' This appeal is directed against the Judgment and decree of Senior Civil Judge, Shandadpur, dated 31-3-1977 by which the pre-emption suit filed by the respondents was decreed and the appellants Nos. 2 to 4 were directed to execute sale-deed of the disputed land in favour of the respondents. This matter had come before me earlier and it was argued at length by Mr. Mateen, Advocate for the appellants and Mr. Ismail Merchant, Advocate for the respondents and since the pre-emption suit of the respondents had been decreed on the basis that the plaintiff was Shafi-e- jar in respect of the suit land inasmuch as the land of the plaintiff was contiguous to the disputed land which had been sold by the respondent No. 2 to the appellants in spite of the fact that there was a watercourse inbetween the two lands, the bed of which was treated as the common property of the two owners of the lands on both sides of the said watercourse, therefore, it was held that the land was contiguous between the respondents No. 2 and 1. I had come to the conclusion after hearing of the arguments of the parties that there was no evidence on the record in respect of the ownership of the watercourse on the basis of which it could be held that the bed of the watercourse was common property and that the Civil Judge had drawn inference in respect of the ownership of the watercourse being joint between the respondents Nos. 1 and 2.
2. I had, therefore, remanded the case to the trial Court for determination of the ownership of ,the watercourse and its bed and its effect on the right of vicinage (Shafi-e-jar).
3. The evidence was recorded by the learned Civil Judge and he had given his findings to the effect that the bed of the watercourse belonged to the Government.
4. Mr. Ismail Merchant, learned counsel for the respondents has submitted that the Civil Judge was quite wrong in that finding and that there is no real basis for the said finding inasmuch as the Government record was not before him. However, I find that the finding of the Civil Judge in this respect is based on the statement of Rahmatullah and Gul Muhammad supported by the documents. Rahmatullah was Canal Assistant of Khadro Sub-Division and he stated that Watercourse No. 23/1L and its bed belonged to Government and that the bed of the watercourse was 161 feet. He further stated that the land of Blocks Nos. 18 and 20 is not included in this Watercourse No. 23/1L. He produced the sketch of the watercourse as Exs. 75 and certificate Exh. 76 issued by Assistant Engineer of Khadro Sub Division to the effect that the said watercourse and its bed belonged to the Government. In cross-examination he denied that the branches and sub- branches of Watercourse No. 23/1L are private branches. He did not know whether the certificate Exh. 77 had been given on the basis of record or without record. He denied the suggestion that there was no watercourse between the Block No. 18 and 20 but only a Nall. Gui Muhammad produced letter dated 6-10-1965 from Deputy Commissioner Sanghar as Director Settlement Survey, Hyderabad, where it was stated that no compensation is to be paid in the area which is to be acquired for watercourse, boundry strips etc. in Jamrao Canal Survey as allowance for watercourse, boundry-strips, which are to be demarcated on the requisition of the P.W.D., is given, because actual area of each block of square survey of Jamrao Canal on site is 16.8 acres whereas assessm ent is on 16.00 acres and the balance of 0.8 acres has been left as allowance for watercourse etc. On the other hand Muhammad Jafar, respondent stated that Nali which irrigates his land and the land in suit is private Nali which is 4 feet wide. He did not make any specific statement that the said Nali or watercourse has been dug out from his land. And he made a wrong statement in respect of the width of the Nali because Rehmatullah had definitely stated that it was 16.00 feet wide. He denied the suggestion in cross-examination that the branches in watercourse are Government property. The respondent Jafar did not summon any record from any department nor he summoned any person to prove that the watercourse in question was a private property. He did obtain an answer from Rehmatullah that Rehmatullah did not know whether the certificate Exh.
76 issued by Assistant Engineer was issued on the basis of record or not but Rehmatullah had stated clearly that the said certificate had been signed by Assistant Engineer. In the presence of that certificate it was necessary for the respondent Jafar to prove positively either through the oral evidence of the Zamindars, who were getting share from the said watercourse, that it was their common property or he should have summoned the Government records by which he could establish that it was the private property of owners and not a Government property. But he failed to do so.
5. Therefore, the net result which is available is that the bed of watercourse in question has been found to be Government property. The suit of the plaintiff for pre-emption had been decreed on the basis of the inference that the said bed of watercourse belonged half and half to the owners of the land on both sides of the watercourse and hence their lands were contiguous to each other and they are Shafi-e-Jar of each other. But the finding in respect of the present watercourse is that it belongs to the Government and the respondent Jafar had done precious little to prove that it was a private watercourse. The finding is that the watercourse was Government property. The contiguity between the land of the respondent No. 1 and respondent No. 2 is, therefore, lost and hence the right of vicinage or Shafi-e-Jar is also lost and hence the basis of the decree evaporated in thin air.
6. The right of pre-emption being ex-proprietary right, the smell has to be construed in a strict manner.
7. There was no other basis of decree of pre-emption except that the bed course of the watercourse between the two lands being the property of the owners on both sides of the land the same was common property and hence lands of both sides were treated as contiguous. But that basis is now lost.
8. 1 am surprised as to why the respondent Jafar could not substantiate his claim if he had any basis in respect of the bed of the watercourse being joint property. He did not even claim that the watercourse had been dug with his consent and without any compensation for the land having been given to him.
9. Mr. Merchant wanted to rely upon PLD 1972 Kar. 128, where it was held that no property could be acquired without compensation. The principle is correct and, therefore, if no compensation is paid, the property should be treated as the property of the owner. But in this case there is hardly any evidence in respect of ownership of the watercourse adduced on behalf of Muhammad Jafar and, therefore, it is difficult for me to discard the evidence produced on behalf of the appellant and particularly the certificate Exh.
76. If the respondent Jafar had considered that certificate Exh. 76 is not supported by any records, it was open to him to summon the relevant records from the Canal Authorities but his failure to have done so suggests that he did not seriously challenge the contents of Exh.
76.
10. In these circumstances the decree of pre-emption based on the right of vicinage which was inferred by the learned Civil Judge, appears to be unjustified in view of the additional evidence recorded by the Civil Judge. Consequently this appeal is allowed without any order as to cost.
' I may note here that Mr. Merchant had made an application under Order XLI, rule 11, C.P.C. for summoning the Assistant Engineer, Khadro Sub-Division, to bring the record regarding acquisition of land of the watercourse in question. However, I do not see any justification for this application today before me because the respondent No. 1 had failed to produce his evidence before the Civil Judge. My order of remand was a detailed order and, therefore Jafar knew as to what he had to do in the matter and in spite of the fact that the certificate Exh. 76 had been produced by Rehmatullah before the examination of Muhammad Jafar, Jafar never took any steps to meet the mischief of that certificate. This application is, .therefore, rejected. Result is that appeal stands allowed and decree of pre-emption is set aside. Sale consideration if deposited by the respondent No. 1, may be returned to him.