' The suit land was owned by one Muhammad Akram who sold it to Mian Khan respondent No,2 herein by sale Mutation No,6314 attested on 19-7-1977. Sultan Respondent No,1 herein pre-empted the said sale by a suit filed in the Court of Civil Judge, Abbottabad on 20-4-1978. Mian Khan respondent No,2 inter alia contended in his written statement that he had transferred the suit land to Mst. Mubarik Jan petitioner herein in recognition of her superior pre-emptive right whereupon the respondent No,1 submitted an amended plaint also impleading Mst. Mubarik Jan as a party and also pre-empting the sale in her favour. The respondent No,1 had claimed all the three rights c f pre-emption that is co-ownership in participation in immunities and appendages of and contiguity with the suit property. The suit was contested by Mst. Mubarik Jan and the pleadings of the parties gave rise to the following issues:--
(1) Whether the transfer was made by defendant No,1 to defendant No,2 before the expiry of period of limitation, if so, its effect?
(2) In case issue No,1 is decided in affirmative, whether the transfer by defendant No,1 in favour of defendant No,2 is collusive?
(3) Whether the plaintiff has superior right of pre-emption?
(4) Whether a sum of Rs,15,000 was fixed or paid in good faith?
(5) What is the market value?
(6) Relief.
Additional issue 1-A: Whether the suit land has been validly and genuinely transferred by defendant No,1 in favour of defendant No,2 in recognition of her superior right of pre-emption for valid consideration, if so, to what effect?
' After recording evidence as produced by the parties the learned Civil Judge decided issues 1 to 3 and Additional issue No,1-A in favour of the respondent No,1 and decreed his suit by judgment dated 17-3-1982. It was held by him that the pre-emptor respondent No,1 could only prove the superior right of contiguity with the suit land. The petitioner herein also contended that she was original owner in the village and being an owner in village shamilat was also owner of property contiguous to the suit land and it transpires that there was a 'kassi' contiguous to the suit land and she being a co-owner in shamilat claimed co-ownership in that 'kassi as well. However, the learned Civil Judge held that a person co-owner in village shamilat could not claim superior pre-emptive right. Hence he decreed the suit of the respondent No,1 by judgment dated 17-3-1982. Mst. Mubarik Jan petitioner herein filed an appeal which was heard by District Judge, Abbottabad. The learned appellate Court held that the right of co-ownership in a "kassi" could not be alienated or sold so he agreeing with the findings of the learned Civil Judge dismissed the appeal by judgment dated 20- 4-1983. Still feeling aggrieved Mst. Mubarik Jan filed the revision petition in hand.
2. It was contended by the learned counsel for the petitioner that she was an original owner in the village and being a co-owner in village shamilat she was also co-owner in the "kassi" which runs adjacent to the suit land and that respondent No,1 could also only prove the pre-emptive right of contiguity, hence the right of both of them being equal the suit should have been dismissed.
However, this contention is devoid of force. A 'kassi' is a rain water channel. It carries water only when there is sufficient rain and water flows down. Otherwise for most of the period a "kassi" is dry and it imostly used as a thoroughfare. The share in a 'kassi" can neither be alienated nor it can be partitioned. As such a person claiming co-ownership in a 'kassi' cannot be held to be a proprietor of the same. A 'kassi' is altogether different from a 'lakhti'. The latter is a water channel carrying water meant for irrigation of lands. Such a water channel is capable of being alienated and owner of land contiguous to such an irrigation water channel can also alienate the portion of such water channel in his possession. However, a co-owner in a 'kassi' cannot exclusively possess any portion thereof nor such a portion is capable cf being alienated. It has been held in the case of Syed Alam v. Rabia Gul (1981 SCMR 59) that a co-owner in an unpartitioned 'lakhti' is considered to be a co- owner to every inch of the 'lakhti'. However as already stated 'lakhti' is quite different than a 'kassi'.
The same view was taken in the case of Ahmed Khan v. Sattar Din (PLD 1981 SC 148). It was held in the case of Mughal Baz Khan v. Sher Afzal Khan (PLD 1976 Pesh.19) that a person claiming co- ownership in thoroughfare situated in shamilat of village could nct be treated as owner of property as contemplated by section 12 of the N.-W.F.P. Pre-emption Act, 1950 and such person could neither claim a right cf pre-emption with respect to sale of land situated by thoroughfare nor defeat superior right of pre-emption claimed by another on basis of contiguity It is admitted that when a 'Kassi' is dry it is generally used as a throughfare and no one can claim exclusive ownership in a thoroughfare. The question of ownership had arisen before the Supreme Court in the case of Sikandar v. Sultan Muhammad (PLD 1974 S.0 .11) where right a pre-emption was claimed on the basis of a house contiguous to the house pre-empted on the basis of 'Haquq-e-Bashindgane Dawani' but the Supreme Court came to the cdnclusion that right of permanent residence did not mean right of ownership. This opinion was based on a judgment of the East Pakistan High Court in the case of Syed Sayeeduddin Ahmed v. Haji lunus Mia (PLD 1960 Dacca 416). In this judgment a thorough discussion was made about the connotation of the word 'milk' and then it was held that where pre-emption was claimed the pre-emptor must have the milkiat or ownership in the property on account of which he claimed the right cf pre-emption. The milkiat or ownership of any person in a property would only be complete and absolute if that person has got the right to alienate or part with that property and if he does not enjoy that right, then he cannot be considered owner or malik of that property.
3. It shall thus be seen that the petitioner could not claim any exclusive right of ownership in the 'kassi' which was running adjacent to the suit land and it was also proved that the pre-emptor respondent No,1 was owner of land contiguous to the suit land. I, therefore, do not find any material to arrive at a conclusion different than the one arrived t by both the learned lower Courts. Finding no merit in this revision petition I will dismiss it with no order as to costs.