1. ' This is a second appeal under section 100, Cr.P.C. Which has arisen in the circumstances briefly narrated as follows. The agricultural land comprising S. Nos. 423, 426 and 427 in deh: Butt Serai taluka Mehar which was an evacuee property was transferred to M. Mian Jan, respondent No,2. The said land is contiguous to the land belonging to appellant Munawar All in the same deh. As soon as the appellant learnt that the respondent No,2 was contemplating to sell the land to the respondent No,1 and they had even entered into agreement of sale through good offices of respondent No,3, he lost no time in serving a notice on the respondent No,2 expressing his intention to buy the said land in exercise of his right of pre-emption. In reply to the notice the respondent No,2 intimated the appellant that the sale of the land had already been finalized. On receipt of such information the appellant hastened to make the requisite Talabs in accordance with the Muslim Law. However such moves on his part went unheeded by the respondents. The appellant therefore brought a suit No,7 of 1965 in the Court of Civil Judge Mehar. As many as nine issues were framed by the trial Court but by judgment, dated 31st October, 1968, the suit was dismissed. The appellant went in Appeal No,4/1969 against the judgment and decree of the trial Court. While deciding Issue No,2 with regard to the making of the Talabs in favour of the appellant 'the first appellate Court remanded the case to the civil Court for a decision afresh on the issues Nos. 2, 3, 6 and 9. The suit was once again dismissed by the trial Court vide its judgment, dated 12th December,1973 on the basis of the findings of the above said issues which were decided in the negative. Being aggrieved by the dismissal of the suit the appellant preferred Appeal No, 3/74 which was also dismissed by judgment, dated 30th June,1976, though the Issue No, 2 with regard to contiguity between the disputed land and the land of the appellant was found in favour of the latter. The said judgment has been impugned in the second appeal.
2. ' The learned counsel for the parties were heard at great length and reference was also made to the relevant documents available on record. Subsection (3) of section 231 of Principles of Mahomedan Law by Mulla (Edition 1977) reads as under: ' The following 3 classes of persons and no others are entitled to claim pre-emption, namely: (1 ............................
3. (2)
(3) Owners of adjoining immovable property (Shafi-i-Jar), but not their tenants, nor persons in possession of such property without any lawful title. A wakif or Mutawalli is not entitled to pre-empt, as the Waqf property does not vest in him."
4. ' It is claimed on behalf of the appellant that he is Shafi-i-Jar in respect of the disputed land, as his land is contiguous to the said land within the meaning of above provisions of law. In this connection the findings arrived at by the learned first appellate Court in its judgment dated 30th June, 1975 are as under:- "I have passed an order on the application of the appellant under Order XLI, rule 27, C.P.C. Whereby I have admitted the map of deh: Butt Serai duly corrected up to 13th February 1974 in evidence for the reasons recorded therein and I do not wish to repeat them in this judgment. This map clearly shows that the land of the plaintiff viz: S. Nos. 424, 425 and 428 are adjacent to the suit land. This map confirms the same position which is shown in the deh map Exh.77 to which the lower Court attached little value. In my view the lower Court was quite wrong to have held that the document was of no help to the appellant I have however also relied on the new map admitted by me for my view that the land of the plaintiff is contiguous to the suit land. Admittedly I upset the findings of the lower Court on this issue No,2 and hold accordingly."
5. ' It is clear that the first appellate Court has come to the conclusion that the land in dispute is contiguous to the land owned by the appellant. This finding, it would appear, has gone unchallenged as neither the respondent has filed any separate appeal nor has he made any cross-objections in the present appeal calling in question the correctness of the above finding.
6. Accordingly there is no doubt that the appellant possesses right of pre-emption in respect of the suit land.
7. ' The next question that arises for determination is whether the appellant has made valid exercise of the right vested in him. In other words whether he has made the requisite Talabs as prescribed by the Mahomdan Law. On this point the learned counsel for the appellant made reference to the earlier judgment of the first appellate Court dated 13th December, 1972 wherein, after due appraisal of the evidence led on issue No,4, the said Court has come to the following conclusion: "In my opinion the Talabs were made by the appellant in accordance with law and I find no default or defect in making these Talabs. .' He has complied with the requirements of law in this behalf. I am therefore of the view that finding of the trial Judge on this issue is incorrect. There is neither any delay in making it nor the Talabs suffer from any legal defect. I therefore set aside the findings of the trial Judge and decide this issue in favour of the appellant."
8. ' Despite the above findings on Issue No,4, the learned First Appellate Court remanded the case to the trial Court with a direction to decide the Issues Nos. 2, 3, 6 and 9 afresh. It would be noticed that the respondent took no step to challenge the findings of the learned First Appellate Court as regards the validity of the Talabs or the delay in making such Talabs. Thus, the findings on Issue No,4 that the appellant made the required Talabs in accordance with law without any delay remained unchallenged.
9. ' However the learned counsel for the respondent pointed out that the observations made by the learned First Appellate Court in its later judgment (the impugned judgment) are clearly inconsistent with its findings in its earlier judgment. In the impugned judgment the learned First Appellate Court has made the following observations : "The sale-deed was registered on 10th March, 1965 and it is incredible that the change did not come to his notice prior to 2nd June, 1965. In my view it can be safely presumed that he had full knowledge of the transaction from the date the possession changed hands. On this ground also the appellant would not be entitled to the right of pre-emption, in spite of the fact that my learned predecessor had held that the appellant had made valid demands. He had not however considered the element of delay which is also an essential requirement of the pre-emption."
