1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Peshawar Bench, Peshawar, in R. S. A. No. 447 of 1970, dated the 11th December 1970. By this judgment, the second appeal was dismissed in limine.
2. The dispute between the parties is in respect of Khasras Nos. 6636, 6637, 6638, 6640, 6641 and 6639, situated in Wand Raja in village Zarobi, Tehsil Swabi, District Mardan, mutation No. 1309 attested on the 21th March, 1968, vide copy Exh. P. W. 1/2. The above property was sold for an ostensible consideration of Rs. 1,50,000 in favour of Said Karim Shah appellant. Respondent Taj Muhammad of village Zarobi, instituted a suit for pre--emption in respect of the above-mentioned land. The plaintiff based his right of pre-emption on the basis of contiguous land with the land in dispute. He also alleged that the property in dispute was sold for Rs. 24,00 but fictitious price of Rs.
3. 1,50,000 was mentioned in the mutation. Said Karim Shah appellant contested the suit. On the pleadings of the parties, the following issues were framed :-
(1) Whether civil Court has got jurisdiction to try this suit ?
(2) Whether the price of Rs. 1,50,000 has been fixed and paid in good faith ?
(3) Whether the plaintiff has got superior right of pre-emption ?
(4) What is the market value of the suit land ?
(5) Relief.
4. The learned Civil Judge, 2nd Class, Swabi, tried the suit. Issue No. 1 was not pressed before him. On issues Nos. 2 and 4, his finding was that Rs, 1,50,000 had been fixed in good faith or paid and that Rs. 72,000 was the market value of the suit land. On issue No. 3, he held that the plaintiff had not got the superior right of pre-emption. He observed that Khasra Nos. 6636 to 6641 are contiguous to one another and that the plaintiff is the owner of Khasra No. 6642 which is contiguous to Khasra No. 6641. He relied on the judgment of the Peshawar High Court in Qalandar Khan v. Hafiz Qazi Pir Muhammad Khan (PLD 1956 Pesh.), in which it was held that for the purposes of pre-emption each Khasra number is to be considered separately, even though a number of them have been purchased by means of one transaction and are contiguous to each other. The pre--emptor must have his right based on contiguity in respect of each and every Khasra number before he can succeed. On this view, he held that the pre-emptor's land bearing Khasra No. 6642 being contiguous only to Khasra No. 6641, out of the other five Khasra numbers sold together by one sale, the vendee gains equality in the right of pre-emption with the pre-emptor. Accordingly, he dismissed the suit on the 9th March 1970. Taj Muhammad respondent challenged this order in appeal before the Additional District Judge, Mardan. The appellant also fled cross-objections in respect of the finding of -the trial Court on issues Nos. 2 and 4. The First Appellate Court disposed of the appeal and the cross-objections by judgment, dated the 29th July 1970. He reversed the finding of the trial Court on issue No. 3 in the light of the latest decision of the Full Bench of the Peshawar High Court in Muhammad Yusuf v. Sikandar (PLD 1970 Pesh. 160). In that case, it was held as under "In order that a person may pre-empt the salt of a block of land comprised in different Khasra numbers, it is not necessary that he should have his property contiguous to all the Khasra numbers and that if his property was contiguous to any part of the block or parcel of land though comprised in a number of Khasras, he will have the right to pre-empt the entire land comprised in the Khasra numbers."
5. The finding of the trial Court in respect of the market value of the property in dispute was also reversed. He fixed the, market value of the land at Rs. 82,560. On these findings, the appeal was accepted and Taj Muhammad plaintiff-respondent was granted a decree for possession of the property m dispute on payment of Rs. 82, 560 against the defendant--appellant.
6. The matter was taken in further appeal before the former High Court of West Pakistan, Peshawar Bench, Peshawar, on the question of market value of the property and of the superior right of pre-emption of the plaintiff-respondent on the basis of his land with the parcel of the property in dispute. A learned Single Judge of the High Court held that the appellant could not challenge the merits of the decision of the appellate Court on issue No. 3. He also held that the finding of the Additional District Judge on th question of market value of the property cannot be disturbed in second appeal. In this view of the matter, the appeal was dismissed in limine.
