1. This second civil appeal from a judgment and decree of learned Additional Distract Judge of Jhang was by the plaintiff in a pre-emption suit. It was decreed in his favour by the learned trial Court on 4-2-1986 but on appeal by the vender-defendants, the decree was reversed on 27-4- 1988 by holding that superior right of pre-emption asserted by the plaintiff was not established.
2. Thereupon, a second appeal was, preferred by him in this Court.
3. Mst. Bismillah daughter of Ramzan was owner of 50 Kanals, 13 Marlas of land at Mm--a Bela- Chuntra of Tehsil and District, Jhang. It was a half share of Khata No.139 measuring 101 Kanals, 6 Marlas. By sale-deed registered on 9-7-1977, she sold her above land to Rahim Bakhsh son of Mian Chaughatta, Muhammad Bakhsh, Jan Muhammad and Ghulam Muhammad S/o Muhammad Ramzan for a sum of Rs-24,000. Muhammad Rafique appellant claimed pre-emption in respect of this said. He asserted his superior right on the grounds of being a near collateral of the vendor and co-sharer with her in the joint Khata. Pre-emption suit was instituted, an 8-6-1978, in the Civil Court at Jhang. Defendants submitted a joint written statement and resisted the pre-emption suit filed against them.
4. On 30-1-1979, the trial Court settled necessary issues for determination. These were correctly reproduced in the impugned judgment. Therefore. these need not be reiterated for avoidance of unnecessary repetition.
5. Parties gave evidence in support of the respective issues they were required to prove. Upon scrutiny of record, on 29-2-1984, the trial Court dismissed the pre-emption suit. It held that the appellant failed to establish his superior right of pre-emption on twin grounds viz. relationship and co---ownership. It further held that since required amount of court-fee was not paid on the plaint in time, the suit was barred by limitation. On 10-2-1985, appeal filed by the appellant was allowed by learned Additional District Judge, Jhang and the suit was remanded with the direction: "that after having allowed tinge, to the appellant for making up the deficiency is court-fee on the plaint of this case in accordance with law should decide all the issues framed in this case afresh, keeping in view the evidence on record produced by the parties." Earlier to it, the trial Court had dismissed the pre-emption suit on 23-11-1980 on account of bar of limitation because the proper court-fee was not paid .on the plaint within the prescribed period of limitation for a pre-emption suit. On 16- 6-1981, learned District Judge, Jhang had remanded the suit for trial of all the issues including the issues of court-fee and limitation after completing the evidence of the parties.
6. On 4-2-1986 the trial Court decreed the pre-emption suit in favour of the appellant, subject to payment of Rs.24,00.0 by a specified time in the decree. It was held that appellant was proved to be a collateral of the vendor and also co-sharer with her in the joint Khata, and, therefore, hard a better right of pre-emption qua the vendees. In appeal, finding on issue No.5 was up--set by learned Additional District Judge who upon re-analysis of record, found that both the qualifications asserted to support pre-emption were not established. In consequence, pre-emption suit was dismissed by the impugned judgment and decree dated 27-4-1988.
7. Though the suit was tried on number of issues in the trial Court but decision of the second appeal was confined to a solitary issue covering superior right of pre-emption only. As observed elsewhere, superiority of right of pre--emption was based on relationship to the vendor and co- ownership of the land in joint Khata. I shall first advert to the plea of co-ownership and postpone the consideration of the other plea till after its decision. Registered sale-deed Exht.D-1 showed that the vendor had sold a half share of 101 Kanals, 6 Marlas of land comprised in Khewat No.139, according to an extract of Revenue Record prepared by the Patwari on 7-7-1977. An extract from land records showing joint ownership of the land in the above Khata was not produced in evidence.
8. Furthermore, an extract from land-records relating to the period preceding the consolidation of holdings in the village was also not tendered in evidence. It was common ground that lands in Bela Chauntra were consolidated under the Consolidation of Holdings Ordinance, 1960 and joint Khatas of parties were separated from each other. It was agreed that the suit land was sold out of the joint Khata No.139. After separation of holdings in the process of consolidation, the holding of Mst.
