' M. S. H. QURAISHI, J.-The petitioner pre-empted the sale of land constituting two blocks, one comprising Khasra Nos. 1193 and 1202 in Khata No, 317/843, Khasra Nos. 1194 and 1195 in Khata No, 372/934 and Khasra No, 1206 in Khata Nos. 469/1114 and the other comprising Khasra Nos. 1452, 1499 and 1500/1 in Khata Nos. 318/844 and 845. His claim to superior right of pre-emption was based on co-sharership, contiguity and having a right of easement over to suit land. In respect of the first block, the trial Court found that none of the parties was a co-sharer, that the plaintiff's case was based on contiguity with Khasra No, 1190 in which he was co-sharer but that the contiguous Khasra Nos. 1192, 1406 and 118 which were shamilat property recorded as ghair mwnkin khata were owned by the proprietary body of the village and as such the defendant, too, had a share in It. The dependant therefore, was held to have an equal right and as such the plaintiff's claim to a superior right of pre-emption was rejected in regard to the block. As regards the other block comprising Khasra Nos. 1452, 1499 and 1500/1, the plaintiff was found to be a co-sharer in that block and as the defendant did not have such status, the suit was decreed only to the extent of this latter block. The plaintiff/petitioner appealed but the same was dismissed by the District Judge, whereupon he moved a revision petition before the Peshawar High Court but the same, too, was dismissed by the impugn order dated 30-7-1983. The learned Judge observed that the contiguous Khasra Nos. 1406 and 1189 which were shamilat deh were entered as ghair mumkin khata and in the column of cultivation were shown as "maqbuza malikan" without any restriction of ownership by mahazi malikiyyat which, in the view of the learned Judge, meant that all the co-sharers of the shamilat were owners in possession of the said Khasra numbers and relying on Syed Ali v. Rabia Gul held1 that ownership of the vendee in ghair mumkin khata contiguous to the suit land would non-suit the plaintiff. Aggrieved, the petitioner has moved this petition for leave to appeal.
2. Learned counsel for the petitioner has questioned the correctness of the proposition that co- ownership in shamilat recorded as ghair mumkin khata, which means a natural water channel, can be considered to be co-owner-ship of contiguous property. A distinction had, no doubt, been made by Peshawar High Court in respect of shamilat which was entered as ghair mumkin rasta in Mughal Baz Khan v. Sher Afzal Khan and it had been held that a co-sharer of such shamilat could not defeat the superior right of the pre-emptor based on contiguity because the co-sharer in a thorough fare cannot claim himself to be owner of the property as he has no more right in the thoroughfare than any other person even if that other person be an owner in the shamilat of the village or the thoroughfare. This view had been approved by this Court in 1980 SCMR 692.
However, in the instant case, the entry in the column of cultivation is maqbuza malikana without any restriction by the mahazi malikiyyat. There is nothing to show that the ghair mumkin khata' was not capable of being exclusively possessed by the proprietors. That being so, the view taken in Mughal Baz Khan's case has no applicability here. A pre-emptor having right as a co-owner in a contiguous water channel, can succeed, see Ahmad Khan v. Sattar Din . Similarly a defendant possessed of such right can defeat the pre-emptor.
3. No ground is thus made out for grant of leave. The petition is dismissed. 1981 SCMR 59 PLD 1977 Pesh. 19 PLD 1981 SC 148