' This was a suit for possession by pre-emption brought by Hassan Muhammad, plaintiff/respondent herein, against Nawab Din etc., defendants/appellants herein. The suit was decreed by a judgment of Mr. Muhammad Aslam Sumra, Civil Judge, 1st Class, Sialkot, dated 15-3- 1973 and the vendee-defendants' appeal was dismissed by a judgment of Mr. Muhammad Zafar Babar, Additional District Judge, Sialkot dated 20-11-1974.
2. The vendees-defendants have preferred this second appeal.
3. The facts, so far as they are relevant for the purposes of this a. Feel, ma be shortly stated as follows.
4. The land in suit comprised Khata No.11 consisting of 22 Khasra numbers, according to Jamabandi for the year 1963-64, its total area being 163 Kanals and 5 Marlas.
5. The entire Khata No.11 belonged to Mst. Jamil-un-Nisa Begum. By means of a deed of gift registered on 27-8-1964, Mst. Jamil-un-Nisa Begum transferred 7 Marlas each out of two specific numbers viz. Khasras Nos. 256 and 257 to Hassan Muhammad, plaintiff, later, by a sale-deed dated 21-7-1965 (Exh. P.W. 1) Mst. Jamil-un-Nisa Begum sold 62 Kanals and 11 Marlas comprising Khasras Nos.21, 22, 24, 34, 35, 36, 256, 257 and 270 out of Khata No.11 to Hassain Muhammad, plaintiff. Then, by means of a deed of sale dated 28-11-1966, Mst. Jamil-un-Nisa Begum sold her remaining land in Khata No.11 in favour of Nawab Din etc., vendees-defendants.
6. Basing himself on the previous two transfers, Hassan Muhammad, plaintiff, brought this suit to pre-empt the sale in favour of Nawab Din etc. His case being that he was a co-sharer in the Khata.
The vendees-defendants, appellants herein, denied that he was a co-sharer and had, therefore, a right of pre-emption. The learned Civil Judge found that on account of the previous transfers made in his favour by Mst. Jamil-un-Nisa Begum by means of deeds dated 27-8-1964 and 21-7-1965, the plaintiff had become a co-sharer in the Khata and had, therefore, a right of pre-emption and this was also the view taken by the learned Additional District Judge in dismissing the vendee/defendants' first appeal.
7. The only question on this appeal, therefore, is whether the learned Courts below were right in their view that the plaintiff, on the basis of the deeds dated 27-8-1964 and 21-7-1965, had become a co-sharer in the Khata.
8. There are two precedent cases on the point namely, Ali Muhammad v. Shera 1987 SCM R 207 and Muhammad Muzaffar Khan v. Muhammad Yousaf Khan PLD 1959 SC (Pak.)
9. The ratio of the first was relied upon by the learned counsel for the appellants, for his contention that in the circumstance of the case, the plaintiff was not a co-sharer in the Khata and the second was pressed into service by the respondents' counsel in support of his view that the effect produced by the deeds referred to above was to make the plaintiff a co-sharer in the khata. The facts in Ali Muhammad's case were that the respondents had purchased land measuring 88 Kanals in Khatta No.218 vide mutation. No.308 sanctioned on 28th August, 1970. Ali Muhammad pre-empted this sale on the ground that he was a co-sharer in the khata with the vendor Khan Masood Ahmad Khan. It was found that Ali Muhammad, plaintiff, had purchased some land prior to the sale in question in the same khata and the learned Courts below, therefore, held that he was a co-sharer in the khata and had, therefore, a superior right of pre-emption. In the High Court, however, it was held that the plaintiff as well as the vendeesdefendants had purchased the land from the same original owner namely, Khan Masood Ahmad Khan, who was admittedly the sole proprietor of the khata with no other person to share the Khata with him; that the plaintiff had purchased specific fields from Khan Masood Ahmad Khan and, therefore, he could not possibly become a co-sharer in the Khata with Khan Masood Ahmad Khan. This view was upheld by the Supreme Court. In Muhammad Muzaffar Khan's case, the land in dispute was comprised in khata No.324 which was owned by Samandar and his brother, Qalandar, who held a moiety in the khata in equal