1. ' CHAUDHURY RAH1M DAD KHAN, C.
2. 3.-This certificated appeal is directed against the decision of the High Court dated 24-7-1975 whereby appeal filed by Abdur Rahman pre-emptor against the appellate decision of the District Judge, Rawalakot, reversing the finding of the Sub-Judge, Rawalakot, was dismissed.
2. The facts which have given rise to this appeal briefly are that the plaintiff, Abdur Rahman appellant, filed a suit to pre-empt the sale, of land measuring 35 kanals 13 marlas situate in village Pachhiot, Tehsil Bagh (Rawalakot), made by one Muhammad Qasim in favour of Muhammad Afsar respondent, on 24th April 1964, by a registered sale-deed for an ostensible consideration of Rs, 9,000. The preferential right is claimed by plaintiff on the basis of being a co-sharer. Muhammad Qasim vendor admittedly had been an occupancy tenant under the pre-emptor but in the year 1962, he, by acquiring the proprietary rights over the land under section 25 of the Land Reforms Act himself became owner of the land in the suit. The plaintiff, who was formerly a landlord over the land in dispute, claims that even after the acquisition of the proprietary rights by the tenant (vendor) he (plaintiff) retained the ownership of the land under Survey No, 4849 which though not forming part of the tenancy yet was a part of the former Khewat No, 104 in the village. This fact, according to him, clothes him with a preferential right as a co-sharer and co-owner in the other part of the land under Survey Nos, 2323, 2325, 2328, 2330, 2337 and 2338. It was also alleged that Rs, 9,000 only were paid. The higher amount was fixed in order to discourage a prospective pre- emptor. The trial Court came to the conclusion that the pre-emptor possessed superior right of purchase as compared to vendee, that he could exercise that right on payment of the price mentioned in the sale deed which had been proved to have been genuinely paid. On appeal, learned District Judge, Rawalakot, relying on PLD 1970 SC (Pak.) 245 and PLD 1959 Pesh, 120 held that the plaintiff pre-emptor after acquisition of proprietary rights over the land by the vendor in year 1962 lost the status of a co-sharer or that of a joint owner in the property and consequently lost the superior rights of purchase, if any, over the land in dispute long before the impugned sale took place. On appeal by the pre-emptor before the High Court the decision of the District Judge was maintained. Thus both the appellate Courts unanimously held that the pre-emptor did not possess any superior right of purchase as compared with the vendee. But still a certificate of fitness was issued by the High Court in favour of the appellant without clearly detailing the legal point involved in the case requiring an authoritative decision by this Court. The main principle on which Prior Purchase Act is based is that 'a person who possesses superior rights to purchase a property should be helped to get that property from others who have inferior rights than him'.. In other words the pre-emptor, in order to succeed, has to establish that he is clothed with a superior right, as compared with the vendee, to purchase the property. In the present case it appears that the pre-emptor claims his right of preemption on the basis of his having been a co-sharer with the vendor. The decision would depend on the point whether the pre-emptor under the circumstances of the case can be held to be a co-sharer.
3. ' From the arguments submitted by the learned Advocates for the parties it emerges out that the sole question for determination in the present case pertains to the effect of the grant of proprietary rights in favour of a tenant on the status and relation of his former landlord who, till the conferment of the proprietary rights upon the tenant, was clothed with superior proprietary rights over the land and whether be would continue to be joint owner in Khewit on the basis of his proprietary rights over the land, if any, under another survey number ; namely No, 4849 which was formerly a part of Khewit No,
104. This would involve interpretation of certain vernacular A terminology that is generally used in revenue record such as owner of 'Mahaal', (Jb) `Khewit', ({{URDU TEXT}}) and `Khatoone ({{URDU TEXT}}). 'Mahal', according to the Concise Law Dictionary containing Urdu Words with English Meaning by Doctor D. Prasad, means:- "An estate ; a department ; a parcel of land separately assessed with the public revenue. A mahal is defined as follows :- ' A mahal means-
(a) Any local area held under a separate engagement for the payment of revenue ; provided that
(1) If such area counts a single village or portion of village, a separate record of rights has been framed for such village or portion.
(2) If such area consists of two or more villages, a separate record of rights has been framed for the entire area, or for each of the villages or portions of villages included therein.
(b) Any revenue-free area which separates record-of-rights has been framed."
4. ' The word "estate" under section 3(1) [4(9) (1)] of the, Land Revenue Act has been given statutory meaning which is ;- "estate" means any area
(a) for which a separate record of rights has been made ; or
(b) which has been separately assessed to land Revenue, or would have been so assessed if the land revenue had not been released, compounded for or redeemed ; or
(c) which the Provincial Government may, by general rule or special order, declare to be an estate.
5. ' The plaint filed in this case does not disclose that the pre-emptor appellant had claimed the right of prior purchase on the basis of his being an owner of the Mahal. It is not alleged either, in the plaint or elsewhere that the vendee does not belong to the community of that village or does not form integral part of that community or is not owner of the Mahal in the village. If both the vendee and pre-emptor enjoy equal status in that case the question of pre-emption would not arise.