10. It is obvious that the above observations are not in consonance with the observations of the same Court in its earlier judgment wherein, as has been pointed out above not only the Talabs are held to have been made in accordance with the law but also they are held to have been made without any delay. These findings of the First Appellate Court which have gone unchallenged cannot be reversed or in any way modified by the same Court presided by an other Judge. The latter cannot be permitted to sit in judgment over the decision of his predecessor and reopen the issue which has already been clinched. Therefore I am in full agreement with the argument of the learned counsel for the appellant that the observations of the First Appellate Court made in the impugned judgment on the point of delay in making the Talabs are of no legal consequence and can be safely ignored.
11. ' It was next contended by the learned counsel for the respondent that the right of pre-emption does not extend to agricultural land. In support of his argument, he has placed reliance on Azad Khan v. Abdul Latif and others PLD 1971 Azad J & K 49 wherein it was held: "The learned District Judge on appeal rightly held that contiguity was a ground for pre-emption in case of urban immovable property but not in a case of agricultural land."
12. ' In view of the above authority the learned First Appellate Court accepted the argument that contiguity is no ground for exercising right of pre-emption in case of agricultural land. It may be observed, with due respect, that it has not been elaborated in the above reported case as to why in the case of agricultural land contiguity is not considered for exercising right of pre-emption. The only exception to which the right of pre-emption is subjected is reproduced as under: "The right of pre-emption on the third ground, viz., that of vicinage does not extend to estates of large magnitude, such as villages and zamindaris, but is confined to houses, gardens and small parcels of land (d). The right, however, may be claimed by a co-sharer (e) "vide page 234, Mahomedan Law by Mulla (Pakistan Edition by Dr. M. A. Mannan).
13. According to the above exception estates of large magnitude such as villages and zamindaris are not subjected to the right of pre-emption. However in the same Exception it has been clarified that right of preemption does extend to houses, gardens and small parcels of land. The point to be determined in the instant case is whether the land in question falls within the category of gardens or small parcels of land. It appears that in the above case of Azad Jamu and Kashmir the finding that contiguity is a ground for right of pre-emption in case of Urban immovable property seems to emanate from the thinking that "Small parcels of land" used in the aforesaid Exception relate to small parcels of only urban land. In my opinion to put such construction on the plain wording of the Exception would tantamount to straining the language used in the Exception. There appears no justification to exclude agricultural land from the phrase "parcels of land" used in the Exception which obviously has universal application to all kinds of land, urban as well as agricultural land. In support of the above view, reference may be made to the case of Abdul Qayoom v. Muhammad Aslam PLD 1979 SC 867. The view taken in this case was that if a block of land comprising different Khasra numbers is sold, it is not necessary that pre-emptor should have his property contiguous to all Khasra numbers but contiguity of his property to any part of the block or parcel of the land would entitle him to pre-empt the entire land comprised in the said Khasra numbers.
14. ' It would be noticed that the appellant's case is on better footing as all the disputed S.Nos. Are contiguous to the land of the pre-emptor. Moreover on the basis of the above authority the learned counsel for the appellant has rightly argued that the view taken in the above case of Azad Jamu & Kashmir that contiguity is no ground for exercising right of pre-emption in respect of agricultural land is not correct. Obviously, the Supreme Court has not distinguished agricultural land from urban land so as to exclude the former land for the purpose of exercising right of pre-emption.
15. ' The next case which has been referred in the same context is of S.Haji Imam Bux Shah and others v. Mir Muhammad All Khan and Haji Ali Murad Khan AIR 1946 Sind 55 wherein it was held: "I do not think that it was ever intended that pre-emption on the ground of vicinage should be vested in neighbouring zamindars, large holders of agricultural lands, merely because at one place or another one survey number of agricultural land should adjoin another survey number of agricultural land belonging to a neighbouring zamindar."
16. ' Of course even in the above reported case the ground of vicinage has not been held as sufficient ground for asserting right of pre-emption by neighbouring zamindars or large holders of agricultural land. In the said case the claim of pre-emption involved 14 S.Nos. Comprising an area of 85 acres of agricultural land. In the instant case the area for which the right of pre-emption is claimed does not exceed ten acres. Moreover the disputed area is divided in three small pieces of land, each touching the land of the pre-emptor separately. Even otherwise as pointed out above the view taken by the Supreme Court in the case of Abdul Qayoom does not approve of the total exclusion of agricultural land from purview of the right of pre-emption on the ground of contiguity.
17. Such a view is also not in accord with the Exception to which the right of pre-emption is subject. All that has been laid down in the Exception is that in the case of agricultural land right of pre-emption is exerciseable only to the extent of gardens and small parcels of land. In the instant case each of three survey numbers is obviously a small parcel of land adjoining to the land of the pre-emptor.
18. Accordingly I am of the view that appellant will be within his right to claim the disputed S.Nos. By exercising right of pre-emption. In this connection I am fortified by the authority reported as Mahmood Hassan Khan v. Bhikhari Lal and others AIR 1953 All. 705 wherein it was held: "Four Bighas and 5 Biswa s area is not so big as to be taken out of the category of cases in respect of which the right of pre-emption on the ground of vicinage extends. In our opinion the plaintiff is entitled to pre-empt."
19. The upshot of the above discussion is that the appellant has proved that the land in dispute is adjoining to his land and that as soon as he came to know about the sale of the disputed land by respondent No,2 to respondent No,1, he without, any loss of time, asserted his right of pre-emption by offering to buy the disputed land not only in the notice served by him on the respondent No,2 but also in presence of the witnesses and in presence of the vendor himself. Furthermore the area which he claims by way of right of pre-emption is not so big as to be excluded from the category of the property in respect of which the right of pre-emption can be exercised. Consequently the appeal is accepted with no order as to costs.