' In Suit No, 394/1, decided on 16-7-1969, a consent decree was obtained by Taj Muhammad and two others against Abdul Khaliq. That decree had the effect of declaring Taj Muhammad and others as owners of land measuring 9 Kanals 4 Marlas out of Khasra No, 1768, situated in village Kheshki Payan. While asserting that the decree was a transaction of sale, Abdul Matin, while claiming such a declaration, also sued for possession by pre-emption of the land mentioned above. It was claimed in the plaint that the plaintiff being a co-sharer, having land contiguous to the suit land and being participator in the immunities and appendages thereof had a superior right to pre-empt the sale against the vendee defendents. It was also alleged that the price paid as sale consideration was Rs, 200 only.
2. The suit was contested by Taj Muhammad and other vendees on many grounds. While admitting the transaction to be that of sale, they asserted that the sale of the suit land in their favour for Rs, 7,000 had taken place 25 years ago and that the civil suit (394/1) had been instituted by them so that their names be incorporated in the revenue record. They also denied the pre-emptor's superior right of pre-emption. On the pleadings of the parties the foilowing issues were framed by the learned trial Judge :-
(1) Have the defendents Nos. 1 to 3 obtained a declaratory decree in Civil Suit No, 391/1 of 1964 with the collusion of defendent No, 4 in order to defeat the plaintiff's right of pre-emption which decree is void and ineffective on the rights of the plaintiffs? 0. P. P.
(2) If issue No, 1 is proved, has the plaintiff a preferential right of pre-emption? 0. P. P.
(3) Is the suit within time? 0. P: P.
(4) Is the suit not maintainable in its present form? 0. P. D.
(5) What is the market value of the suit land? 0. P. P.
(6) Relief.
3. On conclusion of the proceedings the suit of the plaintiff was dismissed on 19-7-1971. He filed appeal in the Court of learned Additional District Judge, Peshawar, who, while accepting the same, remanded the case on 13-6-1972 to the learned trial Judge for re-deciding the suit. The learned trial Judge, by judgment and decree dated 21-3-1974, again dismissed the suit and on appeal filed by the plaintiff the case was again remanded by the learned appellate Court, vide judgment and decree dated 29-9-1975, for re-decision. It was again heard by the learned Civil Judge, who, by judgment and decree dated 13-5-1977, dismissed it, and the appeal filed by the plaintiff against that order also met the same fate, vide the order dated 8-1-1979 made by the learned Additional District Judge. The plaintiff has challenged those decrees in this revision petition.
4. Miaf, Shaukat Hussain, Advocate appeared on behalf of the petitioner and Mr. Saeed Baig, Advocate appeared on behalf of the respondents. They have been heard and the record of the case thoroughly perused with their assistance. In order to obtain some clarification, Patwari Halqa was also examined in this Court.
5. The learned Courts below have non-suited the pre-emptor on the ground that the vendee- defendants having become, as a result of consolidation proceedings, owners of land bearing Khasra Nos. 1433 and 1434, which are contiguous to the disputed land bearing Khasra No, 1439, having been assigned this number also as a result of consolidation proceedings, had an equal right to that of the pre-emptor who possessed this qualification even earlier than the scheme of consolidation was introduced and finalized in this village and also after such consolidation. The learned counsel for the petitioner contended that this approach of the learned Courts below to the controversy was illegal and the change in the status of the parties which took place as a result of consolidation proceedings during the pendency of the suit could not defeat the pre-emptor's superior right which he possessed on the date of sale and even earlier to such consolidation proceedings and even now. The learned counsel for the respondents, however, defended the judgments of the learned Courts below and argued that since the pre-emptor could not maintain his superior right of pre-emption upto the date of the decree, his suit was rightly dismissed by the learned Courts below.
6. In the light of the aforesaid facts and the arguments of the learned counsel for the parties, the precise question which arises for determination in this case is, whether or not the scheme of consolidation introduced and approved in this village could in the circumstances of this case operate to defeat the superior right of pre-emption of the pre-emptor which he possessed on the date of sale and which retained even after such scheme had come into operation. This right was on the basis of contiguity; the ground of being a co-sharer not taken up in his statement in Court.
7. The declaratory decree obtained on 16-7-1969 in Suit No, 394/1 was challenged in this suit to be that of sale and this point is now not in dispute because the defendants in this suit have themselves admitted the transaction in question to be that of sale. This suit was instituted on 1-7- 1970 and at that time, as on record and in the statement of Patwari Halqa, consolidation proceedings in the village were in progress. The land assigned Khasra No, 1768 in consolidation proceedings was previously represented by Khasra No, 1376 (Patwari's statements dated 8-7-1971).
The plaintiff was owning land represented by old Khasra No, 1377 contiguous to old Khasra No, 1376 (Exhs. DX and DY). According to evidence on record the vendee-defendants did not own any land contiguous to old Khasra No, 1376. There is nothing on the record to show that in old Khasra No, 1372, out of which present Khasra Nos. 1433 and 1434 have been carved out and now allotted in consolidation proceedings to the vendee-defendants, they had any share. No revenue record evidencing their title in that Khasra has been brought on record and the statement dated 1-3.1973 of Mushtaq Hussain Patwari, on which the two Courts below have placed reliance, is to be read as disclosing the position as obtaining after the consolidation proceedings which were ultimately confirmed. It is in the statement of Habibullah, Patwari Halqa, recorded in this Court on 2-4-1986, that the consolidation proceedings at which suit land was assigned Khasra No, 1768 were not confirmed and on remand were again conducted and finalised in the year 1971 and the suit land assigned Khasra Nos. 1438 and 1439. It is established on the record that the pre-emptor was having land contiguous to Khasra No, 1768, which it was at the time when consent decree in Suit No, 394/1 had been passed on 16-7-1969. He was having land, as already said, contiguous to this land even before the consolidation proceedings had started in the village. He is also having land represented by Khasra No, 1441 contiguous to present Khasra No, 1439 in dispute. The vendee-defendants were not having land contiguous to the suit land before the consolidation proceedings had started in the village. They were also not having land contiguous to the suit land at the time when it was assigned in consolidation proceedings, which were later not confirmed, Khasra No, 1768. Khasra No, 1767 was then owned by Shamroz Khan and not by the vendee-defendants. It was during this period that the disputed sale had taken place. However, after remand and in the subsequent consolidation proceedings, which were finally confirmed in the year 1971, they were allotted share in Khasra No, 1434 which is contiguous to the present disputed Khasra No, 1439. This would clearly mean that improvement in their status had occurred in the year 1911 when the consolidation proceedings making them owners of land contiguous to the suit land were confirmed. That being so, and since this improvement in the status was not by way of inheritance or succession, such an improvement, if at all it could be called on the basis of consolidation proceedings, having been made after the institution of the pre-emption suit, was clearly hit by. Subsection (2) of section 17 of the N.-W. F. P. Pre-emption Act. The two Courts below, therefore, fell into error in misconstruing the law and for this reason the findings reached by them, even on question of fact, call for interference in the revisional jurisdiction of this Court.
8. Consequently, while accepting this revision petition, I set aside the impugned decrees passed by the learned Courts below and grant to the petitioner/plaintiff a decree for possession by pre- emption of the suit land on payment of Rs, 3,738.88, the amount which was not agitated or questioned before me, as pre-emption money. If not deposited earlier, this amount shall be deposited by the pre-emptor in the trial Court within two months from today, failing which his suit shall stand dismissed with costs. On account of intricate question of law involved in this case, I would leave the parties to bear their own costs.