1. ' SARDAR SAID MUHAMMAD KHAN, C.J.-- This appeal has been directed against the judgment of the High Court dated 15-10-1995, whereby the appeal filed by the appellants, herein, was dismissed.
2. ' The brief facts of the case are that the suit land measuring 3 Kanals, 9 Marlas comprising Survey No,3461 min and 3462 min, 'Khewat' No,140, 'Khata' No,1159, situate in village Boa, Tehsil and District Mirpur, was sold through a sale-deed, dated 17-3-1986 for an ostensible consideration of Rs,17,000.
3. It may be stated here that 2 Kanals, 14 Marais of land was sold comprising Survey No,3461 min while 15 Marlas of land was transferred from the land comprising Survey No,3462 min. Muhammad Azam, plaintiff-respondent, pre-empted the suit land on the ground that he was a co-sharer in the 'Khewat' which includes Survey Nos.3461 min and 3462 min. The trial Court came to the conclusion that the plaintiff-respondent was a co-sharer in Survey No,3461 min and was not a co-sharer in Survey No,3462 min. But all the same decreed the suit of the plaintiff-respondent on the ground that he, being co-sharer in the 'khewat' was entitled to decree of the whole land sold.
4. ' We have heard the arguments and gone through the record. Kh. Ali Muhammad, Advocate, the learned counsel for the appellants, has argued that the plaintiff-respondent was not a co-sharer in the property because a specific plot of the land was transferred. In alternative, he submitted that in any case the plaintiff-respondent was not entitled to decree comprising Survey No,3462 min because the pre-emptor was not a co-sharer in the aforesaid survery number. According to the learned counsel, the decree of whole of the suit land on the basis of pre-emption is violative of law.
5. The learned counsel for the appellants has cited following authorities in support of his contentions:-- ' In case reported as Abdul Rehman v. Muhammad Afsar Khan (PLD 1978 SC (AJ&K) 156), the pre- emptor was initially entered as landlord of the land in dispute; Muhammad Qasim, vendor, who was admittedly an occupancy tenant, in, the year 1962 acquired the proprietary rights of the suit land under section 25 of the Land Reforms Act, and became owner of the suit land. The plaintiff, who was formerly a landlord of the suit land, claimed that even after the acquisition of the proprietary rights of the occupancy tenant (vendor), he retained the ownership of the land comprising Survey No,4849 which was not included in the occupancy tenancy but this survey number was also included in the former khewat' No, 401. Thus, according to pre-emptor, he being an owner of the aforesaid number which was a part of the 'Khewat' had preferential right of pre- emption as co-sharer. The Court, after dealing with the scope of the words 'Khatooni', 'Khewat' and 'Mahal' occurring in the relevant law and the word 'co-sharer' appearing in the Right of Prior Purchase Act came to the conclusion that the contention of the appellant that as he was a co- sharer in Survey No,4849, the former 'Khewat', he would be deemed to be a co-sharer in suit land, was not accepted. It was observed that after the acquisition of the proprietary rights under the Land Reforms Act in 1962, and the attestation of the mutation in favour of the occupancy tenants, a new holding had come into existence and, thus, the preemptor did not remain a co-sharer in the suit land. Therefore, his appeal was dismissed as he had lost the right of pre-emption long before the execution of the sale-deed which was pre-empted.
6. ' In case reported as Hassan Muhammad v. Muhammad Hussain (PLD 1977 Azad J&K 40), while dealing with the scope of the term 'co-sharer', it was observed as under:-- "Who is a co-sharer? The term has not been defined anywhere either in the Pre-emption Act or in the Land Revenue Act or the Tenancy Act and no precise definition has been attempted, to my knowledge, so far. It consists of two words, ' co' and 'sharer'. 'Co' has been defined by Webster as 'signifying in general with, together, in conjunction, jointly, and is used: (1) with verbs; as, co-sustain, to sustain jointly; co-adjust, to adjust mutually; cooperate, co-exist etc. (2) with participles, adjectives, and adverbs, with the sense of in or to the same degree, amount, etc.; as, co-extensive, co-equal, co-eval, coextensively, co-equally, 3(a) with nouns in general, often importing rights or liabilities which are joint or in common; as co-education, co-adventure, co-eternity, co-indication, co-portion, co-inheritance; (b) with nouns of agency, officer or occupation in particular: follow; as coauthor, co-partaker, co-deter etc. Etc."
