One Ghulam Muhammad son of Khaista Gul of Manchoora-cum---Tarawara Oghi, through separate Mutations Nos. 2382 and 2402 attested on 18-7-1982 purchased property in Khata No. 174, Khasras Nos. 419, 421, 421/1 and 422 of Village Tarawara from different vendors named Fazal-ur.- Rehman and Abdul Marian respectively.
2. The aforesaid transactions were pre-empted through Suit No. 276/1 by one Abdul Hassan and through Suit No. 280/1 by another rival pre-emptor Gul Hassan. The suits were decided by Mr. Farooq Sarwar Khan learned Civil Judge, Mansehra on 8-5-1985. Suits of Abdul Hassan were decreed holding him to be a co-sharer while those of Gul Hassan were dismissed holding him not to be a co-sharer. The cases were remanded on 23-2-1986 by Mr. Amir Gulab Khan on a flimsy ground and after remand the same decision was maintained by Mr. Saleem Jan Khan, Civil Judge, Mansehra vide his judgment dated 10-4-1988. Mr. Alam Zeb Khan, Additional District Judge, Mansehra in his judgment dated 18-3-1989 upheld the decision but in revision before the High Court Honourable Mr. Justice S. Ibne A.I on 11-12-1989 again remanded the case on the ground that these be decided in the light of the latest laws prevailing regarding ' Talbs' etc.
3. Mr. Jehangir Khan, Additional District Judge, Mansehra vide his judgment dated 21-3-1992 once again upheld the same initial findings of the trial Court. The defeated rival pre-emptor Gul Hassan was dead by then and hence Maroof etc., his legal heirs, filed two Civil Revisions Nos. 95/92 and 86/92. Ghulam Muhammad vendee also filed cross-objecti6ns Nos.4/92 and 5/92, all challenging the decrees granted in favour of Abdul Hassan.
4. I would first take up the case of Abdul Hassan pre-emptor. Fard Jamabandi for the year 1968-69.
Exh. P.W. 1/1 and the statement of Abdul Qayum P.W. 2, the general attorney of Abdul Hassan the pre-emptor, if seen together, would reveal that the actual transactions had taken place in Khata No. 174 in which Abdul Hassan is not at all a co-sharer. He in fact happened to be a co-sahrer in Khata No. 156 as revealed in the Jamabandi Exh. P.W.1/2. One thing is categorically settled from the revenue record as well as from the statement of Patwari Halqa that Abdul Hassan pre-emptor is not a co-sharer in Khata No. 174 wherein the sale had taken place.
5. On the other hand he is an owner in Khasra No. 187/341-369 which is a "Shamilat Tarf Tarawara".
The Courts below have granted him a decree because of being a co-sharer not in the Khata itself but in the "Shamilat Deh Tarf Tarawara". Whether such an owner can exercise right of pre-emption in the given circumstances. In this behalf Mr. Muhamamd Hussain Lughmani learned counsel for Gul Hassan, the rival pre-emptor has placed reliance on "Ghulam Sarawar v. Allah Bakhsh" PLD 1956 Peshawar 64 where the term co-sharer in section 12 of the Pre-emption Act was held attributed to co-sharers holding similar title and not inferior or superior, as the case may be. The terms "Adna Malik" and "Aala Malik" were discussed and explained and held to be connotating different rights which could never be called joint. While referring, to the above case, the learned counsel attempt to reiterate that a person's co-sharership in "Shamilat Deh' cannot be held to be a co-sharership in a specific Khata in the village other than that of Shamilat. This was with regard to attack on Abdul Hassan.
