' M. S. H. QURAISHI, J.-This petition arises from a suit brought by Jafar Khan, predecessor-in-interest of the petitioner to pre-empt the sale of land comprised in Khasra No, 19 in village Shah Muhammad, Tehsil Haripur, District Abbottabad, on the basis of his claim to superior right by contiguity with Khasras Nos. 20 and 21 owned by him. The claim was denied by the defendant/vendor (predecessor-in-interest of the respondents) upon the assertion of equal right on the basis of (1) exchange of land by an unregistered document dated 4-3-1964 and (2) a Civil Court's decree dated 16-9-1967. The trial Court found that the plaintiff did not have a superior right and accordingly dismissed the suit. The first appellate Court, however, found that the exchange document dated 4-3-1964 and its entry of mutation dated 27-5-1968 had not been produced by the defendant in evidence and that the decree dated 16-9-1967 being collusive and having been obtained during the pendency of the suit, could not improve the defendant case and as such no title bad passed to him. The appellate Court therefore, decreed the suit. In the second appeal preferred by the predecessor-in-interest of the respondents, both parties moved applications for producing additional evidence, the petitioners for showing that the aforesaid decree dated 16-9- 1967 had since been set aside in appeal on 30-10-1980 and the respondents for showing that they were also owners of land contiguous to the suit land. The High Court instead, summoned the patwari concerned with the revenue record and aks shafra kistwar and on a perusal of the same and the evidence of the pat wari recorded before it, found that the adjoining Khasras Nos. 17 and 18 were recorded as "gha mumkin kathi" and in the ownership of "mahazi malikan" which included both parties. [he High Court, therefore, relying on Syed Alam v. Rabia Gul (1) held that the pre- emptor could not claim superior right against the defendant/vendee and accordingly again dismissed the suit by the impugned judgment dated 21-6-1983.
2. In the case of Syed Alam, relied upon by the High Court, the plaintiff, who had claimed superior right on the basis inter alia, of contiguity, was non-suited on account of the fact that the defendant was a co-sharer in a lakhti which irrigated the suit land. The contention that the defendant could not claim equal right because his share in the lakhti was only 2/480 was repelled for the reason that so long as the property is not partitioned, co-owner is an owner in every inch of the estate and that there is no known principle of law which lays down that unless the co-owner owned so much share therein, he could not claim to be a co-owner. A right based on co-ownership of a {{FOOT NOTE}} (1)1981 SCMR 59 {{FOOT NOTE}} ' contiguous water channel was also recognized in Ahmad Khan v. Sattar Din (1) where such right had been claimed by the plaintiff. It was observed "In the first place, it seems to us that the learned Judge in the High Court was clearly in error in holding that the co-ownership of the plaintiff in the water channel bearing Khasra No, 108 did not make him the owner of land contiguous to Khasra No,
110. It is an admitted position that the water channel adjoins Khasra No, 107 as well as Khasra No, 110, and it belongs to `mahazi malikan in other words, owners of all the Khasra numbers abutting on this water channel would be co-sharers in the same. Their shares might correspond to the frontage of their land abutting on the channel, but this does not mean that they are not to be regarded as co-sharers of the water channel as a whole."
It is, therefore, clear that the defendant being one of the `rnahazi malikan" alongwith the plaintiff, of the adjoining katha i,e,, water channel, can defeat the plaintiff on the question of contiguity. No exception can, therefore, be taken to the decision of the High Court in this regard. .
3. Learned counsel, however, questioned the propriety and legality of the High Court's recording additional evidence and deciding the matter on such evidence. But we find that no objection had been taken before the High Court to the same. On the other hand, the patwari who had appeared before the High Court was duly cross-examined by the petitioners' counsel. The objection, therefore, cannot be permitted to be raised now.
4. We thus find no merit in this petition which is dismissed. {{FOOT NOTE}}
(1) PLD 1981 SC 148 {{FOOT NOTE}}