7. ' It was further observed that a vendee of a specific plot sold by one of the joint owners of the property undoubtedly steps into the shoes of the vendor and, thus, where no partition has previously taken place between the co-sharer, he becomes co-sharer with other owners. It was opined that all the co-sharers had the rights of ownership in the said plot until regular partition takes place; in the capacity of a co-sharer, as a successor of a vendor, had a right of ownership in each iota of joint land held by other co-sharers, although he might have purchased only a specific plot of the land by the co-sharer in possession.
8. ' In case reported as Ghulam Begum v. Khan Muhammad Khan (PLD 1984 SC (AJ&K) 38), it was observed that a purchaser of a specific survey number does not, ipso facto, become a co-sharer in other survey number of the 'Khewat'. However, it was observed, there was an exception to this rule that if a person purchased a fractional share of the survey number, he, of course, would become a co-sharer in other survery number of the 'Khewat'. The Court, while dealing with the question, observed as under:-- "12. It is also the cardinal principle of law that if a person purchases specific survey numbers he cannot, ipso facto, become co-sharer in other survery numbers of the 'Khewat' . There is, however, one exception to it; if a person purchases a fractional share, he, of course, becomes a sharer in other survey numbers of the 'Khewat'. The instant case, however, is an exception to this settled principle of law inasmuch as in this case the appellant had purchased only occupancy rights of the land under Survey Nos.457 and 476 min. He has no interest with other survey numbers purchased by the vendee-respondents. Obviously he cannot, having the character of an occupancy tenant, be a co-sharer in other survey numbers of the 'Khewat' whose proprietary rights and not the occupancy rights had been purchased by the respondents. The appellant, having a different character of interest, cannot be deemed to have any interest whatsoever in other survey numbers of the land falling under the 'Khewat' and whose proprietary rights had been purchased by the respondent-vendees. The appellant has only occupancy rights in two survey numbers and he cannot be said to be a co-sharer of the land whose proprietary rights have been purchased by the respondents though the land falls under the same 'Khewat' ."
9. ' It is evident from the above observations that the question as to whether the person who is a co- sharer in one of the survey numbers of a 'Khewat' would be deemed to be a co-sharer for the purposes of pre-emption, was not directly involved in that case. However, the Court observed that if a person is purchaser of a specific survey number of a 'Khewat', he cannot, ipso facto, become a co-sharer in other survey numbers of the same 'Khewat' but at the same time the Court expressed the view that a purchaser of a fractional share of a 'Khewat' would be deemed to be a co-sharer in other survey numbers of the 'Khewat'. The aforesaid expressions are paradoxical and do not help the case of the appellant.
10. ' Mr. Muhammad Sharif Tariq, Advocate, the learned counsel for the respondent, has controverted the arguments advanced by the learned counsel for the appellant. He has argued that if the land is sold out of one survey numbers comprised in the 'Khewat', an owner who is not a co-sharer in the survey number sold but is co-sharer in other survey number of the same 'Khewat', he would be deemed to be a co-sharer for the purpose of pre-emption because, ' survey number' or ' field' in a Khewat' is created merely for the convenience of the owners. The learned counsel has relied upon the following authorities in support of his contentions:-- ' In case reported as Muhammad Yusaf v. Sikandar (PLD 1970 Peshawar160), it was held that a 'Khewat' containing different survey numbers constitute one compact holding and, thus, a person who is co-sharer even in any one of the survey numbers would be deemed to be a co-sharer in the property though he is not a co-sharer in all the survey numbers of the 'Khewat'. It was observed by the learned Judges as under:-- ' The fact of the matter is that although a field or a parcel of land is assigned a particular number, it is not as a result of the division of the property, but is only for convenience of purpose, to be achieved in the matter of survey or the crop-inspection. The sale of a parcel of land comprised in more than one Khasra number 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. The reason given for dissenting from the judgment in Abdul Shakur v. Abdul Ghafur being unsustainable, the view taken by their Lordships of the Allahabad High Court is, for the reasons given by them, and also in view of the peculiar scope and position of a field number under the law prevailing here as we have discussed above, unexceptionable. The view taken by the High Court so far was on erroneous assumption that each and every Khasra or a field constitutes a separate property. The assumption being mistaken, the conclusion based on that, that for the purpose of preemption each Khasra number is to be considered separately, though they 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 was not correct. 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 Khasras, he will have the right to pre-empt the entire land comprised in the Khasra numbers."
