' Dost Muhammad appellant and Mst. Ghulam Fatima respondent No,1 filed two suits separately to pre-empt the sale of vacant piece of land measuring 5 Marlas situated in Mohallah Takleeran in the Town of Chiniot, District Jhang, effected by Muhammad Yousuf, Muhammad Sadiq, Muhammad Ibrahim, sons and Mst. Aisha Begum, widow of Mian Maula Bakhsh, by means of registered sale-deed, dated 13-3-1969 for Rs,7,000. Dost Muhammad, while pleading existence of custom of pre-emption in the area, in which the aforementioned piece of land was situated, based his right of pre-emption on the grounds that he was owner of the house contiguous to the aforementioned vacant plot; that the western and southern walls of the house had been constructed on the land jointly owned by him and the vendors of the vacant plot; and that two windows and two ventilators in the western wall and one ventilator in the eastern wall of his house also opened towards the plot in question. He controverted the payment of Rs, 7,000 as the price of the plot in question by the vendees as mentioned in the sale-deed. According to him the plot was purchased by the vendees on payment of Rs,5,000, which was also its market value. Mst. Ghulam Fatima also alleged that the custom of pre-emption prevailed in the locality, where the piece of land in question was situated. She claimed superior right of pre-emption against the vendees and her rival pre-emptor Dost Muhammad on the grounds that she-was the owner of the house contiguous to the land in dispute; that four windows of her house opened towards the vacant plot in dispute; that the water of two sprouts of her house also passed through the vacant plot purchased by the vendees; and that the entrance to the aforementioned plot and the house owned by her were also located in the same street. According to her Dost Muhammad had instituted the suit for the benefit of the vendees, who were also financing the litigation. She also contended that the land in dispute was purchased by the vendees for Rs,5,000 only. Mst. Khurshid Begum, Mst. Balqees Begum, Mst. Shehzadi Begum and Mst. Khadija Begum, who purchased the land in question, contested both the suits and controverted the allegations made by the two pre- emptors. After consolidating the two suits the learned trial Court framed the following issues:-
(1) Whether defendants-vendees have constructed some buildings on the suit land prior to the institution of this suit, if so, what are their expenses and with what effect? O.P.D.
(2) Whether suit No, 115 of 1970 has been fmproperly valued for the purposes of court-fee and jurisdiction?
(3) Whether suit No, 115 of 1970 has been filed for the benefit of defendants-vendees, if so its effect?
(4) Whether this suit has been improperly valued for the purposes of court-fee?
(5) Whether this suit has been filed in collusion with Ghulam Jannet wife of Allah Ditta, if so, its effect?
(6) Whether this suit is bad for non-joiner of necessary parties, if so, what is its effect?
(7) Whether the plaintiff is estopped from bringing this suit?
(8) Whether this suit is liable to be dismissed for preliminary objections A and B of the written statement filed by defendant No,5?
(9) Whether custom of pre-emption exists in the locality in which the property in dispute is situated?
(10) If issue No,9 is proved then whether the plaintiff and defendant No,5 rival pre-emptor have superior right of pre-emption as against defendants Nos. 1 to 4?
(11) Which of the rival pre-emptors has a superior right of pre-emption as against each other?
(12) Whether Rs, 7,000 was fixed in good faith or paid by the defendant-vendees to the vendors?
(13) If issue No,12 is not proved then what was the market value of the property in dispute at the time of its sale to the defendants?
(14) Relief.
2. During the trial both the pre-emptors admitted the sale price of the land in dispute as Rs,7,000 and also agreed to pay Rs,800 in addition to the sale price as the said amount had been incurred by the vendees in raising some construction on the land. The vendees, in turn, admitted the superior right of pre-emption of the pre-emptors. As the parties did not press their objections, which gave rise to issues Nos.2 to 10, the learned trial Court decided these issues against the parties, which raised these objections. .The only crucial issue, which required determination by the learned trial Court was issue No,11. It was decided in favour of Dost Muhammad and against Mst.
Ghulam Fatima as it was found that Dost Muhammad's claim of superior right of pre-emption was established as his case fell under section 16-Firstly of the Punjab Pre-emption Act, 1913., as by proving the fact that the two walls of his house had been constructed on land jointly owned by him and the vendors he had established that he was a co-sharer in the piece of land, which was subject-matter of the pre-emption suit. As a result of the above finding the learned trial Court decreed the suit of Dost Muhammad and dismissed the suit of Mst. Ghulam Fatima, vide its judgment and decree, dated 28-4-1971. On appeal the learned District Judge modified the finding of the learned trial Court under issue No,11 and held that both the pre-emptors had equal rights and were entitled to get half share each in the land in dispute on payment of proportionate pre- emption money. According to the learned District Judge Dost Muhammad was not entitled to claim superior right of pre-emption merely on the ground that two walls of his house had been constructed on a portion of land owned by the vendors of the disputed land. Dost Muhammad has filed the instant regular second appeal against the judgment and decree, dated 7-4-1972 of the learned District Judge, Jhang. Mst. Ghulam Fatima also feels aggrieved by the aforementioned judgment and decree of the learned District Judge. She has filed cross-objections contending that she, being the owner of the dominant property, was entitled to pre-empt the sale of the disputed land, which was survient property in preference to Dost Muhammad as her case was covered by section 16-Fifthly of the Punjab Pre-emption Act, 1913, while Dost Muhammad's case fell under Sixthly of the said section.
