' In this petition moved under section 115, C.P.C. Mst.Amina and her husband Allah Ditta assail the judgment and decree passed by the Additional District Judge, Haripur on 15-4-1987 in Appeal No.42/13 of 1986 and that of the Civil Judge, Haripur dated 9-7-1986 whereby pre-emption Suit No.172/1 of 1984 filed by Haji Khan respondent was decreed against the petitioners.
2. On the foot of Mutation No.6954 dated 22-3-1983 Ghulam Haider Khan s/o Khani Zaman Khan, a resident of village Bhiri Bandi sold an area of 8 Kanals 4 marlas of land comprised in fields Nos.2380 and 2424 to the petitioners for an ostensible price of ,,Rs.50,000. Haji Khan respondent pre-empted this sale being participator in immunities, appendages and owner of the contiguous property.
3. The suit was resisted by the vendees. The learned Civil Judge after settling issues arising out of the pleadings, recorded evidence pro and contra and while allowing the suit partially vide his judgment recorded on 9-7-1986 passed a decree for possession through pre-emption of the case land in favour of the plaintiff pre-emptor in respect of Khasra No 2424 on the basis of contiguity on payment of a 'sum of Rs.36,900. The plaintiff's suit with regard to Khasra No. 2380 did not succeed.
An appeal was taken by the petitioners before the Additional District Judge. The pre-emptor although did not move any appeal against the partial success of his suit but he filed cross- objections under Order 41 Rule 22, C.P.C. Against the determination of sale price at Rs.36,900. Both the appeal and cross-objections were dismissed by the learned appellate Court vide the impugned judgment. Hence this petition.
4. The suit land consists of two fields Nos.2380 and 2424. Field No.2380 measures 2 Kanals 1 Marla and 2424 6 Kanals 3 Marlas. None of the parties is co-sharer in this land. Respondent Haji Khan is an owner of Field No.2423 as the extract Ex.P.W.1/3 from the Jamabandi of 1968-69 indicates. This field is contiguous to suit Khasra No.2424 as shown in the Aks Shajra Kishtwar Ex.P.W.1/2. The pre- emptor has admittedly no contiguous land with Khasra No.2380. The Aks Shajra Kishtwar (Ex.P.W.i/2) further indicates that Khasra No. 2420 is also contiguous to the suit Khasra No.2424. An extract from the jamabandi for the years 1968-69 (Ex.P.W.1/D-2 and D/3) shows that Allah Ditta petitioner was exclusive owner of Field No.2420 measuring 14 Kanals 6 Marlas which he had transferred in favour of his wife Mst. Amina and daughter Mst.Razia on 16-12-1969 vide Mutation No.5048. So after the aforesaid transfer of the Field No. 2420 by Alla' h Ditta in favour of his wife and daughter on 16-121969, MstAmina and Mst: Razia became owners of the said property to the total exclusion of the petitioner No.2. As Mst. Amina had joined her husband with her in the joint purchase who had no right equal or superior to that of the preemptor, she by doing so had also lost her own right of contiguity against the preemptor within the meaning of section 19 of the N.-W.F.P.
Pre-emption Act, 1950. The learned trial Judge while giving his decision on issues Nos.1 and 7 framed in the suit has taken notice of this aspect of the case and there is also a passing reference as to this regard in para. No.5 of, the judgment of the Additional District Judge.
5. The learned counsel for the petitioners during his arguments before me has although criticized the approach of the two Courts below in respect of the application of section 19 of N.-W.F.P. Act XIV of 1950 to the case in hand but at the same time he has conceded, that although there was no issue on this point and no such objection had been raised in the pleadings but the plea being a legal one could be agitated. The learned counsel is, however, of the view that no rule of sinker could be applied in this case for the reason; that Allah Ditta who was exclusive owner of the land consisting of Fields Nos. 2378 and 2420 in Khata No.696 had although transferred the entire Khasra No.2420 to Mst. Amina and Mst. Razia on 16-12-1969 but he being still an owner in the remaining land comprised in Khasra No.2378 is a joint owner in Khata No. 696 with MstAmina etc. And thus a contiguous owner of the land involved in suit Field No.2424.
6. I am afraid this argument may not prevail. As stated before, the total land which is subject- matter of Khasra No. 2420 had been transferred by Allah Ditta in favour of his wife and daughter on 16-12-1969, i.e. Much before the institution of the present suit by Haji Khan respondent in the Civil Court on 22-3-1984. After this transfer of the entire land in Field No. 2420 measuring 14 Kanals 6 Marlas, Allah Ditta had divested himself of all rights of ownership in the said field which is quite a distinct entity from the land involved in field No.2378 measuring 3 Kanals 7 Marlas. The two fields are situate at a considerable distance from each other as the Aks Shajra Kishtwar Ex.P.W.1/2 shows.
Allah Dina petitioner in this situation and after the total divestment of his rights in the land transferred cannot beheld to be an owner of Field No. 2420 by any stretch of imagination no matter that the two fields fall in the same Khata wherein Allah Ditta is still an owner in the remaining land comprised in khasra No. 2378. The learned counsel in support of his contention has placed reliance on a judgment of this Court reported in PLD 1989 Peshawar page 179 which with utmost respect I say is distinguishable from the case in hand.
7. The second argument advanced by the learned counsel for the petitioners is, that the sale in dispute being divisible the suit could succeed only to the extent of the share purchased by Allah Ditta in case he is found to be a stranger in the joint purchase, and the doctrine of sinker is applied.
A perusal of impugned Mutation No.6954 dated 22-3-1983 (Ex.P.W.1/5) shows, that both Mst. Amina and Allah Ditta had jointly purchased the land measuring 8 kanals 4 marlas involved in Fields Nos.
2380 and 2424. Mst.Amina had purchased 7 shares in the said two fields while the share purchased by Allah Ditta is one. Allah Ditta in his statement recorded before the trial Court has stated that the sale price for the suit land had been paid on 22-3-1983 at the time of attestation of mutation No. 5954. The endorsement made by the revenue officer on 22-3-1983 on the Mutation also shows that the mutation was attested in `Jalsa-e-Aam' in presence of Allah Ditta vendee alone. The payment of sale money at Rs.50,000 in the impugned mutation had been mentioned in lump sum. There is nothing in the sale mutation indicating that Mst. Amina had shared the payment of proportionate price. The impugned transaction cannot be thus taken to be a divisible one for the mere reason that specific shares in the land had been purchased by each:, vendee. The inevitable result in this situation would be, that Mst.Amina in the suit purchase having equal right of contiguity to the pre- emptor had associated her 'husband in thc joint transaction who had no such preferential right and rule of sinker shall apply. Reliance has been correctly placed in this view of the matter on a recent judgment of the Supreme Court of Pakistan reported in PLD 1991 Supreme Court 130.
8. In the circumstances no case of jurisdictional error on the part of the lower forums has been made. I see no merits in this revision petition and dismiss C it with costs.