This appeal under section 100, C.P.C. Is directed against the judgment and decree dated 23-5-1975 passed by the learned District Judge, Gujrat whereby the first appeal of the appellant was dismissed and the judgment and decree dated 18-3-1974 passed by the learned Senior Civil Judge, Gujrat was affirmed, resultantly, the suit of the respondent seeking to pre-empt sale of land in favour of the appellant was decreed by both the Courts below.
2. The appellant and the respondent as originally arrayed in this appeal have died during the pendency of this appeal and are now represented by their heirs and legal representatives as brought on the record vide my order dated 15-9-1996.
3. The facts of the present appeal are to the effect that land measuring 4 Kanals, 10 Marlas comprised in Khewat No.257, Khatoni No.886 bearing Khasra No.713/2 situate Shadiwal Taraf Chuharke, Tehsil and District Gujrat being an agricultural evacuee land was allotted and confirmed in the name of one Bashir Ahmad son of Syed Muhammad Rashid. The said Syed Bashir Ahmad in turn sold the said land to the appellant for a consideration of Rs.2,812 vide Mutation No.4551 duly entered and attested on 12-1-1970. The respondent filed a suit against the appellant seeking to pre- empt the abovesaid sale on the ground of his being a co-sharer in the Khata, Khatoni as also the Khasra number first aforenoted. It was also asserted in the plaint filed in the suit by the respondent that the land in dispute was actually sold for Rs.1,000 but in order to ward off the possible pre- emptor, the sale amount was fictitiously mentioned as Rs.2,812 in the mutation of sale. It was also submitted that the actual market price of land is Rs.1,000. The plaint was summed up with the usual averments that the appellant was called upon to accept the superior right of the respondent but he is adamant, hence the suit.
4. The suit was resisted by the appellant who proceeded to deny the alleged superior right of the pre-emptor and maintained that the land in dispute was purchased by him for a lawful consideration of Rs.2,812. The pleas of partial pre-emption and estoppel were also raised. The learned Trial Court reflected the controversy between the parties in the following issues;- ----
(1) Whether the plaintiff has got the superior right of pre-emption? OPP
(2) Whether Rs.2,812 were paid actually or fixed in good faith? OPD
(3) Market value? OPP.
(4) Whether the suit is time-barred? OPD
(5) Whether the suit is bad for partial pre-emption? OPD.
(6) Whether the description of suit land is incorrect? If so, with what effect? OPD
(7) Whether the plaintiff is estopped from bringing this suit by his conduct? OPD
(8) Relief.
5. The original respondent being plaintiff in the case having presented copy of Jamabandi Exh.P-1 and copy of mutation Exh.P-2 closed his affirmative evidence with the rider that he would adduce his evidence in rebuttal after the evidence of the appellant i.e. Defendant in the case. The defendant/appellant, however, produced one witness and appeared himself as D.W.2 and thereafter presented two copies of Jamabandis pertaining to the year 1968-69 which were received in evidence as Exh.D-1 and Exh.D-2. The learned counsel for the appellant/defendant also made a statement that he would not press Issues Nos.4 to 7 while the learned counsel for the respondent having made the statement that he would not produce any evidence in rebuttal supplemented the same by stating that the sale-price of Rs.2,812 as mentioned in the mutation is accepted to be correct. In view of the statements made by both the learned counsel for the parties, only one issue i.e. Issue No. l remained to be decided by the Court. Both the Courts below having appraised the evidence on Issue No. l recorded concurrent findings of that the respondent was a co-sharer in the Khata, Khatoni as also the Khasra comprising the land in dispute, therefore, it was held that the respondent had the preferential right of pre-emption qua the land in dispute.
Consequent upon the findings noted above the suit of the respondent was decreed in his favour vide judgment and decree dated 18-3-1974 passed by the learned Senior Civil Judge, Gujrat which judgment was affirmed by the learned District Judge, Gujrat vide judgment and decree dated 23- 5-1975. .