3. The learned District Judge, while reversing the finding of learned trial Court under issue No,11, had observed that the sale-deed Exh. P.1, on which reliance had been placed by Dost Muhammad to show that the southern wall of the house of Dost Muhammad had been constructed over land jointly owned by him and Karam Elahi, who had sold the disputed piece of land to Maula Bakhsh deceased predecessorin-interest of the vendors, was not sufficient evidence to support the contention of Dost Muhammad as Mst. Ghulam Fatima was not a party to the aforementioned document. Learned counsel for the appellant has contended that the above view of the learned District Judge is not tenable as the execution of the registered sale-deed Exh. P..1 was duly proved by Dost Muhammad, who was one of the attesting witnesses of the document and even otherwise endorsement of registration on the document itself was sufficient to prove its execution and registration. From the impugned judgment of the learned District Judge it is clear that the appeal of Mst. Ghulam Fatima was not accepted and the judgment and decree passed by the learned trial Court in favour of Dost Muhammad was not reversed merely on the ground that he had failed to establish his claim of joint ownership of the land underneath the southern wall of his house. Dost Muhammad's claim of superior right of pre-emption was turned down by the learned District Judge as it was found that the alleged joint ownership of the land underneath the southern wall of the house owned by Dost Muhammad did not bring his case within the purview of Section 16-Firstly of Punjab Pre-emption Act, 1913. The view taken by the learned District Judge is unexceptionable in view of the decision of the Supreme Court in Mardan Shah v. Shah Nazar Khan PLD 1970 SC 245. In that case it was held that a person, who was a part owner of one of the walls of the house and had no right of any kind in any other part of the house was not entitled to call himself to be a co-sharer in the property. It was observed:- "His claim, therefore, that by reason of his being a co-owner in a common wall of the disputed house, he should be deemed to be a co-sharer in the house in dispute to give effect to his pre- emptive right to that house is too wild to need any further comment."
' Learned counsel for the appellant has relied on the decision in Chela Ram v. Mehar Chand AIR 1921 Lah. 181 in support of his contention that since the rafters and beams of the house of the appellant rests on the common wall he possesses superior right of pre-emption as against Mkt.
Ghulam Fatima, who merely is owner of the house contiguous to the land in question. In the case cited by the learned counsel for the appellant there was no contest between the rival pre-emptors and the only question for consideration was whether a person, who owned property contiguous to the property sold was entitled to pre-empt the sale as the rafters and beams of his property rested upon a common wall. In the present case there is no evidence that besides the land underneath the wall, the wall itself was owned jointly by the appellant and the owner of the land in dispute. It may be noticed that in Atma Singh v. Hemraj Shah 59 I C 939 it was held that the existence of joint wall between two houses was not an easement within the meaning of Section 16-Fifthly of the Punjab Pre-emption Act.
4. The learned trial Court upheld the superior right of pre-emption claimed by the appellant on account of the fact that one of the walls of his house had been constructed on the land jointly owned by him and the vendors of the disputed land. No definite finding was given by the learned trial Court as to whether Mst. Ghulam Fatima had established her claim under section 16-Fifthly of the Punjab Pre-emption Act. The learned District Judge, while modifying the finding of the learned trial Court under issue No,11 found that both the appellant and Mst. Ghulam Fatima possessed equal right of pre-emption as being owners of the property contiguous to the land in question. Both the appellant and Mst. Ghulam Fatima contend that they are owners of the dominant property as the windows and ventilators of their houses open towards the land in question. The evidence on the record produced by them, however, does not fulfil the legal requirements of their having acquired any right of light end air through prescription so as to bring their case within the fold of Section 16- Fifthly of the Punjab Pre-emption C Act. The view taken by the learned District Judge that they possess equal right of pre-emption on account of having owners of the properties contiguous to the land in question is correct and calls for no interference by this Court.
The upshot of the above discussion is that both the appeal and the cross-objections filed by Dost Muhammad and Mst. Ghulam Fatima, respectively have no merits and the same are hereby dismissed leaving the parties to bear their own costs.
Appeal and cross-objections dismissed.