6. ' Then the question would arise whether on the basis of being an owner of part of the land under certain survey number in the former Khewit the plaintiff would be deemed to continue as co-owner or co-sharer in the other part of the land which bears different survey number. For proper appreciation of the point involved it is necessary to ascertain the meaning of the term Khewit which is equivalent to English word holding 'holding' under section 3(4) D of Land Revenue Act means a share or portion of an estate held by one land owner or jointly by two or more land owners and the Khewit number is the number of the owner's `holding' as has been stated by Col. Buck and Agarwal at page 9 in their book 'The Mutation work in the Punjab'. Raja Afzal Khan at page 8 of his land Revenue book has described Khewit as equivalent to the English word 'holding'. Tenant holding is technically called a tenancy or Khatooni On becoming proprietor in 1962 under section 25 of Land Reform Act the vendor became an owner of the land in his right. His holding was not afterward jointly owned by him with his former landlord but became a new holding which fact is clearly borne out from the revenue record prepared subsequent to the attestation of mutation recognising the title of the vendor. The record-of-rights (pertaining to year 1965) raises a statutory presumption in favour of vendor to the effect that his holding ceased to be joint with that of his erstwhile landlord. If the pre-emptor's holding became a new and separate holding in that case he would also lose the status of joint ownership with tenant.
7. ' The phraseology of section 14 (fourthly) of the Right of Prior Purchase Act has been imported from section 15, fourthly, Punjab Pre-emption Act. Section 12, firstly, of .N.-W. F. P. Pre-emption Act is also couched in identical words. This sub-clause confers on the co-sharer the right of prior purchase. In order to determine who is a co-sharer, the interpretation placed on this word by the Courts in Pakistan thus can provide a useful guide. The word 'co-sharer' clearly signifies that there are other persons as well who have a right in the property. Where therefore the land sold is the sole property of the vendor in which the plaintiff has no share whatsoever, the mere fact that he is an owner of land in an other part of the same estate but not joint in the property under sale, does not make him a 'co-sharer' in the said land so as to confer on him the right of pre-emption. His right of joint ownership, if any, with vendor ceased to exist after acquisition of exclusive title of ownership by the tenant on payment of compensation amount in 1962 under section 2 Land Reforms Act. In PLD 1970 SC (Pak.) 245 the word 'co-sharer' has been defined as :- "A co-sharer is not statutorily defined, but its legal concept is quite well-settled, namely, that a co- sharer whatever the extent of his right in the joint property, is a co-owner in every inch of that property to the extent of his share until partition takes place which he can claim as a matter of right. The appellant's right of co-ownership in the present case is merely confined to one wall and the site under it which, as usual, was probably due to mutual agreement between him and the original owners in their mutual interest. But this jointers in one wall cannot be extended to create a right in the appellant as a co-sharer in the entire house in dispute.
8. ' We fully concur in this view which depicts the correct legal position. The appellant's claim that by reason of his being a co-owner in a common wall of the disputed house, he should be deemed, to be a co-sharer in the house in dispute to give effect to his pre-emptive right to that house, is too wild to need any further comment."
9. ' On acquisition of the proprietary right by the tenant, it appears that in recordof-rights, prepared in 1965, the copy of which is Exh. D. B. At page 24 of the original file, the alteration was made in accordance with the entries attested under the mutation. Consequently the number of the Khewit was also changed and as result the name of Abdur Rehman pre-emptor was also dropped out from the new Khewit. In an analogous case reported as PLD 1959 Pesh. 120 it was held at page 123 that :- "For the purpose of pre-emption, each Kbasra number is to be treated as a separate unit and the pre-emptor must prove his superior right in respect of each one of them. Therefore, if the suit property is contiguous to the property of which the vendee be came full owner on the date of decree both the pre-emptor and the vendee have equal right of pre-emption both having property contiguous to the suit property."
10. ' The claim made by the appellant to the effect that for his being the owner of another survey number in the same Khewit, he be deemed to be a co-sharer in the land in dispute cannot thus be accepted. No doubt, prior to acquisition of the proprietary right by the tenant under Land Reforms Act in 1962 the pre-emptor possessed a superior right in the property but after attestation of mutation in favour of the tenant, the plaintiff (landlord) ceased to possess that superior proprietary right in the property, a new holding thus came into existence, the landlord, when he had lost joint ownership ; so cannot claim right of pre-emption on that basis. The pre-emption in such cases is not a personal right but is available as a co-sharer and is lost with the loss of ownership over the property. In PLD 1967 Pesh. 284 it was laid down that :- "A person who was once a co-sharer but had ceased to be so at the date of sale by partition or by parting with his rights in the joint property is not a co-sharer and cannot claim pre-emption as such. The right of pre-emption is not surely a personal right but is available to the pre emptor as a co-sharer and is lost with the loss of ownership by transfer. The objection of the right of pre- emption appears to be that the pre-emptor should have tangible objective right in the property which affords him basis for the exercise of the right of pre-emption and untangible subjective or paper right does not give the pre-emptor the right to assail the transaction of sale."
11. ' Since the appellant in the instant case had lost the right of pre-emption long before the execution of the impugned sale, he, cannot therefore, succeed Hence the appeal is dismissed. Parties shall bear their own costs.