6. The abovesaid judgments and decrees of the two Courts below have been assailed in the present second appeal.
7. It was argued that the two parcels of land i.e. One sold in favour of the appellant and the other owned by the respondent being evacuee agricultural land was allotted to them by the erstwhile Settlement Department and the allotment so made by the Settlement Department being independent of each other as also for the distinct Khacra number there was no community of interest or title between the two, hence the respondent could not claim to be either the co-sharer or the co-owner of the land sold in favour ofthe appellant. Reliance was placed on Syed Nazir Hussain v. Fazal Haq" (1994 CLC 641), Muhammad Rafique v. Rahim Bakhsh and others (1994 CLC 1587), Ghulam Yasin v. Muhammad Luqman (1989 M LD 200). Learned counsel for the respondent, on the other hand, maintained that it was the same Khasra number out of which one part was allotted to the predecessor-in-interest of the appellants who in turn purchased the same while the other was allotted to the respondent as is evident from the description thereof. It was maintained that the respondent having a share in Khasra No.73 was obviously a co-sharer and was rightly determined as such by the two Courts below. Reliance was placed on Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC 9).
8. It is matter of record that Khasra No.713/1 comprised in Khewat No.257, Khatuni No.886 situate at Mauza Shadiwal being an evacuee agricultural land was taken over by the Commissioner Rehabilitation and was subsequently transferred in favour of the respondent. Similarly Khasra No.713/2 comprised in Khata No.249/700 is shown in Mutation No.4551 (Exh.P-2) in the ownership of Bashir Ahmad son of Syed Muhammad Rashid who in turn sold the same to the appellant. This fact is further strengthened by the copies of Jamabandis for the years 1967/68 and 1968/69, Exh.D-1 and Eith.D-2, first of which (Exh.D-1) carries the names of the transferor and transferee of the land in dispute comprised in Khasra No.713/2 while the second carries the entry in regard to Khasra No.713/1 which, is in the name of the respondent. The documentary evidence referred to above would show that the two parcels of land 'i.e. One on the basis of which the pre-emptor claimed superior right of pre--emption and the other regarding which the said right of pre-emption was asserted are comprised in two different Khata numbers as also different Khatuni numbers.
Needless to add that even the division of Khasra Nos. Which have been effected by carrying the word 'min' is even otherwise indicated by the Khasra numbers allocated thereto i.e. 713/1 and 713/2, therefore, even on the factual plane it could not be successfully argued that the respondent-pre- emptor was either a co--owner or a co-sharer of the parcel of the land sought to be pre-empted by him.
9. The abovesaid factual aspect apart, there is much force in the arguments of the learned counsel for the appellant that the two Khasra numbers noted above having been carved out from original Khasra numbers were independent properties in themselves and were distinct and exclusive of each other. This being a case of an evacuee agricultural land, the principle of holding of share in the overall Khasra and for that matter the Khata was not at all applicable because the allotment was made in regard to specific property distinct in independent of any other part of the original Khasra for the particular reason that exclusive ownership in regard to the property being allotted to a specified person was to be confirmed in favour of the said allottee or the transferee as the case may be. Obviously, it was not a case of a share being transferred nor such a case is spelt out from the record of the case, therefore, I am inclined to agree with the arguments of the learned counsel for the appellant that there being no community of interest or that of title, the respondent could not validly maintain that he was either a co-owner or a co-sharer of the land in dispute. I am fortified in this view of mine by the judgment in the case of Syed Nazir Ahmad as noted supra. Reliance of the learned counsel for the respondent on the judgment in the case of Muhammad Muzaffar Khan v.
Muhammad Yusuf Khan (PLD 1959 SC 9) is not based on the correct reading thereof. Even otherwise, the facts forming basis of ", the case of Muhammad Muzaffar Khan are quite distinguishable from the facts of the present case, therefore, the rule of law laid down therein is not at all ''' attracted in the facts and circumstances of the present case. In the circumstances, it is so obvious that the two Courts below proceeded to decree the suit without adverting to the evidence on the record as also in complete oblivion of the law applicable in the peculiar, facts and circumstances of this case, therefore, the findings recorded by the two Courts below do suffer from vitiative legal infirmity, hence not sustainable.
10. For the reasons stated above this appeal is allowed, the judgment and decree dated 23-5-1975 passed by the learned District Judge, Gujrat and that of the learned Senior Civil Judge, Gujrat, dated 18-3-1974 are set aside, resultantly, the suit of the respondent seeking to pre-empt the sale in regard' to the land in dispute in favour of the appellant is dismissed with costs throughout.