11. ' In case reported as Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC (Pak.) 9), it was observed that if a vendor was in exclusive possession of certain portion of joint land and transferred its possession to the vendee so long there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of the transferor qua his ownership rights in the joint property to the extent of area purchased by him. Thus, it was held that alienation of specific plot transferred to the vendee would only entitle him to retain his possession till regular partition takes place between the parties. It was observed that in such eventuality, it cannot be said that vendee of a specific plot from a co-sharer in an undivided 'Khata' is not a co-sharer in that 'Khata'. (Underlining is ours).
12. ' In Muhammad Sharif v. Shabbir Hussain (1986 CLC 2672), it was observed that a person purchasing a specific Khasra number and not a fractional share of the 'Khewat' would be deemed to be a co-sharer within the meaning of section 15(b) of the Punjab Pre-emption Act because, 'Khewat' was not divided by regular partition. Consequently, the contention that a purchaser of a specific plot and not a fractional share of a 'Khewat', would now be deemed to be co-sharer in the land was repelled.
13. ' In case reported as Muhammad Hussain v. Hassan Muhammad (PLD 1984 SC (AJ&K) 122), it was contended that as the transfer was made by preparing the site plan " " out of a specific survey number, the other co-sharer in the 'khewat' or the survey number would not be co-owner in the land sold because, a specific portion was transferred in pursuance of the. It was observed that a transfer to a co-sharer to any person out of joint property would make the transferee a co-sharer, irrespective of the fact whether land transferred was a specific plot or not. Therefore, the contention that as the land was sold out of joint property after preparing the site plan, the other co-sharer would not be co-sharer in the land sold, was repelled.
14. ' In an unreported case of this Court entitled Lal Din v. Muhammad Afsar (Civil Appeal No,10 of 1990, decided on 23-1-1991) it was observed that mere fact that the property has been assigned a different survey numbers as a result of sale on the basis of possession would not take out the property from the joint ownership of all the owners in the 'Khewat'. While dealing with the proposition this Court observed as under:-- "It appears that the High Court was impressed by the fact that while mutating the gift in favour of Lal Din, Survey No,314 was sub-divided by the Revenue officials and the transferred land was allocated a separate number and for that purpose a map was also drawn on the reverse side of the mutation sheet. This procedure is followed by the Revenue officials to show separate possession and does not denote the fact that shares in the land had been partitioned as is the conclusion drawn by the High Court. This procedure followed by the Revenue authorities owes its authority from Chapter 7 of the Land Records Manual in which the opening part of para. 7 runs as follows:-- '7.8. Transfer of portion of field.--If a part or a share of a field has been transferred and separate possession has been taken, draw on the back of the mutation sheet and its counterfoil a map of the whole field and show as a sub-number the part transferred. No partition proceedings are necessary.'
15. ' It follows that when Survey No,1013/314 was entered in the record it was not a separate survey number but was a sub-number of Survey No,314 and was only meant to indicate the part of Khasra number which had been transferred. Even otherwise whether it is called a separate number or a sub-number is not material because it is a matter of form. The substance is the clear legal position that it was not a partitioning of shares."
16. ' As has already been referred to above, in Full Bench case reported as Muhammad Yusaf v.