6. The Courts below while granting a decree in favour of Abdul Hassan, had also held that Gul Hassan was not a co-sharer, whereas as per Jamabandi Exh. P.W.1/1 it was Gul Hassan who was co-sharer and not Abdul Hasasn. The only difference was that Gul Hassan had purchased property from one Abdul Latif in the column of cultivation and without having purchased any share in Shamilat. This verdict was assailed on the basis of "Muhammad Muzaffar Khan v. Muhammad Yousaf Khan" PLD 1959 SC (Pak.) 9 wherein it was held that vendee of specific plot becomes a co- sharer in that Khata and can retain possession of that specific plot until a partition of Khata takes place. In this view, it was alleged that Gul Hassan even without purchasing any share in Shamilat had become co-sharer by purchasing various Khasras in Khata No. 174 in cultivation column. What is a holding, was exhaustively discussed and held in "Muhammad Yousaf v. Sikandar" PLD 1970 Peshawar 160 that holding is Khata and one Khata is one holding regardless of how many Khasras it contains. In the light of such observation it was held that a person contiguous to one Khasra becomes contiguous to the whole Khata of which that Khasra forms a part. In view of these verdicts as well Gul Hassan is a valid co-sharer in Khasra No. 174 even if purchased without any share in Shamilat.
7. In "Sikandar v. Sultan Muhammad" PLD 1974 SC 11 it was held that where pre-emption is claimed, the pre-emptor must have the "Milkiet" or ownership in that property on account of which he claims the right of pre--emption. According to the verdict no right weaker than "milk" or ownership was recognized in connection with the exercise of right of pre-emption. In the case of "Sikandar" "milk", "Milkiet" was discussed with reference to a mansion or building. Dacca High Court had confined such right to a mansion while a Full Bench of Bombay High Court in "Dhasharat Lal Jhagal Lal v. Bai Dhendo Bai "AIR 1941 Bombay 262" had extended such right to the landed property as well. So with reference to a ' Milkiet' , any right weaker than a 'Milk' should not be equated with 'Milk' or ' Milkiet' .
This was with reference to the right of Abdul Hassan pre-emptor who provenly had no right in the Khata itself but was an owner in Shamilat. By being an owner in the Khata, he might be able to exercise certain rights in Shamilat Deh but being an owner in "Shamilat Deh" alone, one cannot exercise any right in various holdings in the village.
8. In the light of the law discussed before me, I am convinced and hold a view that Abdul Hassan by merely being an owner in ' Shamilat Deh' cannot exercise any right of 'Milk' or ownership in any Khata in which he is not a co- sharer at all. I am further convinced and hold that Gul Hassan rival pre-emptor by making a purchase in the Khata even without a share in ' Shamilat' was in fact a co-sharer in the Khata, a property essentially in dispute in the present case. Gul Hassan having made 'purchase in the cultivation column could retain the possession thereof and could ask for even the partition of Khata at any time in future. In the light of such findings and legal position on the subject, Abdul Hassan was wrongly declared to be a successful pre-emptor and Gul Hassan was wrongly declared to be not a co-sharer:
9. Such being the conclusion qua the individual right of pre-emption of the rival pre-emptores, one can safely hold that the pre-emption suit of Abdul Hassan cannot succeed.
10. Coming to the rival pre-emptor Gul Hassan, one is faced with an unavoidable circumstance that he had failed to obtain a decree on or before 31-7-1986 and thus without resorting to the performance of 'Talb-e---Muwathibat' and ' Talb-e-Ishhad' , he cannot exercise the right of pre- emption. Although this condition applies to Abdul Hassan pre-emptor as well, in addition to his not being a co-sharer yet the non-fulfilment of Talbs cannot be used against him because he had already obtained a decree once and for the first time on 8-5-1985. Gul Hassan pre-emptor cannot avoid under any circumstances the effect of verdict in "Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah's case (PLD 1986 SC 360) it was for such consideration that this Court had remanded the case on 11-12-1989.
11. Consequently both the pre-emptores fail and hence civil revisions Nos. 85 and 86 of 1992 filed by Gul Hassan rival pre-emptor are hereby dismissed. The cross-objections Nos.4/92 and 5/92 filed by Ghulam Muhammad vendee are accepted, the judgments and decrees of the Courts below, are set aside and both the pre-emption suits of both the pre-emptores are hereby E dismissed. No order as to costs.