' NAIMUDDIN, J.--In these three appeals same question of law arises, therefore we will take them up together and decide,by this judgment.
2. The facts in C.A. No,197/82 are that the appellants Fazal Karim and his brother Abdul Hakim (minors) of village Zaida, Tehsil Swabi, District Mardan, purchased a piece of land measuring 14 marlas located in khasra Nos. 2388, 2389, 2400, 2457, 2458, 2460, 2461 in Abadi of village Zaida from Saeed Khan and Rashid Khan ostensibly for Rs,28,000 as per Mutation No,16571 attested on 23-2- 1978.
3. Muhammad Zaman, the respondent, resident of the same village filed a suit, being No,74/1 of 1978, against the appellants for a declaration to the effect that he alongwith the appellants is the co-owner in the -property as such the appellants were not justified for permanent appropriation of the land to the exclusion of the respondent; for permanent injunction to restrain the appellants from raising construction on the land and for directing them to fill the foundation dug in the land at their own expenses, a decree for possession by way of pre-emption of the suit property on payment of Rs,2,000 or whatever amount is determined by the Court after inquiry.
4. The respondent alleged in the suit that he was the co-sharer in the suit property and has, therefore, superior right of pre-emption in respect of it. He also based his superior right of pre- emption on the basis of contiguity and participation in the amenities and appendages of the suit land. As regards the sale price he claimed that the sale was only for Rs,2,000 but it was exaggerated so as to defeat his pre-emptive right.
5. The appellants refuted all the allegations of the respondent and raised several objections and pleaded that the property in dispute was purchased for the purpose of constructing a house and as such it was immune from pre-emption.
6. The learned trial Court framed a number of issues and after recording evidence led by the parties decided issues Nos.1 and 5 against the appellants which are as follows:=
(1) Whether the suit land is exempt from pre-emption? (2), What is the market value? and accordingly decreed the suit by the judgment, dated 4-4-1979 on payment of Rs,18,901/20 on the basis of five-yearly average price list Exh.P.W.1/2 prepared by the Patwari Helga.
7. Aggrieved by the judgment and decree in suit, the appellants filed an appeal in the Court of Additional District Judge, Mardan at Swabi. Before the learned Additional District Judge, the appellants confined their submission to issue No,1 only and contended that the learned trial Judge had taken an erroneous view in the matter in coming to the conclusion that since no partition had been effected between the co-owners with regard to the suit property, therefore, the appellants were not entitled to retain their possession. In this regard it was urged before the Additional District Judge that there was sufficient material to warrant a conclusion that Abdul Hakim and his brother, the appellants, purchased the, suit land from the co-owners/vendors for consideration and they were in possession of the same, at the time of transaction. Reference was made to the finding of the trial Court that "the suit land is partly agricultural and partly consists of hair mumkin abadi.
Each and every khasra number consists of abadi as well as area shown under various crops and have been shown in possession of co-sharers as well as tenants." Accordingly it was held that the suit land was used partly for agricultural purposes and partly for abadi subservient to -agricultural purposes.
8. Before the learned Additional District Judge, Muhammad Zaman, the respondent, assailed the finding of the trial Court on issue No,1, which relates to exemption under section 5(c) of the N.-W.F.P.
Pre-emption Act (hereinafter referred to as the Act) and submitted that the appellants did not purchase the property in question for residential purpose and as such the same is not immune from pre-emption. The learned Additional District Judge agreeing with the learned counsel for the appellants observed as follows:- "I find myself in full agreement with the learned counsel for the appellants that at the time of suit transaction Said Ahmad Khan and Rashid Khan vendors, who are also co-owners in the suit property, were in possession of it and as such they were fully justified to dispose of the same in favour of the appellants. It is established by the evidence that certain abadi has been raised on the disputed property. The very construction of abadi on the suit land suggests that a private partition has been effected between the co-owners with regard to the suit premises. The factum of abadi has also been admitted by the learned lower Court while discussing issue No,4 in the suit. The learned trial Judge has gone into error by decreeing the suit on the basis of a single isolated fact.