17. Sikandar (PLD 1970 Peshawar 160), it was held that sale of a parcel of land comprised in more than one khasra numbers will not be a sale of as many properties as there are field numbers but will be only one property represented by the parcel of the land. It was further observed that the view that for the purpose of pre-emption, each Khasra number is to be considered separately, was held not sustainable. The view taken by the Full Bench again came up for consideration before the Supreme Court of Pakistan in another case reported as Said Karim Shah v. Taj Muhammad (PLD 1974 SC 383) in which the aforesaid view was approved by the Supreme Court of Pakistan and the contrary view taken by Peshawar High Court in some earlier cases was overruled. While speaking for the Court, Waheeduddin Ahmad, J. (as he then was) observed as under:-- "In my opinion, the discussion on this point by the Full Bench correctly appreciates the legal position of a Khasra or a field bearing number. It appears to me also to be just the same as different rooms in a house which do not themselves become different houses or different properties. In the same way, different Khasra numbers, in a holding or property do not become different properties in themselves."
18. ' The view taken in the aforesaid case was again confirmed by the Supreme Court of Pakistan in case reported as Ahmad Khan v. Sattar Din (PLD 1981 SC 148), wherein while dealing the proposition, the following observation was made by the Court:- " There is still another aspect of the matter, namely that the High Court was also in error in taking the view that the plaintiff had to prove contiguity in respect of each Khasra number comprised in the sale, as Khasra Nos.110 and 111 clearly form part of a compact block of land sold by the vendor.
19. In such a case contiguity with even one of the Khasra numbers would entitle the plaintiff to claim the entire holding comprised in the sale, as held by this Court in Said Karim Shah's case. The matter was considered at great length and it was held that the different Khasra numbers comprised in one holding do not become different properties in themselves, and the sale of a parcel and land comprised in more than one Khasra numbers did not constitute sale of as many properties as field numbers; it remained sale of one property, and if the plaintiff was owner of one Khasra number adjoining only one of the Khasra numbers sold, he could seek pre-emption on the ground of vicinage in respect of all the Khasra numbers. In this regard the view expressed by the Peshawar High Court in Muhammad Yusaf v. Sikandar (PLD 1970 Peshawar 160), was approved, and the view earlier expressed in several judgments of the Peshawar High Court including Qalandar Khan v. Qazi Pir Muhammad Khan (PLD 1956 Pesti. 1) was overruled. It will be Ken, therefore, that this being the admitted position that the two Khasra numbers with which we are dealing, from one compact block, the plaintiff-pre-emptor could succeed in respect of both on the ground of vicinage with one of these fields. On this ground also the High Court was in error in thinking that the right of pre- emption of the respondent did not extend to Khasra No,110."
20. ' In the aforesaid case, the Court also dealt with the principle of Muslim Law on the point and relying upon some treatises on Muslim Law came to the conclusion that even according to Muslim Law the right of pre-emption in case of agricultural estates is not merely confined to the small plots of the land but extends to the large estates of which the same are a part. It may be pointed out here that under section 3 of the Act known as Azad Jammu and Kashmir Enforcement of Shariat Act, 1989, the Shari'ah has been declared as supreme law in Azad Kashmir. Under section 9 of the said Act, it has been laid down that if two interpretations of a statute are possible, then one consistent with Islamic principles and jurisprudence shall be adopted by the Court. Therefore, even on that score it cannot be said that the right of pre-emption is to be proved in relation to each of the survey numbers of a 'Khewat'.
21. ' Thus, the view taken by the Supreme Court of Pakistan is that in case the right of pre-emption is exercised on the basis of contiguity, the pre-emptor need not prove that he is owner of the land contiguous to each of the survey numbers of the block sold. We are of the view that on the same analogy a co-sharer in specific survey number of a 'Khewat' has right of pre-emption in respect of the other survey numbers of the same Khewat' in which he is not recorded as co-sharer in the Revenue Record.
22. ' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to the costs.
23. ' The judgment shall be sent to the Deputy Registrar, Branch Registry, Mirpur, who shall announce the same after issuing notices to the counsel for the parties.