1. ' The suit land comprised in Khata Nos. 1182 and 1173 was purchased by the petitioners herein through registered sale-deed dated 14-4-1971. This transaction was pre-empted through two rival suits and the plea taken by the pre-emptors (respondents herein) was the same, namely, they are co-sharers in the suit Khatas, participators in immunities and appendages and own land contiguous to the suit land. The petitioners resisted both the suits and the stand taken by them in support of their case was twofold, namely, (1) they became co-sharers in the suit Khatas on the basis of exchange, (2) they also purchased Abadi and Machinery and as the said transaction was not pre-empted, the suits of the pre-emptors were hit by the principle of partial pre-emption. Upon the pleadings of the parties, the learned trial Judge framed various issues and recorded their evidence thereupon. Preferring the evidence of pre-emptors, he granted decree to one set of pre- emptors for 34 Kanals 4 Marlas on the ground of co-ownership in suit Khata No, 1182 and the other rival set of pre-emptors was granted decree for R4 Kanals 13 Marlas on the ground of contiguity in suit Khata No, 1173, vide his judgment dated 4-6-1981. The petitioners filed appeal in the District Court and a learned Additional District Judge who heard the appeal concurred in the findings of the learned trial Judge and dismissed the appeal, vide his judgment dated 15-10-1983. Hence this revision application.
2. ' I have heard the learned counsel for the parties and perused the record. Learned counsel for the petitioners has raised three-fold contention :-
(1) that his clients became co-sharers in the suit land on the basis of exchange deed duly registered and the two Courts below were wrong to disbelieve the said deed, (2) that the two Courts below overlooked that according to the revenue record, Khasra No, 8604/3702 or_ the basis of which the respondents claimed co-ownership and contiguity qua the suit land is thoroughfare and even if it is Shamilat Deh, yet legally the respondenents cannot claim the right of pre-emption to the suit lznd. In support of this contention, he relied upon an authority reported in P L I) 1976 Pesh.
3. 19 ; (3) that alongwith the suit property his clients had also purchased Abadi and Machinery but as the said piece of property was not pre-empted, the suits of the pre-emptors were hit by the principles of partial pre-emption.
4. As regards the first contention of the learned counsel for the petitioners, the same was also raised before me in the connected revision application bearing No, 374/84 but was repelled, vide my judgment of today to date in that case. It was held with reference to the evidence on record that the attorney of the owner of the suit land was authorised by the latter to sell the suit land and not acquire any land in exchange thereof. The evidence on record also revealed that the attorney had applied to the Chief Martial Law Administrator for permission of the sale of the suit land. Thus, the so-called exchange was just a misnomer while in fact, the exchange deed was a sale-deed and was given the colour of exchange to frustrate the pre-emptive rights of the pre-emptors.
5. As regards the second contention, the learned counsel for the petitioners seems to have not appreciated the ratio of the authority laid down by the Hon'ble Judges of this Court in its proper legal perspective. A bare reading of the said authority will show that if a property is a thoroughfares' for the use of the general public to the exclusion of none, the pre-emptors cannot be allowed to lay claim of pre-emption to the suit land on the basis of the thoroughfare even if it is Shamilat Deh in which the pre-emptor is co-sharer and is contiguous to the suit land. The position in the .Present case is, however, discernible. According to the revenue record Khasra No, 8604/3702 is Ghair Mumkin Rasta. It is conceded that Ghair Mumkin Rasta is not a thoroughfare for the use of general public. A co-sharer in the same can convert it into use to his benefit and nobody can prevent him in this behalf. Thus as Khasra No, 8604/3702 is Ghair Mumkin Rusta in which the pre- emptors are admittedly co-sharers and as there can be no legal embargo against them to utilize it, their right of pre-emption is, therefore, established qua the suit land.
6. As regards the last contention, it has also been answered in negative in my judgment in the above-connected revision application. The learned Additional District Judge has rightly observed in this behalf that there is nothing on the record to show that the petitioners have purchased Abadir and Machinery by means of a separate deed and no suit was brought by the pre-emptors in that behalf.
7. ' No other point was urged before me by the learned counsel for the petitioners and as I find no error of law in the impugned judgments of the two Courts below, this revision application is dismissed with no order as to costs.
8. Revision .