7. The appellant filed petition for special leave to appeal and leave was granted to him to consider the question whether the view expressed by the Full Bench of the Peshawar High Court in Muhammad Yusuf v. Sikandar is warranted by the plain language of section 12 of the N.-W. F. P. Pre- -emption Act, 1950 (Act XIV of 1950), and that it is against the long string of authorities in which the view adopted in Qalandar Khan v. Hafiz Qazi Pir Muhammad Khan was expressed by the Judicial Commissioner's Court. The second ground on which the leave was granted is that since the market value of the land was fixed by the trial Court at Rs. 72,000 an appeal from his judgment and decree lay to the High Court and not to the Court of the Additional District Judge.
8. Mian Mahmood A.I Qasuri, learned counsel for the appellant has not pressed the second point on which the leave was granted. He has confined his argument only on the question whether the view expressed in Muhammad Yusuf v. Sikandar is in conformity with section 12 of the N: W. F. P. Pre-- emption Act, 1950 or whether the view expressed in Qalandar Khan v. Hafiz Qazi Pir Muhammad Khan should be declared as correct. It will be noticed that the right of pre-emption in respect of the agricultural land is derived from section 12 of N.-W. F. P. Pre-emption Act, 1950, which is reproduced below :- "Section 12. Persons entitled to pre-empt.-The right of pre-emption in respect of agricultural land, village immovable property and urban immovable property shall vest firstly, in the co-sharers in such land or property, if any ; secondly, in a participator in immunities, appendages, such as a right of way or a right to discharge water ; thirdly, in owners of contiguous property, if any ; fourthly, in a landlord when the same is by an occupancy tenant of his right in tenancy."
9. The third clause of this section confers right of pre-emption on owners of contiguous property, if any. This clause has been the subject-matter of interpretation in several cases of the Judicial Commissioner's Court, Peshawar and the West Pakistan High Court, Peshawar. In Abdul Khaliq v.
10. Ghulam Sarwar (Civil Revision No. 206 of 1954, decided on the 12th December 1955, it was held in that case that each Khasra number being distinct, if a suit is brought on the ground of vicinage, for possession by pre-emption of several Khasra numbers, the plaintiff must prove that he has property contiguous to each one of them, and if he fails to do so, his suit qua the Khasra numbers with which he has no contiguous property, must fail. In this connection, it was observed as under :- "The word contiguous is not defined in the Pre-emption Act. Its dictionary meaning is touching; adjoining. In order to be covered by this definition, one property must touch the other property, and if it does not, then it cannot be said that it is contiguous to that particular property. The plaintiff in this case has his property touching Khasra No. 330, but he has no property which touches Khasra No. 331. Consequently, it cannot be said that by reason of the fact that this property touches one Khasra number out of the two Khasra numbers sold, he should automatically be held as having property touching both the Khasra numbers sold. In this particular case it so happens that the two Khasra numbers sold are contiguous to each other, but supposing if by one sale-deed several Khasra numbers are sold and all of them do not touch one another it would be ridiculous to say that simply because all these Khasra numbers are sold by one deed, therefore, the plaintiff by holding his property contiguous to one Khasra number should be held to hold property contiguous to all the Khasra numbers sold."
11. This view was affirmed in Qalandar Khan v. Hafiz Qazi Pir Muhammad Khan by a Division Bench of the Judicial Commissioner's Court, Peshawar. It was observed in this case as under :- "It may be incidentally pointed out here that this Court has consistently held the view that for the purpose of pre-emption each Khasra number is to be considered separately, even though a number of them have been purchased by means of one transaction and are contiguous to each other, and the pre-emptor must prove his right based on contiguity in respect of each and every Khasra number before he can succeed."
12. This view was further affirmed in Ghulam Mohayuddin Khan v. Ghulam Qasim (PLD 1957 Pesh. 36).
13. It was held in this case as under :- "Each Khasra number being distinct, if a suit is brought on the ground of vicinage, for possession by pre-emption of several Khasra numbers, the plaintiff must prove that he has property contiguous to each one of them, and if he fails to do fails so, his suit qua the Khasra numbers with which he has no contiguous property, must fail."
14. Similar view was expressed in Sultan Muhammad v. Muhammad Yusuf (PLD 1959 Pesh. 120) and Zahuruddin Khan v. Shahalam Khan (PLD 1959 Pesh. 148).
