' An oral sale of a land measuring 14 Kanals 6 Marlas situate in Khasra Nos. 41, 119, 121 and 125 in village Bharkund Otal, District Mansehra made in favour of Jahandad petitioner for an ostensible price of Rs. 10,000 vide Mutation No. 2794 dated 27-9-1965 was pre-empted by Muhammad Aslam respondent in which there were framed issues of superior right of pre-emption, bona fide fixation or actual payment of the sale price of Rs. 10,000, market value, estoppel and limitation.
2. The trial Court determined issues of superior right of pre-emption, estoppel and limitation against the pre-emptor, decided issue of payment of sale price against the vendee and determined the market value at R. 8,588.58. Since the pre-emptor had failed on the main issue of his superior right of pre-emption as such his suit was dismissed by a judgment and decree dated 13-12-1967 which was appealed against and the learned Addl. District Judge reversed the findings of the trial Court on issues of superior right of pre-emption, limitation and estoppel. But since he was not satisfied with the determination of the issue of the market value of the suit land he remanded the case to the trial Court for ascertaining the price of the suit land through a local Commis sioner and thereafter to pass a decree in favour of the plaintiff as against the defendant on payment of the price determined as such.
3. Aggrieved by the aforesaid judgment and decree, the vendee lodged an appeal in the High Court where the learned counsel for the parties recorded a statement, reproduced below: "The judgment and decree of the lower Court dated 4th May, 1968 may be maintained except that in remand the Court of the first instance shall determine besides the market value of the land also the fact whether Khasra No. 116 is in the ownership of the plaintiff pre-emptor and whether it is contiguous to Khasra No. 121."
' The appeal was disposed of by the High Court in view of the aforesaid statement of the counsel for the parties and remanded the case to the trial Court to determine the market value of the suit land further to ascertain if Khasra No. 116 was owned by the plaintiff pre-emptor and the same was also contiguous to suit Khasra No. 121.
4. After remand the learned Civil Judge, Mansehra determined the market value at Rs. 10,000, equivalent to the ostensible price. He further found Khasra No. 116 situate contiguous to Khasra No. 121 but on the other hand found the plaintiff, not the owner of Khasra -No.
116. Since because the suit Khasra numbers were comprised in one Khata and the vendee was being left as owner in Khasra No. 121 as such the Court held that the plaintiff-pre-emptor could not have a superior right of pre-emption in the circumstances. The suit was resultantly dismissed by a judgment and decree dated 31-7-1969.
5. Plaintiff preferred an appeal and on acceptance, the learned Additional District Judge by a judgment and decree dated 24-5-1971 again remanded the case to the lower Court with direction to summon the revenue record in order to ascertain if the land in dispute and the plaintiff's land were irrigated by any of the water channels and if the plaintiff was thereby a participator in immunities and appendages and also to find out afresh if the plaintiff was the owner of Khasra No. 116 and the same was contiguous to Khasra No. 121.
6. Now sorry to say, the learned Civil Judge and the learned Addl. District Judge both had proceeded on assumption that the plaintiff was to prove his superior pre-emptive right as against the whole land although earlier the learned Additional District Judge by his judgment and decree dated 4-5-1968 had determined the issue of superior pre emptive right in respect of all the four Khasra numbers in favour of the plaintiff and the High Court in view of the statement of the counsel for the parties, had also maintained the finding of the first appellate Court on the issue of superior pre-emptive right in respect of three Khasra numbers except Khasra No. 121 with regard to which the plaintiff had confined his claim to be contiguous owner on the basis of his ownership rights in Khasra No. 116 for the determination of which the case was remanded to the trial Court along the determination of the issue of market value of the suit land.
7. Anyhow after remand the learned trial Court, by his judgment and decree dated 15-2-1973, dismissed the plaintiff's suit as he had allegedly failed to be the contiguous owner of all the Khasra numbers. An appeal was preferred before the District Judge who by his judgment and decree dated 22-1-1975 again remanded the case with direction that the case be decided in the light of the observations made in the judgment of the High Court as well the directions made by the learned Additional District Judge, Abbottabad in his judgment dated 24-5-1971. The trial Court, has, however, once again dismissed the suit on 5-6-1975 holding on one hand that Khasra No. 116 was not contiguous to Khasra No. 121 and further that one suit Khasra No. 121 and Khasra No. 514 of the ownership of Jahandad vendee were irrigated by the same 'Khata' of Khasra No.