shares and Alamgir Khan, who owned the remaining one-half share. Between the years 1936 and 1944, 480 Kanals of land falling within the specific Khasra numbers of the Khata were purchased by Muhammad Muzaffar Khan from Alamgir Khan. No partition was effected between co-sharers prior to or after these sales. The co-sharers were enjoying in severality specific Khasra numbers. Samandar and Qalandar jointly sold 62 Kanals out of Khasra No.412 of Khata No.324 to Muhammad Yousaf Khan vendee-defendant by a registered sale-deed dated 22nd October, 1951. Subsequently, Samandar alone trnsferred an area of 30 Kanals out of some Khasra numbers to Muhammad Yousaf Khan. These two sales in favour of Muhammad Yousaf Khan were pre-empted by Khan Masood Ahmad Khan on the plea that he was a co-sharer in the Khata of which the property sold formed a part. His suits were decreed by the trial Court and the appeals were dismissed by the first Appellate Court. The learned Judicial Commissioner, Peshawar, in revision, held otherwise and the question formulated for the decision of the Supreme Court was whether a person who had purchased specific field numbers from a co-sharer in a joint khata became a co-sharer in the property within the meaning of section 12, firstly, of the N.-W.F.P. Pre-emption Act, 1950. Being of the view that such a person did not acquire the status of a co-sharer, the learned Judicial Commissioner accepted the revision and dismissed the suit of Muhammad Muzaffar Khan. The Supreme Court was, however, of the opinion that "the vendee of a co-sharer who owns an undivided khata in common with another, is clothed with the same rights as the vendor has in the property, no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partion between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property".
9. It appears that Muhammad Muzaffar Khan's case was not cited at the Bar of the Supreme Court in All Muhammad's case and no occasion therefore, arose to distinguish them. Yet, it seems to me that the two cases lay down two different principles of law applicable to two different sets of facts.
The key, in my judgment, lies in clearly comprehending the facts of the two cases.
10. What distinguishes Ali Muhammad's case from Muhammad Muzaffar Khan's case is the fact that in the former, the entire Khata was owned by one person and both the plaintiff and the vendee had purchased the land out of that Khata from that sole owner, whereas in Muhammad Muzaffar Khan's case, the Khata was jointly owned by three persons named Qalandar, Samandar and Alamgir Khan; while Muhammad Muzaffar Khan, plaintiff, claimed to pre-empt the sale on the basis of transfers made in his favour by Alamgir Khan, the sale in favour of Muhammad Yousaf Khan, vendee-defendant, had been made by the other two co-owners namely, Samandar and Qalender.
11. The principle of law enunciated in All Muhammad's case, therefore, appears to be that when a person is the sole proprietor of a khata with no other person to share the Khata with him and that person sells, not a definite share in the khata, but some specific field numbers out of it, first to the pre-emptor and then to the vendee-defendant, the sale of the specific numbers to the pre-emptor would not make him a co-sharer in the Khata with that person.
12. This is precisely what happened in this case. As has been seen above, Mst. Jamil-un-Nisa Begum was the sole owner of Khata No.11; she first transferred some specific Khasra numbers out of the khata to Hassan Muhammad, plaintiff, and then the remaining khasra numbers to Nawab Din etc. Appellants. With the sale in favour of Nawab Din etc, Mst. Jamil-un-Nisa ceased to be an owner in the khata. The facts of this case, therefore, fall squarely within the rule laid down in Ali Muhammad's case. I, therefore, hold that the learned Courts below wrongly held that Hassan Muhammad, plaintiff, was a co-sharer in the khata.
13. I, therefore, accept the appeal, set aside the judgments and decrees of the Courts below and dismiss the suit. The parties are left to bear their costs.