MAULVI ANWAR-UL-HAQ, J.- This judgment shall also dispose of R.S. As No. 392/1977, 393/1977 and 394/1977, as a common question of law is involved in all these four R.S. As. Respondents No. 1 to 3 purchased the land subject matter of the four R.S.As. The appellant as well as respondent No. 4 filed rival suits for possession of the suit land by preemption in respect of each transaction. Both the pre-emptores claimed superior right of pre-emption on the ground that they were the owners in the estate at the time of sale, while the vendee respondents were not. After impleading the rival pre-emptores of each other's suits in terms of section 28 of the Punjab Pre-emption Act, 1913, the suits were tried by a learned Civil Judge, Gujranwala, who found that both the pre-emptores had a superior right of pre-emption as against the vendee respondents. He calculated the holding of appellant at 498 kanal, 10 marlas and that of Murad respondent at 172 kanal 4 marlas and further held that legally they are entitled to share the land in accordance with section 17(c) of the Punjab Pre-emption Act, 1913 (hereinafter to be referred to as the said Act). However, he found that the land in suit was evacuee and as such not pre-emptiable. On the basis of this latter finding he dismissed the suits of both the pre-emptores, vide judgment and decree dated 23.5.1973 in all the four cases. The appellant filed appeals in all the four cases. The appeals were heard by the learned District Judge, Gujranwala, who reversed the findings of the learned Trial Court on the question of pre-emptibility of the suit land. Consequently, he allowed appeals of the two pre-emptores.
However, under issue No. 4 he found that clause (c) of section 17 is not applicable, but in fact it is clause (e) of the said section, which would apply. Resultantly, he passed a decree in favour of the appellant and respondent No. 4 in equal shares, subject to payment of the price determined in the same proportion by the successful pre-emptores, vide judgment and decree dated 10.2.1976 in all the tour cases.
2. Apparently, respondent No. 4 as well as the vendees felt satisfied and did not proceed in the matter further. The appellant, however, has tiled the said R.S. As. To question the findings regarding the distribution of the suit land between the rival pre-emptores.
3. Ch. Qadir Bakhsh learned counsel for the appellant contends that section 17(c) of the said Act was. Applicable and the learned appellate Court erred in disturbing the findings recorded by the learned Trial Court holding section 17(c) to be applicable. As per office report registered P.C. Were issued to the respondents for today. However, no one has turned up on behalf of the-vendees or respondent No. 4. I am therefore, constrained to proceed in the matter with the assistance of the learned counsel for the appellant.
4. The admitted and proved facts on record are that both the pre- emptores i.e. Appellant and respondent No. 4 claimed their superior right of pre-emption on the ground that they are owners in the estate: The learned Courts below have concurrently timnd that both of them are entitled to the right of pre-emption. The finding of the learned Trial Court as to the respective holdings of the pre- emptores in the estate has also not been upset by the learned District Judge. It has further been observed by the learned District Judge in the impugned judgment that there is no Shamlat in the estate concerned. Thus the sole point for determination is as to what would be the rule of distribution of the suit land in the above facts and circumstances: It will he advantageous to reproduce section 17 of the said Act here, which covers. The matter of distribution of suit land where preemptores are found to he equally entitled:- "17. Exercise of right of pre-emption where serval persons equally entitled.-- Where several pre- emptores are found by the Court to he equally entitled to the right of pre-emption, the said right shall he exercised:-
(a) if they claim as co-sharers, proportion among themselves to the shares they already hold in the land or property;
(b) if they claim as heirs, , whether .Co-sharers or not, in proportion among themselves to the sharers in which but for such sale would they inherit the land or property in the event of the vendor's decease without other heirs;
(c) if they claim as owners of the estate .Or recognised subdivision thereof, in proportion among themselves to the shares which they would take if the land or property were common land in the estate or the sub-division, as the case may be;
(d) if they claim as occupancy tenants in proportion among themselves to the areas respectively held by them in occupancy right;
(e) in any other case, by such pre-emptores in equal shares."