511. Plaintiff went in appeal before the District Judge who held that the trial Court had erred in treating the defendant as a participator in immunities and appendages on the ground that suit Khasra No. 121 and Khasra No. 514 of the ownership of the defendant were being irrigated from the same water channel. A reference was made to an authority published in PLD 1954 Pesh. 99 vide the right of irrigation of the lands from the same water channel was not recognized as participation in the immunities and appendages. The appellate Court also observed that all the four Khasra numbers were situated in one compact block and that since the plaintiff was the contiguous owner of three Khasra numbers, his superior pre-emptive right had therefore, extended to the 4th Khasra number forming part of the compact block. The plaintiff was further found on one of the 'Manzi Malikan' of Khasra No. 45 and 120. Khasra No. 45 was lying in betweep Khasra Nos. 125 and 119 on one hand and Khasra Nos. 43, 41 and 32 to 40 and 46 and 18 on the other hand while Khasra No. 120 of 'Mahazi Malikan' was lying in between Khasra Nos. 119 and 121. He accordingly considered Khasra Nos. 45 and 120 the water channels of 'Mahazi Malikan' as part and parcel of the suit Khasra numbers and accordingly declared the suit land to form a compact block and the plaintiff to have a superior right of pre-emption on the basis of contiguity. As a result he accepted the appeal and allowed a decree to the plaintiff on payment of Rs. 10,000, the sale price against which the present revision has been filed by the vendee defendant.
8. Unfortunately the case was not properly dealt with after the remand order of the High Court dated 1-5-1969 made in view of the statement of the learned counsel for the parties who had agreed to the maintainance of the judgment and decree of the lower Court dated 4th day of May, 1968 vide it was held that the plaintiff had a superior right of pre-emption and the case was remanded to the trial Court for ascertaining only the price of the suit land by appointment of a local commissioner. The learned counsel for the parties were not to dispute the superior pre- emptive right of the plaintiff in respect of three Khasra numbers namely, 41, 119, and 125 and only in respect of Khasra No. 121 they had asked for determination of the fact if the plaintiff was the owner of Khasra No. 116 and if the said Khasra was situate contiguous to Khasra No.
121. The parties had thus confined their case on the issue of the superior pre-emptive right in respect of Khasra No. 121 on the basis if the plaintiff was its contiguous owner on account of his ownership in Khasra No. 116.
9. It appears that the trial Court in the first instance had correctly followed the import of the remand order of the High Court by proceeding to determine that Khasra No. 116 was situate contiguous to Khasra No. 121 but that the plaintiff was not the owner of Khasra No. 116, therefore, the trial Court had erred in non-suiting the plaintiff as a whole under observation that since the suit Khasra numbers were comprised in one Khata and as the vendee was being left as owner in Khasra No. 121 hence the plaintiff could not have superior right of pre-emption on the basis of contiguity in respect of the other three Khasra numbers of the suit Khata. In appeal the learned Additional District Judge had completely forgotten the remand order of the High Court and on acceptance of the appeal he remanded the case to the trial Court with directions to ascertain from the revenue record if the plaintiff's land and the suit land were being irrigated by any of the water channels and if as such he was to have a superior pre-emptive right being a participator in immunites and appendages. Thereafter the entire proceedings in the case were thus conducted in violation of the remand order of the High Court based on compromise in view of the statement of the counsel for the parties.
10. The compromise remand order was a contract between the parties superheaded by a command of the Court and cannot be superseded except by way of suit or an application under section 1'2, (2), C.P.C. or review or by higher forum in appeal or revision on ground of unlawfulness.
Herein the plaintiff has, no doubt, claimed his right of pre-emption through co-sharership, participation in immunities and appendages and contiguity but if he was to confine his superior right of pre-emption in respect of Khasra No. 121 only on account of contiguity as being owner of Khasra No. 116 allegedly situate contiguous thereto and the defendant was also to agree that let the plaintiff prove his ownership in Khasra No. 116 and further the contiguity of said Khasra number to Khasra No. 121 and thereby to have superior right of pre-emption in respect thereof, it cannot be said that they had not entered into a lawful agreement for the adjustment of the suit/appeal in respect of the very part of the subject-matter and so their agreement in respect of other three Khasra numbers admitting the superior right of pre-emption of the plaintif with regard thereto cannot be questioned as being unlawful. Thus the proceedings to the contrary conducted by the trial Courts and the appellate Courts after the remand order of the High Court have simply to be ignored under the Rule of "Much ado about nothing".
