1. ' The dispute between the parties in this revision application relates to land measuring 5 Kanals situate in village Garori Char Khel. Safoor Shah was its owner. He sold the suit land to respondents Nos. 1 to 4 herein for an ostensible consideration of Rs, 3,000 through registered sale-deed, dated 25-k-1976. This sale was challenged by the petitioner herein through pre-emption suit. He alleged that Khan Malook respondent No, 5 herein, father of respondents Nos. I to 4, purchased the suit land in the names of his said sons in order to defeat his right of pre-emption. The respondents resisted the suit and the plea taken by them was that they have purchased the suit land for residential purposes, therefore, they are exempt from pre-emption under section of.(c) of the Pre-emption Act. Upon the pleadings of the parties, the learned trial Judge framed various issues and after recording their evidence thereupon he decreed the suit in favour of the petitioner herein, vide his judgment dated,28-4-1979 by which the respondents were aggrieved, therefore, they filed an appeal in the District Court. The appeal was heard by a learned Additional District Judge who set aside the judgment of the learned trial Judge and allowing the appeal dismissed the suit of the petitioner herein, vide his judgment dated 13-6-1979. Hence this revision application.
2. ' I have heard the learned counsel for the parties, gone through the evidence on record and perused the rival judgments of the two Courts below. The learned trial Judge that the respondents are the residents of village Biland Kale and as the suit land is situate in village Garori Char Khel, they cannot claim exemption from pre-emption and as otherwise he found the petitioner in possession of superior right of pre-emption, he decreed the suit in his favour. In appeal, the learned Additional District Judge pointed out that respondent Khan Malook has two wives. He owned two houses, one in village Garori Char Khel and the other in village Biland Kala and that one wife is living in the house at village Garori Char Khel and the other in the house at Biland Kala. He also pointed out that respondent Khan Malook has got children from his two wives and two of his sons are married. In the opinion of the learned Additional District Judge, the suit land was purchased for residential purposes by the respondeczs. On my part I have given careful consideration to the question whether the respondents have, as a matter of fact, purchased the suit land for the purpose of constructing houses thereupon. I have come to the conclusion that the learned Additional District Judge has rightly answered this question in the affirmative. I do not see any reason to interfere with his impugned finding in this behalf. The suit land is one compact parcel of land. It measure S Kanals and as it has been purchased by the four respondents/brothers, every brother will, therefore, get the share of one Kanal and 5 Merles. According to the pre-emption law, each one of them is entitled to purchase the land to that extent for the purpose of constructing house thereupon for self-residence and no pre-emption suit would lie against any one of them.
3. The learned counsel for the petitioner, however contended that respondents Nos. 1 to 4 are not the residents of village Garori Char Khel. He referred in this behalf to the impugned sale-deed (Exh. P.
4. W. 1/4) to show that the respondents have been mentioned in the sale-deed as residents of village Biland Kala. The learned counsel, therefore, urged that as the respondents Nos. 1 and 4 are not the residents of village Gorari Char Khel, they cannot claim exemption from pre-emption with respect to the suit land. According to him, the suit land was purchased by the father of respondents Nos. l to 4 for his own benefit and in the impugned sale-deed, he showed the names' of his sons/respondents Nos. 1 to 4 as Bainami. This he was also raised before the learned Additional District Judge but he repelled it. The learned Additional District Judge referred in this behalf to an authority reported in PLD 1974 Pesh. 63 in which it is held that non-resident is also entitled to exemption with respect to the land purchased by him for the purpose of residence. I observe that even if it can be said that this authority has not laid down a good law in a case of this nature. Yet I am satisfied that respondents Nos. 1 and 4 are residing in village Gorari Char Khel. A reference in this behalf may be made to the plaint in which the petitioner has given village Garori Char Kbel as the addresses of respondents Nos. 1 to 4, therefore, as according to the petitioner, respondents Nos.
5. 1 to 4 are residing in village Garori Char Khel, the petitioner gave their addresses in the plaint of that village. Even otherwise,. Respondents Nos. 1 to 4 can be said to have purchased the suit land for residential purposes. It is not denied that the father of respondents Nos. 1 to 4 is residing in village Garori Char Khel. There should, therefore, be no question against the respondents that they in the right of their father will naturally be interested in taking up their permanent abodes in village Garori Char Khel. The learned counsel for the petitioner next contended that the suit land is situate in the same Khata in which his client is co-sharer and according to him, the suit land cannot be purchased for the purpose of construction of houses without the permission of other co-sharers in the same Khata. In support of his contention, he referred to an authority reported in the case of Habibur Rehman and another v. Faqir Muhammad (I). With respect, the learned counsel seems to have misconceived the ratio of that authority which speaks of co-shareship in the joint land and it is not relevant to the present case in which the petitioner is co-sharer in the same Khatha in which the suit land is situate. Apparently, the learned counsel has equated or confused co-shareship in the joint land with the co-shareship in the same Khata. What has been laid in the above authority is that without .The consent of co-sharers, a stranger cannot purchase from any co-sharer any portion in the joint land for the construction of house. In the joint property, it is a settled law that every co-sharer is deemed owner of every inch and unless the joint property is partitioned, no co- sharer can lay claim of exclusive ownership to any portion of the joint land, therefore, should a stranger purchase a specific portion in the joint land from a co-sharer without the consent of other co-sharers, he will not be entitled to raise structures upon the said specific portion, as legally all co-sharers are owners of the said portion. But this difficulty does not exist in the case of co- sharership in the same Khata in which every owner owns land independently and to t exclusion of none. In view of this, there will, therefore, be no embargo upto a vendee to purchase land in the said Khata with the permission of on the co-sharers in the said Khata. This is because owners in the same Kba own land individually to the exclusion of none, therefore, an owner in t same Khata cannot claim co-shareship in the land sold by its owner learned counsel lastly contended that as the suit land is agricultural land, according to gm, it that not been purchased for the purpose of construction of houses. I do not see any substance in this contention. I observe that in order to combat over-population in this age, it is common trend in the {{FOOT NOTE}}
(1) P I. D 1983 Pala. 197 {{FOOT NOTE}} society to build houses in the agricultural lands and now villages, towns and colonies etc. Built in the agricultural land have emerged. The suit land is in the vicinity of Garori Char Khel, therefore, it is obvious that it is fit for construction, the more so as nothing to the contrary was placed on the record on behalf of the petitioner that it is not fit for residential purposes.
6. ' No other point was urged and as I do not see any force in this revision application, it is dismissed with no order as to costs.