute thus is without substance and, cannot be accepted. There I another important feature of the case which needs attention. From Exb. P.B.-1 it transpires that the land under Survey Nos. 457 and 476 min, whose tenancy rights were purchased by the appellant in the year 1961, falls exclusively under 'khata' No, 235 and they have to do nothing with the land falling under any other katas'. This document also shows that right of tenancy by virtue of sale-deed had dawned on Salah Muhammad only in respect of survey Nos. 457 and 476 min and not in respect of any of the survey numbers including the survey numbers sought to be pre-empted now. Exh. P.B. And Exh. P.B.-1 (Record of Rights pertaining to the year 1961-62) bear ample proof to corroborate this fact. They reflect Barkatullah and others to have acquired occupancy rights of the land sold to the total exclusion of the right of the occupancy of the land purchased by the appellant falling under Survey Nos. 457 and 476 min. Therefore, even assuming that the `khata' and 'khewat' numbers remain the same, the appellant cannot be treated to be a co-sharer in any way in the survey numbers now purchased by the respondents and as stated elsewhere a person who purchased a specific khasra number cannot be deemed be co-sbarer in the 'khew-4'. However, if somebody purchases a fractional share, naturally he become a `khewatdar'.
16. It is conceded by Raja Muhammad Siddique that the suit been filed by Salah Muhammad on the basis of his being a co-sharer of the `khewat' and not owner in the `Mahal'. We, however, subscribe, to his view that Exh. P.D. (Record of Rights pertaining to the year 1966-67) cannot be read to disprove the fact that the appellant was not a co-sharer. This document, we feel, was tendered in evidence to show that it reflects an incorrect entry of Muhammad Malik and others as having occupancy lights of the land under Survey Nos. 457 and 476 min in departure to the entries made in the Record of Rights pertaining to the years 1999-2000 Bk. (Exh. P.A.-1), 2003-4 Bk. (Exh. P.B.) and 1961-62 (Exh. P.B.) which show Salah Muhammad in occupation of the land having occupancy eights. Similarly, the approach of the High Court that inclusion of the land under Survey Nos. 457 and 476 min in the suit negatives the appellant's claim that he has purchased the proprietary rights of the land under these survey numbers were inadvertently entered in the plaint in view of the fact that they were also entered in the impugned sale-deed and Raja Muhammad Aslam has frankly conceded that he does not own both the abovestated conclusions drawn by the High Court.
17. We have examined Muhammad Muzaffar Khan v. Muhammad Yusuj Khan (I) cited by Raja Muhammad Siddique to support his view point that the appellant, being co-sharer in the `khewat', is entitled to have a decree of pre-emption. The facts of this case are distinguishable. It in no way supports the contention of Raja Muhammad Siddique because this case only says that a person becomes co-sharer if the vendor was in exclusive possession of certain portion of the joint land and transfers his possession to the vendee; so long there is no partition between co-sharors, the vendee must be regarded as to be stepping into the shoes of transferor qua his ownership rights in the joint property to the extent of the area purchased by him provided that the area in question does not exceed the share which the transferor owns in the whole property. It has been further said that alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till partition by metes and bounds takes place between the co-sharers. It is in these circumstances that it was held that the vendee of specific plots acquired from a co-owner in an undivided 'khata' becomes a co-sharer in the 'khata'. But here in this case the position is altogether different. How the appellant can be said as entitled to claim partition of the suit land transferred? He has only purchased the occupancy rights of the suit land while the respondents (vendees) had purchased the proprietary rights. Even otherwise there is nothing on the record to show that the appellant is entitled to have any land out of the suit land. This issue had finally been clinched by a case of this Court reported as Abdul Rehman v. Muhammad Afsar Khan (2) in which it has been said "In order to determine who is a co-sharer, the interpretation placed on this word by the Courts in Pakistan thus can provide a useful guide. The word 'co-sharer' clearly signifies that there are other persons as well who have a right in the property. Where, therefore, the land sold is the sole property of the vendor in which the plaintiff has no share whatsoever, the mere fact that he is an owner of land in another part of the same estate but not joint in the property under sale, does not make him a 'co-sharer' in the said land so as to confer on him the right of pre-emption."
18. The terms `khata' and 'khewat' are generally misunderstood. Clause 10 of section 4 of West Pakistan Land Revenue Act defines the 'holding' to mean the share or portion of an estate by one land owner or jointly by two or more land-owners. The vernacular equivalent of the term 'holding' is 'khewat' and the tenant's holding is called 'kbatooni' or `khata'. Sometimes the word `khata' is loosely applied to an owner's holding as well as tenant's holding. Tenant's holding is technically called 'tenancy'. {{FOOT NOTE}}
(1) PLD 1959 SC 9 (2) PLD 1978 SC (A K) 156 {{FOOT NOTE}}
19. 'Khewat', is equivalent to English word 'holding' and holding undo West Pakistan Land Revenue Act means a share or portion of an estate he by one owner or jointly by two or more land-owners and the `Khewat' numbe is the number of the owner's holding as has been said by Col. Buck and Agarwal at page 9 of their book "The Mutation Work in the Punjab". Raja Afzal Khan at page 8 of his land revenue book has described `khewat' as equivalent to the english word 'holding'. Tenant's holding is technically called tenancy or lhatooni'. On becoming proprietors, probably in the year 1962, under section 25 of the Land Reforms Act the vendors became owners of the land in their right. Their holdings was not afterwards jointly owned by the appellant who still, it appears, continues to only enjoy the occupancy rights of the land sold to him during the Dogra Regime with his former landlord. The land purchased by the vendees and the land sold to the appellant became new holdings which fact is clearly borne out from the revenue record prepared during the year 1961. This record of rights raises statutory presumption in favour of vendors that their holding ceased to be joint at least with that of the appellant who on the record will still be considered to be only enjoying the occupancy rights of the land sold to him. If the pre-emptor's holding became a new and separate holding; in that case he would also lose status of joint interests with other laud.
The claim made K by the appellant to the effect that for his possessing occupancy rights o same survey numbers in the same `khewat' he be deemed to be a co-sharer in the land in dispute cannot thus be accepted. Therefore, `khewat' only applies to the owner's holding while tenant's holding, which is technically called 'tenancy', in our view, is called `khata' or `khatoone. The record o rights pertaining to the years 1961-62 gives `khewat' No, 19/19 to all the survey numbers. However, Survey Nos. 457 and 476 min. Come under `khata' No, 235/231 while the impugned survey numbers are reflected under `khata' Nos. 231/227, 232/228, 233/229 and 234/230. Obviously Salah Muhammad, appellant, has nothing in common as occupancy tenant with other survey numbers which are reflected under different 'khata' numbers. Naturally, he would be considered as stranger to the survey numbers reflected under different `khata' numbers referred to above.
20. The net result of the whole discussion is that :-
(I) the appellant had only purchased the occupancy rights of land under Survey Nos. 457 and 476 min; he cannot be considered a co-sharer with the proprietors (respondents) who purchased proprietary rights of land under different survey numbers and `khatas';
(II) even otherwise the appellant is not a co-sharer in the field numbers purchased by the respondents ; and
(iii) the other sale-deed (Exh. P.B.-2), which had purchased some land for the appellant, also fails to give any prior right to the appellant t purchase the suit land. The land in that sale-deed has nothing common or to say in other words had no mutuality with the land sol to the respondents (vendees).
' For the view we have taken in the matter this appeal fails. No orders as to costs.