' By this single judgment I propose to dispose of Civil Revision Petition No, 81 and Civil Revision Petition No, 83, both of the year 1984, because in them common questions of law and fact arise. The petitioners in Revision Petition No, 81 are Fazal-ur-Rehman and Zarif Khan and the respondent is Haji Muhammad Yaqoob, whereas in Revision Petition No, 83 the petitioners are the same but the respondents are the said Haji Muhammad Yaqoob and one Subedar Muhammad Nazik. These revision petitions arise in the following circumstances ' Occupancy rights in respect of 5/12 shares in the land represented by Khasra Nos. 545/1 and 545/2, measuring 19 Kanals 9 Marlas, situated in village Battal Kund, Tehsil and District Abbottabad, were sold by Mst. Makhan Jan and Rehmat Jan in favour of Haji Muhammad Yaqoob by Mutation No, 610, attested on 17-4-1982. The sale was pre-empted by Fazal-ur-Rehman and Zarif Khan on the grounds of co-sharership, contiguity and participation in the immunities and appendages of the suit land. The sale consideration to have been paid by the vendee was also disputed by them.
The suit was contested by the vendee-defendant on variety of grounds, which gave rise to as many as seven issues, which were framed in the case, out of which, for the purposes of this petition, issue No, 4 is relevant, which reads as follows :- "Whether the plaintiffs have got a superior right of pre-emption ?"
' This issue was answered by the learned trial Judge in the negative and the pre-emption suit was accordingly dismissed by him, vide his judgment and decree dated 27-4-1983. The aggrieved plaintiffs went up in appeal to the Court of the learned District Judge, but with no success. The decree of the learned District Judge is, dated 25-1-1984. The plaintiffs have filed this revision petition, bearing No, 81/84, calling in question the said decree.
' By Mutation No, 614, attested on 17-4-1982, occupancy rights relating to 2/3rd shares in the land represented by Khasra No, 548, measuring 16 Kanals 17 Marlas, situated in the same village Battal Kund, were sold by Mst. Makhan Jan and Rehmat Jan in favour of Haji Muhammad Yaqoob and Subedar Muhammad Nazik. The sale was pre-empted by Fazal-urRehman and Zarif Khan on the grounds of co-sharership, contiguity and participation in the immunities and appendages of the suit land. The sale consideration to have been paid by the vendees was also disputed by the pre- emptors. The suit was contested by the vendees-defendants on variety of grounds which gave rise to as many as six issues, which were framed by the learned trial Judge, out of which issue No, 3 is material for the purposes of this revision petition, which is as under : "Whether plaintiffs have got a superior right of pre-emption?"
' This issue was answered by the learned trial Judge in the negative and in consequence, he vide his judgment and decree dated 17-4-1983, dismissed the suit instituted by the plaintiffs who, feeling aggrieved, went up in appeal to the Court of the learned District Judge, but with no success. The decree of the learned District fudge is dated 25-1-1984, against which the unsuccessful pre- emptors have come up in revision to this Court, which has been registered as Revision Petition No, 83 of the year 1984.
2. S. Abdus Salam Sarwar, Advocate, appearing for the petitioners in both these revision petitions, has attacked the concurrent finding of the learned two Courts below only on the issues mentioned above. He contended that the vendees by purchasing the ownership as well as occupancy rights of the suit land could not remain occupancy tenants thereof, such rights merging into ownership rights, and for that reason, even though the sale which was sought to be pre-empted was of the occupancy rights, the pre-emptors could institute pre-emption suits in order to ask for their substitution for the vendees in respect of full ownership rights in the suit land, and in this way, while so asking, they could base their right of pre-emption on any of the three grounds first mentioned in section 12 of N.-W. F. P. Pre-emption Act. He further contended that the principle of merger being applicable in these cases, the learned Courts below were to take the disputed sales as that of full ownership rights and not of occupancy rights and while so deeming the learned Courts below were to keep in mind the first mentioned three grounds in section 12 of the N.-W.F.P. Pre-emption Act, and in the event of pre-emptors, proving one of such qualification, the cases were to be decreed in their favour and not dismissed, as has been done by the learned two Courts below. He contended that the petitioners being co-sharers in the disputed land could successfully 'pre-empt the disputed sales which were to be regarded as those relating to full ownership rights. The learned counsel in this regard relied on A I .R 1941 Lah. 433, PLD 1960 Lab. 250, PLD 1978 Lah. 9 and PLD 1983 SC 265.
3. It is significant to note that in both these suits the petitioners claimed their superiority of pre- emptive right on the grounds of co-sharership, participation in the immunities and appendages of the suit land and contiguity, and not on the ground of being landlords, as mentioned in section 12 of the N.-W. F. P. Pre-emption Act, even though the disputed sales were distinctly of the occupancy rights. The fourth ground mentioned in section 12 of the Pre-emption Act having not been made basis by the pre-emptors for asking for prior purchase in these suits was, therefore, rightly kept out of consideration by the learned two Courts below and so would I do while deciding these petitions.
It is undisputable that the vendors being owners of a certain share in the suit land were in possession of that share in that right and of the remaining share they were occupancy tenants, in possession, under other co-owners. The disputed sales in both these suits related to the occupancy rights and both the sale mutations were also attested to that effect. The petitioners have themselves mentioned this fact in their pleadings, without basing their claim on the fourth ground mentioned in section 12 of the Pre-emption Act. The principle of merger, as advocated by the learned counsel for the petitioners, was inapplicable to these cases because the vendors of the suit land were owners of 1/3rd share, which they were possessing in exercise of that right, and of the remaining 2/3rd shares they were occupancy tenants under other co-owners, and having not become owners, by purchase or otherwise of that 2/3rd shares of which they were occupancy tenants, the lesser right had neither merged in the right prior to the sales in suit, nor after that. Both these rights, i. e., the greater and the lesser, possessed by the vendors remained distinct and separate and being independent of each other were separately transferred by them in favour of the vendees through separate transactions. The question of merger in such cases; therefore, did not arise. The authorities cited by the learned counsel for the petitioners related to cases in which respecting same property the ownership rights and the occupancy rights came to vest in one and the same person and as such were not applicable to the facts of these cases. This argument of the learned counsel for the petitioners has no substance.
4. The learned counsel for the petitioners next contended that the predecessor of the vendors, namely Kaka Khan, also could not at the same time retain two positions, one of owner and the other of occupancy tenant and for that reason, his successors shall be deemed to have received from him full ownership rights in the suit land by way of succession, and would thus be deemed to have transferred same rights to the vendees which were pre-empted by the petitioners. The learned counsel stretched the principle of merger to the predecessor of the vendors as well. This argument, for the reasons already mentioned, also has no force.
5. Once the aforesaid arguments of the learned counsel for the petitioners are kept out of consideration, there is, indeed, no evidence on the record to show that the concurrent findings reached by the learned two Courts below on the issues mentioned above, which related to questions of fact, suffered from any infirmity or misreading or non-reading of evidence, nor has any such argument been addressed before me by the learned counsel for the petitioners.
6. In the result, both the revision petitions being without merit are hereby dismissed with costs.