15. The soundness of the views expressed in the above-mentioned cases, was doubted by a learned Single Judge of the West Pakistan High Court Peshawar and by order dated the 26th May 1967, he referred the following question to be resolved by a Full Bench :- "Whether on the true interpretation of the expression `contiguous property' so far it relates to agricultural land, is it a pre-requisite qualification that a pre-emptor must own land contiguous to all Khasra numbers sold under sale or the right of pre-emption would accrue to him even if he owns land contiguous to one of the several Khasra numbers?"
16. This question came up for consideration in Muhammad Yousuf v. Sikandar (PLD 1970 Pesh. 160).
17. They recast the precise question which arose for consideration before them as under :- "When a compact block of land comprising more than one Khasra number which adjoin one another is sold, does the right of pre--emption of the owner of a property which is contiguous to only one of the Khasras, extend under section 12; clause thirdly of the N: W. F. P. Pre-emption Act to the entire block of the land."
18. The learned Judges of the Full Bench answered this question in the following words :- "In our opinion, in order that a person may pre-empt the sale of a block of land comprised in different Khasra numbers, it is not necessary that he should have his property contiguous to all the Khasra numbers and that if his property is contiguous to any part of the block or parcel of land though comprised in a number of Khasra, he will have the right to pre-empt the entire land comprised in the Khasra numbers."
19. It will thus be noticed that there are conflicting views on the interpreta--petition of clause (iii) of section 12 of the N.-W. F. P. Pre-emption Act, 1950.
20. Mr. Mahmood A.I Qasuri, learned counsel for the appellant, has supported the view expressed in Qalandar Khan v. Hafiz Qazi Pir Muhammad Khan, Ghulam Mohyuddin Khan v. Ghulam Qasim, Sultan Muhammad v. Muhammad Yousuf and Zahuruddin Khan v. Shahalam Khan. On the other hand, Mr. S. M. Zafar, learned counsel for the respondent has supported the view in Muhammad Yousuf v. Sikandar.
21. The most important point for consideration in this case is about the precise nature and scope of Khasra and field bearing a distinct number. In the earlier decisions of the Peshawar High Court, it was taken for granted that each Khasra is a separate property and has to be pre-empted as such.
22. This point was considered in detail by the Full Bench of the Peshawar High Court in Muhammad Yusuf v. Sikandar. According to them, the holding of a land which compromises in it a number of fields bearing different Khasras numbers remains one property and not that it has as many properties as there are Khasra numbers. In this connection, they observed as under :- "The ownership of an agricultural land is called'"a holding", "a khewat" or a "Khata". If a person has one holding in one village he is owner of one property. If he has more than one Khata or holding in a village, he is the owner of more than one property. On the contrary, if a holding comprises more than one Khasra number, he still remains the owner of one property, and does not become owner of as many properties as there are Khasra numbers. This position is manifested from the laws relating to the agricultural lands. The word "holding" was defined in subsection (3) of section 3 of the Punjab Land Revenue Act to mean "a share or portion of an estate held by one land-owner or jointly by two or more land owners". The same is the definition of the word "holding" in the laws applicable in the Province of Frontier."
23. They got support for this view from the description of a Khasra or a field in paragfaph 242 of the Punjab Settlement Manual by Sir James M. Douie (Fifth Edition) which is as under :- "A parcel of land to which separate number is assigned in the map. The fixing of the limits of fields for survey purposes is a question to be decided on grounds of convenience, the chief matters for consideration being the use to be made of the maps in the half-yearly crop-inspection. Usually any parcel of land lying in one spot in the occupation of one person or several persons jointly, and held under one title, should be treated as a single field."
24. The learned Judges in the Full Bench case also referred to the analogy of a house consisting of more than one room and observed that "suppose a vendee sells a portion of the house and that portion adjoins the house of the pre-emptor he will have the right to pre-empt the entire portion though consisting of more than one room, some of which are not contiguous to his house."
25. Incidentally, this question was also considered by Chevis, J. In Sanwal Das v. Gul Prashad ((1909) 90 P R 340). The learned Judge observed as under :- "Take again the case of a man selling fields. Under the old law a man could sometimes claim to pre-empt by reason of a special custom entitling him as owner of adjoining fields to pre-empt. The sale--deed would usually give the Khasra numbers. Could he only claim to pre-empt the Khasra number sold which immediately adjoined his own land? Could he not rather say he claimed to go on and pre-empt so much land as lay in a ring fence adjoining his own ? Two fields may at any, time be thrown into one or subdivided into more than one and Khasra numbers are subject to change at least at every settlement. In my opinion wherever the right of pre-emption depends on contiguity, a plaintiff can claim to pre-empt so much as lies in a ring fence adjoining his own property ; he is only stopped when he comes to something which is entirely cut off from his own property by reason of property intervening which, whether it belongs to the vendor or to any one else, is not included, in the sale-deed."