The entire combination of circumstances and the cumulative effect of whole evidence should have been taken into consideration. In this view of the matter, I am inclined to agree with the appellant's learned counsel that in the circumstances of the case, the findings recorded on issue No,5 cannot be sustained."
' He, therefore, by the judgment, dated 15-6-1980, accepted the appeal and set aside the judgment and decree of the trial Court. This judgment led the respondent to file a revision in the Peshawar High Court which was allowed and the judgments of the two Courts below were reversed. The judgment in revision passed by the High Court was successfully challenged in a petition for leave to appeal before this Court and the case was remanded to the High Court for disposal afresh. On remand, the High Court accepted the revision application and while setting aside the judgments of the two Courts below, decreed the suit of the respondent vide judgment, dated 18-9-1982 in C.11..
No,293/80 for the detailed reasons given in the judgment delivered in C.R. No,70 of 1978 with the following conclusion:- ".... a vendee cannot be allowed exemption from pre-emption under section 5(c) of the N.-W.F.P.
Pre-emption Act if he has purchased the share/land from a co-sharer in the joint property without the consent of other co-sharers..."
9. Leave was granted to examine the question whether the High Court has correctly laid down the law that a vendee seeking benefit of section 5(c) of the N.-W.F.P. Pre-emption Act must purchase partitioned holding or before purchase seek and obtain consent of all the co-sharers?
C.A. No,38 of 1983
10. This appeal, by leave, is from the judgment' of the Peshawar High Court, Peshawar, dated 18-9- 1982 passed in C.R. No,70 of 1978 filed by Habibur Rehman and others, the respondents in the present appeal, against Faqir Muhammad allowing the revision application and setting aside the judgments of the two Courts below by which their pre-emption suit and the appeal were dismissed and it was held by the High Court that the sale of land measuring 1 kanal in the joint land comprised in khasra Nos. 1618 and 1620 situated in village Hund, Tehsil Swabi, district Mardan, was not exempt under section 5(c) of the Act.
11. C.A. No,82-P/1987 arises out of order of the Peshawar High Court, Peshawar, dated 18-12-1985 passed in C.R. No,132. In this case the dispute concerned 50/855 shares out of khasra numbers mentioned in the plaint situated in village Kooz Behram Dheri, tehsil Charsadda. The land was purchased by Gul Rehman and another from the co-sharers on the basis of sale Mutation No,1540 sanctioned on 5-2-1983. A suit was filed by Latifur Rehman and others claiming superior right of pre-emption. Gul Rehman and others claimed exemption under section 5(c) of the Act alleging that the land was purchased, by them for construction of their houses. The trial Court relying on the judgment impugned in C.A. No,38/1983 came to the conclusion that since the,land was purchased from the joint khata and no consent of the other co-sharers was obtained. Gul Rehman and others were not entitled to exemption claimed by them and the suit was accordingly decreed. The appeal filed by Gul Rehman and another was, however, accepted by the District Judge by the judgment, dated 13-11-1984 on the ground that since the vendors/co-sharers had transferred the possession of the land to Gul Rehman and another from their exclusive possession the judgment relied upon by the trial Court was not applicable to the case. This led to the filing of the revision, which ' was dismissed by the Peshawar High Court. The High Court, in dismissing the revision, relied on Salim Khan and others v. Muhammad Ayub Khan 1987 MLD 2413 and observed that the earlier view expressed in Habibur Rehman and another v. Faqir Muhammad PLD 1979 Pesh. 1 and re-affirmed on remand from the Supreme Court that a vendee from co-owner cannot choose any area in joint land for construction of houses and the doctrine of exemption could not be costrued in his favour, was not valid and in support relied on a judgment of this Court. In Qasim Khan v. Nawaz Khan etc. 1985 SCM R 926 wherein it was held that a vendee of a portion of joint land could claim exemption under section 5(c) of the Act.
12. The question for consideration in these appeals is whether a vendee seeking benefit of section 5(c) of the Act must purchase partitioned holding or before purchase seek and obtain consent of all the co-sharers?