11. Coming to the determination of the point if Khasra No. 116 is contiguous to Khasra No. 121, one shall have reference to Shajra Kishtwar Exh. P.3 which shows the two Khasra numbers joining each other at a point. For the point if the plaintiff is the owner in Khasra No. 116 a reference is made to the statement of Patwari Halqa P.W. 1 and Fard Jamabandi Exh. P.4 which report that plaintiff as well the defendant were not the owners in Khasra No.
116. Patwari Halqa has made the statement that the plaintiff's grandfather has been recorded a co- owner in the corresponding Shamilat part of Khasra No. 116 but that will not render the plaintiff's grandfather or on his death his heirs including the plaintiff as co-owners in Khasra No. 116 itself. In fact the dispute should end here and the plaintiff should be granted a decree for possession through pre-emption with respect to the other three Khasra numbers and his suit to be dismissed with respect to Khasra No. 121.
12. Anyhow since much effort has been made by the subordinate Courts subsequent to the remand order of the High Court whether plaintiff had possessed a superior right of pre-emption on the basis of the suit land situate in four Khasra numbers forming a compact block or not and if he was the participator in immunities and appendages as his land and the suit land were being irrigated from the same water channel, I would also better refer to the evidence on record for the determination on the point. Suit Khasra No. 41 is separated by Khasras No. 45 from Khasra Nos. 125 and 119 while Khasra No. 121 is separated from them by Khasras No.
120. Khasras Nos. 45 and 120 are the water channels flowing through the suit Khasras numbers and also separating them from each other which would thus establish it beyond ambiguity that the suit Khasras numbers are not forming a compact block. The plaintiff has, therefore, to prove his superior pre-emptive right independently in case of each suit Khasra number. In respect of Khasra No. 41 he proves superior right of pre-emption on the basis of contiguity as the Patwari Halqa reports him co-owner in Khasras Nos. 32, 33, 34 which are shown contiguous to Khasra No. 41 per Aks Shajra Kishtwar Exh. P.3. So he has been recorded owner in Khasras No. 18 and 126 per Jamabandi 1965-66 Exh. P. 6 while the said Khasras numbers have been shown situate contiguous to suit Khasras Nos. 110 and 125 respectively per Shajra Kishtwar Exh. P.7. As such the planitiff, could only succeed to have superior right of pre-emption on the basis of contiguity in respect of the three Khasras numbers namely 41, 119 and 125 while he has failed to prove his contiguity with suit Khasra No. 121 as already determined. The contention that the vendee will be left with the ownership of Khasras number 121 and as such he will stay as co-sharer of the other 3 Khasras numbers with regard to the plaintiff has only been proved a contiguous owner cannot possibly defeat the plaintiff's right of pre-emption in view of a clear authority on the point published in PLD 1975 Pesh.
218.
13. As far the right of participation in immunities and appendages is concerned there has come forth evidence that suit Khasras No. 121 and Khasra No. 511 of the ownership of vendee were irrigated from the same water channel. On the other hand the water channels of Khasras Nos. 45 and 120 were irrigating the lands of the plaintiff and the 3 suit Khasras numbers. Anyhow legislature has itself confined the right of pre-emption on account of participation in immunities and appendages through illustrations to a right of way or right to discharge water. Irrigation of the lands by the same water channel is not covered by above illustrations. Further the above point has been sufficiently dealt with in a judgment published in PLD 1954 Pesh.
99. Hence on the basis of irrigation of the suit land and the lands of the parties by the same water channels cannot be permssibly employed in offence or defence as right of pre-emption within the meaning of such right based on participation in immunities and appendages.
14. To sum up plaintiff does succeed to have superior right of pre-emption with respect to Khasras numbers 41, 119 and 125 on the basis of contiguity but fails to prove his right of pre-emption in respect of Khasra No.
121. This revision is, therefore, partially accepted, the judgment and decree of the Court of District Judge, dated 16-6-1977 are accordingly modified. Plaintiff shall have a decree for possession through pre-emption in respect of an area of 14 Kanals 31 Marlas situate in Khasras Nos. 41, 119 and 125 on payment of Rs. 9,912.60 while his suit in respect of an area of 21 Marlas in Khasra No. 121 shall stand dismissed. Since the plaintiff has deposited the entire sale price including the price of Khasra No. 121, hence he shall be entitled to the refund of Rs.
87.40. Parties are left to bear their own costs throughout.