26. Under the Mahammadan Law also, the view is that the right of pre-emption extends to agricultural estates and is not merely confined to urban properties or small plots of lands. In Ameer A.I's Mahommedan Law, Volume I (2nd Edition), at page 595, it is stated as under :- "It has been held that the right of pre-emption extends to agricultural estates and is not merely confined to urban properties or small plots of lands. And though the right founded on the basis of vicinage has been limited by the Courts in this country to parcels of land and houses, such a right founded upon actual coparcenary has been held to apply to villages or large estates."
27. Baillie's enunciation of the Muhammadan Law on the point is as under :- "If part of the purchased property be separate and distinct from other part of it, as, for instance, when two mansions are purchased by one bargain, the pre-emptor cannot take one of them without the other, if he is shufee or has a right to the pre-emption of the two together. He must either take or leave both; and that, according to `our' three masters, whether the mansions are adjacent to or separated from each other, and whether they are situate in one or two cities. Where he is the shufee of only one of the mansions, it is reported as from Aboo Huneefa that he cannot take more than that to which he is neighbour. And there is the like report as from Moohummud. But Husn has reported, as from Aboo Huneefa, that the pre-emptor may take the whole under his right of pre-emption. And this appears to indicate, according so another authority, that Aboo Huneefa was originally of the same opinion as Moohummud, but that he afterwards changed his opinion and came to treat the whole as one mansion."
28. Earlier, the same learned Author stated :- "When a pre-emptor wishes to take one part of a purchased property without another, and the part is not distinct or separate, as, for instance, when the purchased property is a single mansion, and the pre-emptor desires to take that part of it which abuts on his own premises, without the remainder, he cannot do so, without any difference of opinion among `our' masters; for if he were to take one part without the other, he would be dividing the contract as against the purchaser. He must, therefore, either take or leave the whole whether the purchase be by one person from one, or by one from two or more persons."
29. A page 475, the same learned Author has stated as under :- "The original meaning of shoofa is conjunction. In law, it is a right to take possession of a purchased parcel of land, for a similar (in kind and quantity) of the price that has been set on it to the purchaser. The cause of it is the junction of the property of the shufee, or person claiming the right with the subject of purchase."
(1) a co-sharer in the property (shafi-i-sharik) ;
(2) a participator in immunities and appendages, such as a right of way or a right to discharge water (shafi-i-khaht) ; and
(3) owners of adjoining immovable property (shaft-i jar), but not their tenants, nor persons in possession of such property, without any lawful title. A Wakif or mutawalli is not entitled to pre- empt, as the Wakf property does not vest in him.
30. The first class excludes the second, and the second excludes the third. But when there are two or more pre-emptors belonging to the same class, they are entitled to equal shares of the property in respect of which the right is claimed. (Baillie, 500).
31. Exception.-The right of pre-emption on the third ground, viz., that of vicinage does not extend to estates of large magnitude, such as villages and zamindaris, but is confined to houses, gardens, and small parcels of land. The right, however, may be claimed by a co-sharer."
32. "The argument of learned counsel for the vendee-respondents was that the right of pre-emption being a weak right and the right to claim pre-emption on the ground of vicinage being the weakest, it should not be extended to claims in respect of plots so big as the plots in the present case covering an area of 4 bighas and 5 biswas. It appears to us, however, that there is no justification for restricting the right of pre-emptor on the ground of vincinage, to plots or gardens adjoining houses. The right of pre-emption extends to plots and gardens whether they adjoin houses or not. The plots in dispute constitute one grove in which there is a small graveyard. It cannot be said that this is an estate within the meaning of the decision of the Full Bench in 6 Beng, L. R.
41. The property in dispute is not a share in a village or in a Mohal. The vendor was the exclusive proprietor of the specific plot sold. 4 bighas and 5 biswas area is not so big as to be taken out of the category of cases in respect of which the right of pre-emption on the ground of vicinage extends. In our opinion, the plaintiff is entitled to pre-empt."