9. Bismillah and her sister Mst. Akbari was kept joint in Khata No. 139 and that of the appellant with a few others was separated from it and put in a new Khata No. 138, as was evident from an extract of register Haqdaran-Zameen for the year 1981-82 marked Exh.P-1. Khatauni-Paimash for the year 1976-77 produced on file of the trial Court clearly showed that Mst. Aismillah and Mst. Akbari were the only two joint owners in Khata No.139. Appellant was not shown a co-owner with them in this Khata measuring 101 Kanals, 6 Marlas. The land sold presently fell in Khata No. 139 and the appellant was shown to have no share in it. It was true that Khatauni-Paimash of Khata No. 139 pertaining to the year 1976-77 was not tendered in evidence and marked an exhibit. Nonetheless, its presence on record of the trial Court could not be overlooked for deciding the plea of co---ownership. It was settled law that in order to succeed, a pre-emptor was obliged to maintain his superiority on three crucial stages i.e. the date of sale, date of institution of suit and the date of the decree by the trial Court. If at any of the above three stages, a pre-emptor was denuded of his superior qualification asserted by him, he must lose. The term co-sharer for purposes of pre-emption denoted a person who held an existing joint proprietary interest in an undivided property. It was a bilateral jural relationship between the persons owning a share in the undivided property. A pre-emptor who was once a co---sharer in the land sold but had ceased to be so at any of the above-noticed three stages by partition or otherwise of the undivided property could not be held to be a co-sharer for purposes of pre-emption and, therefore, could not claim pre-emption as such on this score. Under the heading "Definitions" section 2(f) , of Consolidation of Holdings Ordinance, 1960 defences, "consolidation of holdings" means the redistribution of all or any of the lands in an estate or sub- division of an estate so as to reduce the number of plots". In some respects, consolidation of holdings was akin to the partition of joint holdings.
10. Upon breaking up of joint Khatas between co-owners, the jointness of holdings was destroyed between them. It depended upon the result of consolidation, whether the new Khatas were kept joint or were separated between the previous co-owners. Therefore, if in the result of consolidation, Khatas were separated between the erstwhile co-owners and they were put in different Khatas henceforth, they ceased to be co-sharers. In the present case, share of the appellant in the previous Khata held jointly with the vendor was separated by the Consolidation Authorities and his land was amalgamated with his other-co-owners in Khata No. 138. Obviously, Khata Nos. 138 and 139 were distinct and separate holdings. In the process of consolidation, the appellant ceased to be co-sharer with Mst. Bismillah and also the vendees from her. Therefore, the qualification of co- ownership as a ground for pre-emption was lost at the intermediate stages of the pre-emption suit. Learned counsel for the appellant referred to the cases in Qaim Din v. Said Ahmad and another PLD 1967 Lahore 1171, Rashida Begum and another v. Ghulam Farid Shah and another PLD 1973 Lahore 637, Raja Shah and 38 others v. Nazar Hussain Shah and 16 others PLD 1976 Lahore 658 to contend that consolidation of holdings was not destructive of the appellant's superior right of pre-emption grounded on the plea of co-ownership. His contention was that consolidation of holdings not withstanding, appellant was entitled to follow the substituted consolidated holding. In my opinion, the contention was based on an incorrect approach and principle of law deducible from the cases relied upon was inapplicable for sustaining the continued retention of superior right of pre-emption on ground of co-ownership. On separation of joint Khata between the appellant and Mst. Bismillah, he ceased to be a co-owner with her. Therefore, the plea of co---ownership was not sustainable at his instance. Even in case of Qaim Din (at page 1186), the learned Judge noticed; "secondly, all that these cases lay emphasis is on the loss of the preferential qualification, rather than on the nature or the replacement of the pre-empted property." In paragraph 5 of the Report, the learned Judge observed, "A plaintiff-pre-emptor in a case like this, where it is established as to which land the vendee has got in lieu of his old land can follow the new land in the hands of the vendee if otherwise he retained the qualification of a preferential-pre-emptor. In the present case, the plaintiff claimed pre-emption on the basis of being a co-owner in the Patti. If this qualification was fulfilled, then the plaintiff will not lose his right because his case is that the new land still exists in the same Patti in which the old land was and in which he was still the owner". A fortiori, principle of law being laid down in the judgment was about the effect of replacement of pre-emptive property, rather than loss of preferential right of pre-emption. It was obvious that the land had been divided. That the separated land was a portion of land which once was jointly held by the appellant with the vendor gave no precedence for pre-emption to him. Observation in case of Khan v. Mahanda and others, 32 Punjab Record 1902 though relatable to partition of joint holding were also relevant to the case of consolidation of holdings.
