1. HAMOODUR RAHMAN, C. J.-This appeal by special leave arises out of a suit for possession by pre- emption of a house situated in the Abadi of Chikia, Tehsil Mansehra, district Hazara, filed by the appellant herein claiming a superior right of pre-emption under section 12 of the N.-W. F. P. Pre-- emption Act of 1950, on three grounds, namely :-
(i) As a co-sharer in such property ;
(ii) as a participator in immunities and appendages, such as a right of way or a right to discharge water; and
(iii) as owner of contiguous property.
2. The house sought to be pre-empted was owned by one Mohammad Anwar who sold it to respondent Sultan Mohammad by a registered deed of sale executed on the 10th of August 1964 ostensibly for a consideration of Rs. 1,500 as specified in the deed. The appellant, however, claimed that this was a fictitious amount and, in fact, the sale transaction took place for Rs. 500 only.
3. The suit was resisted by the respondent-purchaser who denied the appellant's superior right of pre-emption and claimed that the transaction was exempt from pre-emption, and that the appellant was estopped from bringing the suit for pre-emption. He also claimed that the consideration for the sale was Rs. 1,500 as mentioned in the deed, and, therefore, the suit had not been properly valued either for the purposes of court-fee or jurisdiction.
4. During the course of the trial, two Commissioners were appointed to survey the property in dispute.
5. The report of the first Commissioner was set aside but the objections to the report of the second Commissioner were overruled and the report along with the site-plan prepared by the second Commissioner were duly proved and relied upon.
6. It appears that before the Commissioner, the respondent himself had admitted that the appellant owned the contiguous house. The trial Court, relying on this admission, the recital in the sale-deed itself showing the appellant's house on the southern boundary of the property sold and the oral evidence of the plaintiff, came to the conclusion that the property sought to be pre-empted was not only adjacent to the property owned by the appellant but even the beams of one house rested on the walls of the other house. The trial Court also found that the appellant had to pass through the courtyard of the house sought to be pre-empted in order to reach his own house and there was no other path which might give him access to his own house.
7. The trial Court did not, however, accept the appellant's claim that he was a co-sharer in the suit house although it found that the property of the appellant as well as the property sought to be pre- empted both originally belonged to one Jewan.
8. The contention that the appellant was not the full owner of the contiguous house but merely had a right of permanent residence therein was repelled and it was held that since the ownership column of the Abadi Register was torn and it was not possible to ascertain from any other record the name of the owner, the person in actual physical possession for the past 30 or 40 years could well be presumed to be the owner of the property having a right to pre-empt the adjoining property.
9. The trial Court also held that the price paid by the respondent for the purchase of the house sought to be pre-empted was Rs. 1,500 and, therefore, the appellant should make up the deficiency not only in court-fees but also in the deposit of the pre-emption money.
10. The suit was, accordingly, decreed in favour of the appellant and he was given 15 days' time to make up the deficiency in court-fees. It appears that before the decree was passed he had already deposited in Court the sum of Rs. 1,500 being the pre-emption money.
11. The respondent went up in appeal against this judgment and the appellant also filed cross- objections against the finding regarding the consideration for the sale. The learned Additional District Judge, Hazara, dismissed both the appeal and the cross-objections and confirmed the findings of the trial Court.
12. The respondent went up in second appeal to the then West Pakistan High Court, Peshawar Seat, and a learned Single Judge of the said Court reversed the decisions of the Courts below on firstly the ground that Haquq-e-Bashindgane Dawami (rights of permanent residence) did not confer the rights of full ownership, and, therefore, the appellant had under section 12 of the N.-W. F. P. Pre- emption Act, no superior right of pre--emption as owner of contiguous property to pre-empt the property in dispute. The learned Judge in the High Court was secondly of the view that the concurrent findings of the Courts below with regard to the appellant's claim of being a participator in the immunities and appendages was based on a misreading of the evidence as the Court below had failed to notice that the pre-emptor himself had in his evidence nowhere stated that the path, over which he claimed a right of way, actually passed through the courtyard of the house sought to be pre-empted. All that he stated was that it was a path "in front of the house in dispute".
13. The appellant was granted leave to consider firstly, as to whether the High Court was justified in interfering in second appeal with the concurrent findings of the Courts below with regard to the location of the passage over which the appellant claimed a right of way, and secondly, as to whether it was right in holding that a right of permanent residence in the contiguous house was not sufficient to enable the possessor of such a right to maintain a suit for the pre-emption of the adjoining property.
14. The learned counsel appearing in support of this appeal has, of course argued that the High Court had no jurisdiction in second appeal to interfere with the concurrent findings of fact. But, it must be pointed out that the question as to whether a mere right of permanent residence was sufficient to give the person, having such a right, a superior right of pre-empting the sale of a contiguous property is a question of law pure and simple, and, therefore, so far as this question is concerned, the High Court had in second appeal every jurisdiction to go behind it. Whether it has taken a right view of the law or not is a different matter.
15. The learned counsel appearing in support of the appeal has placed strong reliance on the judgment of a learned Single Judge of the Dacca High Court in the case of Syed Saeed-ud-Din v.