33. PLD 1963 Dacca 939), a Division Bench of the Dacca High Court observed as under :- "We find considerable force in the argument of Mr. Behtar A.I, the learned counsel for the petitioners. He deposited the entire amount of consideration money claiming pre-emption in respect of whole of the land ; but as he failed to prove contiguity of his land to the three plots, he thought it was better for him to give up those plots, apprehending that he may not get pre- emption in respect of those lands. But that is not the position in law. It is no doubt true that pre- emption must be for the whole of the land transferred and there cannot be any partial pre- emption. But so far as the holder of the land contiguous to the land transferred is concerned, the section nowhere says that he must be contiguous to all the lands or plots of land transferred, particularly, in view of the constitution of holding in this part of the country which generally does not form a compact block but consists of different parcels of land scattered over a field or fields in one or more villages. The Legislature could not have intended that contiguous holder on whom right of pre-emption has been given should have contiguity in respect of all the lands sold. It is clear from the fact that it has been made incumbent that all the contiguous holders of land should be impleaded as parties to the pre-emption proceedings so that every contiguous holder may get their legitimate share in the pre-emption. But suppose the other contiguous holders are not claiming any pre-emption or they failed to claim any pre-emption within the time allowed as in the present case, then does it necessarily follow that the claim of pre-emption of the whole of the land transferred by a holder of land contiguous to only a portion of the land transferred should fail or should it fail in respect of the other lands transferred ? In that case, would it not be a partial pre- emption which is contrary to law and principle of pre-emption? On the other hand, if it is held that land contiguous to the land transferred means contiguity to the whole of the land transferred, then one who has contiguous to one side or one of several plots of land transferred shall have no .Right of pre-emption. This would be against the provision of section 96 of the East Bengal State Acquisition and Tenancy Act, 1950. From the construction of the whole section this cannot be inferred, until and unless we read something which is not in the section."
34. The most important case on this point is the case of Abdul Shakur v. Abdul Ghafur (6 I C 358). In that case, the three adjoining plots of land were sold. By one sale. The plaintiff was a sharer in another plot which adjoined only one of the three plots sold. He sought to pre-empt on the ground of vicinage. It was held that as the three plots, the subject-matter of the suit, went to make up one entire parcel of land which adjoined the plaintiff's land, he had the right to pre-empt all the three plots. In this connection, a Division Bench of the Allababad High Court observed as under :- "We are unable to agree with the learned Judges in the view thus expressed. The subject-matter of the sale was a parcel of land which for convenience of cultivation or some other reason was divided into three small plots. This parcel of land adjoins the plaintiff's land and has been sold as an integer. It comprises but a small area. We see no good reason for so disintegrating the integer so sold as has been done by our learned colleague, and for holding that Plot No. 836 alone and not also Plots Nos. 833 and 834 adjoin Plot No. 837. Baillie in his work on Muhammadan Law (2nd Edition at p. 475) defines the right of pre-emption in the following terms "The original meaning of shoofa is conjunction. In law it is a right to take possession of a purchased parcel of land for a similar (in kind and quantity) of the price that has been set on it to the purchaser. The cause of it is the conjunction of the property of the shafee or person claiming the right with the subject of the purchase." In Vol. III of Hamilton's Hedayat (at p. 591), it is stated that shoofa takes place with regard to all lands or houses, and the author adds: Besides, according to our tenets the grand principle of shoofa is the conjunction of property and its objects to prevent the vexation arising from a disagreable neighbour and this then is of equal force whether the thing is divisible or otherwise."
35. Now if the grand principle of shoofa is the conjunction of property and its object is to prevent vexation arising from a disagreeable neighbour, it is clear that the object in this case would be frustrated if the decree of the learned Judge of this Court were affirmed. According to that decree the plaintiff would, no doubt, have his borders extended by the inclusion in his land of part of Plot No. 836 but he would be left in the same predicament as that in which he was before pre-emption, namely that he will still have the vendees as neighbours. In our opinion with all deference to our learned brother, the subject-matter of the sale being the entire parcel of land made up of three plots-and this parcel of land adjoins the plaintiff's land-the entire subject-matter of the sale should be held to adjoin the plaintiff being entitled to pre-empt that by right of vicinage, he is entitled to pre-empt the entire subject-matter of the sale and not merely a part."
36. After careful consideration of the point involved in this matter, I am of the opinion, that the sale of a parcel of land comprised in more than one Khasra numbers will not be the sale of as many properties as there are field numbers, but will be only of one property represented by that parcel of land.