Learned counsel for the appellant insists that the above reproduced clause (c) of section 17 would be applicable while the learned District Judge has found that it will he clause (e) of the said section which will apply.,
5. The learned District Judge while coming to the aforenoted conclusion has relied on a D.B.
Judgment of this Court in the case of Fateh Muhammad and another v. Fateh Muhammad and others (A.I.R. 1948 Lahore 71). Before I proceed further in the matter I may note here with respect that judgments of superior Courts are to he read, considered and followed with reference to the facts and circumstances of the case in'which the same are pronounced. I may refer here to the judgment of the apex Court in the case of Director Housing, A.G.'s Branch, Rawalpindi vs. M/s. Makhdum Consultants Engineers and Architects (1997 S.C.M.R. 988). It was observed with reference to the case law cited by one of the parties before the Court at page 999 of the report "the observations made in those cases must be understood and interpreted with reference to the facts of those cases and it was not a correct approach to apply those observations as a generalised principle of law applicable to all similar cases". The learned District Judge appears to have been impressed by the contents of a head note of the case as reported in A.I.R. 1948 Lahore. It will be necessary to refer to the factual background of the case decided by their lordships and reported as A.I.R. 1948 Lahore 71. What happened was that two suits were brought to pre-empt a sale. It was found by the learned Trial Court that the two pre-emptores are owners in the Patti in which the land was situated. The suits were decreed in equal shares. One of the pre-emptores filed an appeal and contended that since he had a share in the Shamlat while his rival pre-. Emptor did not have any share in the Shamlat, he was entitled to the entire land . This plea found favour with the first appellant Court, which non-suited the second pre-emptor and passed a decree of the entire land in favour of the first pre-emptor, who claimed to have a share in the Shamlat. This finding was upheld in the second appeal. It was in these circumstances that the Letters Patent Appeal was filed which came to be decided by their lordships. Mahajan, J. Who wrote the leading opinion observed that the interpretation placed upon section 17 by the Courts while deciding first and second appeals was improper. His lordship opined that the said interpretation, would mean knocking out of the successful pre-emptor held to be equally entitled to the right of pre-emption. I am in respectful agreement with the said observation. It was to avoid such an eventuality that it was held that clause (c) would be applicable only where both the preemptores are entitled to a share in the Shamlat, but will have no application where one set of pre-emptores is not entitled to share the Shamlat in any proportion whatsoever with the other set. It was thus decided that the land will be equally distributed under clause (e) of the said section 17 of the said Act.
6. In the present case, the case set forth in the course of arguments before the learned District Judge was that there is no Shamlat at all in the estate. In my humble opinion, the said observations of their lordships in the said report vis-a-vis existence of Shamlat where both the pre-emptores have a share are equally applicable to the circumstances of this case where none of the pre- emptores is entitled to share of Shamlat as there is said to be none. A reading of the said clause
(c) would show that it does not at all refer to common land/Shamlat independently. In fact what the statutory provision conveys is that where the pre-emptores claim as owners of the estate then the land will be distributed in proportion, among themselves, to the share which they would take if the land or property were common land in the estate or sub-division, as the case may be. A simple reading of the said provisions would show that it is the suit land itself which is to be treated as common land and then to be divided as a common land. While admitting the R.S.As. His lordship called upon the learned counsel to produce the revenue record pertaining to the estate in question, which was placed on record and according to that the Shamlat was to be divided Hasab Rasad Khewat. This term came up for interpretation in the case of Daya vs. Budh Ram and others (A.I.R. 1925 Lahore 127). The case was decided by a Division Bench of this Court. Their lordships observed as under:- "There can be no doubt that the term khewat in the phrase "hasab rasad khewat" admits of two interpretations and may mean "proprietary land".
It was further observed "the word khewat is a derivative of khet (field).
7. In the light of above discussion, I conclude that the present case was covered by clause (c) of section 17 of the said Act and the suit land has to be divided amongst the successful pre-emptores in accordance with their holdings in the estate. I, therefore, allow all the four R.S.As. For the convenience of the parties, I have calculated the shares with reference to the admitted holding of the parties in the suit land which are being recorded in the judgments of all the R.S.As separately.
8. In the present R.S.A. The suit land is 50 kanal 18 marlas. The holdings of the appellant is 409 kanal 10 marlas and Murad respondent is holding 172 kanal 4 marlas in the estate. I pass a decree for possession of 35 kanal 16 marlas in favour of Masood Hussain Shah appellant, subject to payment of Rs. 8083.64. Murad respondent No. 4 is entitled to a decree for 15 kanal 2 marlas on payment of Rs. 3435.36. Both the successful preemptores shall deposit the said pre-emption money in the Trial Court before 31.7.1999. Needless to add that 1/5 or any other amount already deposited by both the pre-emptores shall be adjustable. In case any of the pre-emptores fails to deposit the said amount before the said date, the other will then deposit the amount before 5.9.1999 and shall get the land. In case both the pre-emptores fail to deposit the said amount before 31.7.1999 then their suits shall stand dismissed with costs. For the moment parties are left to bear their own costs.