11. Having dealt with the plea of co-ownership and found it against the appellant, I shall revert to the plea of appellant's relationship to the vendor of the land. Pedigree-table connecting the appellant with the vendor through their common ancestor was not produced in evidence. Common pedigree was sought to be proved by oral evidence of a few witnesses produced by the appellant. P.W.1 gave an oral pedigree of the appellant and Mst. Bismillah and connected them with their common ancestor Jhanda. He claimed himself to be from a brotherhood of the parties and deposed that he was a Lambardar of Village Alampur in Patiala State. He further deposed that Mst. Bismillah was daughter of Muhammad Ramzan; he was murdered in the year 1947 and the appellant had married his widow who was still alive. In cross-examination the witness deposed that Railu and Kasu were dead before he gained consciousness and that Yousaf died before his birth took place.
12. He also deposed that Jhanda was dead before the death of his father took place. He expressed his ignorance as to the daughters of Jhanda ana their names. He also expressed ignorance about the daughters of Yousaf, Railu and Kasu. The witness denied the suggestion that he gave false evidence about the relationship between the parties. P.W.1 4as not a family relation. He was not old enough to depose on the pedigree of the parties to connect them with Jhanda who died much before he saw the light. .He had not the special means of knowledge about the relationship between the appellant and Mst. Bismillah. Though it was deposed that mother of Mst. Bismillah was married to the appellant and she was alive, yet she was not produced as a witness to support the relationship of her husband with the appellant. P.W.2 Noor Muhammad claimed to be husband of Mst. Bismillah and deposed in his in-chief-examination that appellant was her Yakjaddi but gave no details of relationship between them nor did he give evidence about their pedigree. His bald statement, therefore, was not helpful. Appellant was examined twice. On the first occasion, he gave his pedigree and that of Mst. Bismillah also and linked it with Jhanda. In cross---examination, he deposed that father of Mst. Bismillah was murdered at the time of partition; Mst. Bismillah was about 4/5 years of age then and she was brought up by him. Further, deposed that Ramzan had three daughters but expressed his ignorance about the number of daughters of Jhanda. He further deposed that Yousaf had two sons; one was Barkat and the other was Ulia. In his supplementary statement recorded on 20-11-1983, he had deposed that vendor was her niece; she was daughter of Ramzan son of Qasim Ali. He expressed ignorance about the name of father of Qasim Ali. It may be of interest to observe that on an earlier occasion, he had deposed that Kasu was son of Railu son of Jhanda. In cross-examination, he deposed that Mst. Bismillah was daughter of Rahmi and upon her becoming a widow, she had remarried with his father. In rebuttal of above relationship, one of the defendants namely Rahim $akhsh recorded his own statement and denied that appellant was related to the vendor. To a limited extent, Muhammad Nawaz D.W.2 also supported him. As observed elsewhere, written record of pedigree was not brought on file. There was no evidence that either it did not exist or was not available. Parties claimed to be displaced persons from East Punjab. There was no evidence to show that the appellant or his ancestor did not abandon the land in India. Similarly, there was no material to show that Ramzan or his ancestor were owners of the land in undivided India. Furthermore, there was no evidence to show that the appellant or Muhammad Ramzan were allotted land in Pakistan in lieu of land abandoned in India.
13. In absence of written record of pedigree of the parties, oral evidence given on the point of relationship by the appellant, upon its close and critical scrutiny was found insufficient to establish it. Learned lower appellate Court gave sound reasons for not relying on it. These were neither faulty nor infirm. Upon my own examination of the oral evidence adduced to prove set up relationship, I was not convinced of its intrinsic worth. Therefore, relationship to sustain pre--emption was also not satisfactorily proved.
14. Having regard to the aforesaid, second appeal is held to be without force and is dismissed with no order as to its costs.
15. Records shall be returned.