In order to consider the above question, reference to section 5(c) of Act is necessary. It reads as follows:- "5. Property exempted from pre-emption.-- No right pf pre-emption shall exist in respect of the sale of, or the foreclosure of a right to redeem-
(a) (b)
(c) agricultural land or village immovable property, consisting of an area measuring not more than two kanals purchased by a resident of the village in which such land is situated, where he neither owns a house nor a vacant site measuring more than one kanal, for constructing a house for his own occupation."
' Accordingly, in order to claim the benefit of section 5(c) of the Act, a vendee has to fulfil the following conditions:-
(i) that the property should be agricultural land or village immovable property;
(ii) that its area should not measure more than two Kanals;
(iii) that it should be purchased by a resident of the village in which the property is situated;
(iv) that the vendee should neither own a house nor a vacant site more. Than one Kenai; and
(v) that it should be for constructing a house by the vendee for his own occupation.
' If all these conditions are fulfilled, a claim for right of pre-emption in respect of such property must fail for a person may purchase a share in the land jointly owned by several persons from one of the co-owners thereof and if he fulfils all the aforesaid conditions, the right of pre-emption against such a land would also be defeated for if I hold otherwise, I would be reading a condition in section 5(c) of the Act which does not exist therein because the vendee of a co-sharer, who owns an undivided khata in common with another or others, is clothed with the same right as the vendor has in the property no more no less. (See Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 Supreme Court [Pak] 9. Therefore, it is not necessary that a vendee must obtain consent of other co-owners before purchasing from the vendor his share in the joint property.
13. Further, if the vendor was in exclusive possession of a certain portion of joint land and transfers its possession to his vendee, "so long as there is no partition 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 areas purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property as held by this Court in Muhammad Muzaffar Khan's case (supra). Once a vendee purchases such undivided share in the property he can apply for partition thereof (unless the partition is barred by law which is not the case pleaded in these appeals) and on obtaining separate share of land measuring two kanals or less, as the case may ere, he can construct a house thereon.
14. It was held by this Court in Qasim Khan v. Nawaz Khan etc. 1985 SCMR 926 at page 927 of the report _as follows:- "The vendees-respondents had become co-sharers with the other owners in the khasra numbers in dispute end they could therefore get their share separated through partition and since the area purchased was not more than 2 kanals and it has been concurrently held by all the- Courts that the vendees had purchased the land for constructing houses, the sale was therefore, exempt from pre-emption."
15. It will be seen that the learned Judge, in denying exemption claimed under section 5(c) of the Act has relied on the fact that while 'purchasing the share of the vendor/co-sharer in the joint property, the vendee had- not already obtained the consent of other co-sharers that the latter would construct a house upon any share. But as observed by this Court in Qasim Khan's case (supra) that a vendee could get his share separated through partition. Therefore, D if the consent of the 'other co-sharers was not forthcoming he could get his share separated and construct a house thereon. Accordingly, the reasons quoted above given by the High Court would not hold good. The High Court also relied on the following observations made in a judgment of this Court reported as Afsar Khan and others v. Mst_Khanum Jan and others 1973 SCMR 273:- "However, there can be no cavil with the proposition that ordinarily a co-sharer cannot 'be permitted to alter the nature of the property and to put it to a different use from the one for which it is intended."
' Correctness of this proposition could not be doubted. But if a co-sharer or co-owner desires to construct a house on his share of the land and the other co-sharers or co-owners refuse to consent or do not agree to the use of the property to which other co-sharer or co-owner wants' to put it, his remedy for applying for partition of the land and separation of his share where he can construct' a house as he intended. In such circumstances; he would still be fulfilling all the conditions laid down in section 5(c) of the Act- And in so interpreting the provision, I would be protecting the right which section 5(c) of the Act, gives to a_ vendee against the right of pre- emption.
16. I would, therefore, allow C.As. Nos.197/82 & 38/83 and dismiss C.A. No,82,,P/1987, leaving the parties to bear their' own costs.
' MUHAMMAD HALEEM, C.J.-- I agree.
' JAVID 1QBAL,, J.-- I agree.
' ALI HUSSAIN QAZILBASH, J.-- I agree