16. Haji lunus Mia (PLD 1960 Dacca 416which seems to support the view that the right of pre-emption under the Mohammadan Law is not limited to persons in full proprietary ownership of the pre- emptive property and that the word "milk" under the Mohammadan Law covers a wide range of ideas and is not necessarily confined to mere proprietary rights. By this decision, the Dacca High Court actually held that where both the pre-emptor and the vendor were raiyats under the Bengal Tenancy Act, they had such rights in the land which entitled them to claim pre-emption and, therefore, the sale of a jote right, which is a riyati right is pre-emptiable.
17. As against this the Patna High Court has consistently held that the right of pre-emption does not extend to the transfer of Moqarari tenancy interests because the pre-emptor must have the Milkiat or ownership in the property on account of which he claims the right of pre-emption, vide Mohammad-A Jamil and others v. Khub Lal (AIR 1921 Pat. 164), Dhirakshan Singh v. Triloki Prashad Singh and others (AIR 1923 Pat. 217and Phul Mohammad Khan and another v. Qazi Kutabud-- din (AIR 1937 Pat. 578 All these decisions follow the dictum of Mahmood, J., in the case of Sakina Bibiv. Amiran and others (1 L R 10 All. 472which has been relied upon by the High Court in its judgment under appeal. The title-deed (Exh. P. Z pertaining to the property of the pre-emptor clearly describes the right conveyed as Haquq-e-Bashindgane Dawami, which is certainly not a full B proprietary interest. It appears that the appellant also, in his statement before the trial Court, merely described his property as his Maqbuza Makan and not as Makan-e-Mamluka.
18. The procedure adopted by the trial Court of drawing a presumption in favour of the pre-emptor merely because he was in possession of the property for the past 30 or 40 years was wholly unwarranted. Even if the owner--ship column in the Abadi Register was torn there was still the recital in the preemptor's own title-deed which clearly rebutted the presumption that title followed possession.
19. The ratio of the Dacca decision was that since a Vote' right under the Bengal Tenancy Act is a permanent, heritable and transferable right it makes the holder of such a right in every sense an owner subject only to the payment of the fixed rent to the landlord. The holder of such a `Vote' right has, therefore, also the right to pre-empt the transfer of an adjoining Vote' particularly, since the principle of reciprocity is not thereby violated.
20. "So the plaintiff'", observed the Dacca High Court, "has all the requisites of `Milk' and 'Malik' mentioned above for the purpose of Shuffa or right of pre-emption and, as the plaintiff and the vendor, both being radiates under the Bengal Tenancy Act have got the ownership in the land on account of and in respect of which pre-emption is claimed, he is entitled to get pre-emption". neighbor owning the adjacent property".
21. It is worth noting that the learned Author himself uses the word "owning" and not "having the milk" over the adjacent property. Again the learned author has quoted the Hedayat and the Majallah as authorities for his views. According to the Majallah, Chapter 111, Sec. II, Art. 1018 :- "It is a condition also that the property, in respect of which the right is claimed, should be milk property.
22. Therefore, when a milk property is sold, the Mutawalli or possessor of immovable waqf, which adjoins, cannot have a right of pre--emption."
23. Book VII, page 475) there are six conditions laid down for the enforcement of this right o pre-emption and the sixth condition is as follows :- "There must be milk or ownership of the Shufee, or pre-emptor, at the time of the purchase, in the mansion on account of which he claims the right of pre-emption."
24. The Dacca High Court took the view that this condition was confined to the case of pre-emption of a mansion but a full Bench of the Bombay High Court in the case of Dhashratlal Chhaganlal v. Bai Dhendubai (AIR 1941 Bom. 262did not think that there was any such justification to confine it only to house property, because, otherwise there would be no reciprocity which is essential for the exercise of the right of pre-emption. We are inclined to agree with the Bombay view which was in fact applied by the Dacca High Court in the case before it by holding that the holder of a jote right, under the Bengal Tenancy Act, was, as observed by the Privy Council in Katayain Debi v. Uday Kumar Das (I L R 52 Cal. 417), virtually "the proprietor of the surface of the land subject only to the payment of the stipulated rent and the lessor and the succeeding landlords have no interest in the land except in so far they form a security for payment of rent".
25. We are, therefore, of the opinion that the High Court rightly held that the appellant did not possess a sufficiently superior right of pre-emption on this ground to claim the right of pre-emption of the adjoining property.
26. We come now to the second ground, namely, the right accruing by reason of participation in the immunities and appendages. This stands on a higher footing than ownership of contiguous property under section 12 of the N.-W. F. P. Pre-emption Act, 1950. On this point both the trial Court and the Court of first appeal had come to a concurrent finding relying on the oral evidence, the Commissioner's report and the documentary evidence that the passage to the house of the pre- emptor led through the , courtyard of the house of the respondent. This was a finding of fact arrived at on a proper consideration of the evidence and it could not be interfered with in second appeal by the High Court. The High Court had, in our view, itself misread the evidence of the plaintiff. His statement that his passage passes from in front of the house sought to be pre-empted had to be read along with the statement in the plaint that the passage passed through the said house and the admission of the respondent before the Commissioner that the passage was common. The High Court had, therefore, not taken into account the other evidence at all in coming to the conclusion that the findings of the Courts below suffered from a misreading of the evidence. We are unable to agree with the High Court that the concurrent findings of the trial Court and the Court of first appeal suffered from any such defect. On this ground, therefore, we are of the opinion that this appeal should succeed.
27. The appeal is, accordingly allowed and the judgment and decree of the High Court set aside and those of the Courts below restored.
28. There will, however, be no order as to costs as the success is divided.