SARDAR MUHAMMAD IQBAL, J.--One Mst. Akbar Jan sold to Sikandar respondent 1106/4000 share out of land comprised in Khasra Nos. 562 and 563, Khata No. 368/777, measuring 3 kanals 11 marlas, and 558/400(1 share out of land comprised in Khasra Nos. 564 and 570, Khata No. 380/798, measuring 4 kanals 2 marlas, situate in village Potha, Tehsil Mansehra, Muhammad Yousuf, appellant, an owner of land comprised in Khasra No. 561 brought a suit for possession by pre- emption on the ground that his property was contiguous to the property in dispute. Khasra Nos.
562, 563, 564 and 570 which comprise the property in suit are admittedly contiguous to each other.
The suit was dismissed by the learned trial Judge on the ground that the property of the plaintiff- pre-emptor was contiguous to only Khasra No. 562 and that being so he could claim on the basis of vicinity a right to pre-empt that Khasra number, and that since the other Khasra numbers were not contiguous to the property of the plaintiff he did not have the right of pre-emption in respect thereto. On that finding, he held that as the vendee had an indefeasible right in property comprised in Khasra numbers other than No. 562, he had also become the owner of the property contiguous to the land comprised in Khasra No. 562, with the result that the right of the plaintiff was not superior to that of the vendee and that he, in the circumstances, could not succeed in the suit. The same view was taken by, the learned Additional District Judge who dismissed the appeal. The second appeal by the plaintiff-- pre-emptor came up for hearing before our learned brother Faizullah Khan, J., who by order dated the 26th May 1967 referred the following question to be resolved by this Full Bench: --- "Whether on the true interpretation of the expression contiguous property so far it relates to agricultural land, is, it a pre-requisite qualification that a pre-emptor must own land contiguous to all Khasra numbers sold under sale or the right of pre-emption would accrue to him- even if he owns land contiguous to one of the several Khasra numbers?"
2. The necessity of making the reference to the larger Bench was felt on account of the decisions of the High Court that each Khasra number itself constitutes a separate property and when a person sells land comprised in more: than one Khasra number he sells as many properties as there are Khasra numbers, and the plaintiff-pre-emptor has, under clause thirdly of section 12 of the North- West Frontier Province Pre-emption Act, 1950 (Act XIV of 1950), the right to pre-empt only a Khasra/field which is contiguous to his property.
The decision of the question does not depend so much on as to what is "the true interpretation of the expression contiguous property" as on the question whether each of the Khasra numbers by itself is a separate property like a house and that a person in order to succeed in pre-emption on the basis of contiguity should have property contiguous to all the Khasra numbers of a block of land or to any one of its Khasra, numbers. The precise question which arises for answer is: "When a compact block of land comprising more than one Khasra Number which adjoin one another is sold, does the right of pre-emption of the owner of a property which is contiguous to only one of the Khasras, extend under section 12, clause thirdly of the North-West Frontier Province Pre-emption Act to the entire block of the land?"
3. The right of pre-emption in respect of agricultural land is conferred by section 12 of the North- West Frontier Province Pre-emption Act, 1950 (Act XIV of 1950) which, for convenience of reference is reproduced hereunder: --- "12. Persons entitled to pre-empt. The right of pre-emption in respect of agricultural land, village immovable property and urban immovable property shall vest: firstly, in the co-sharers in such land or property, if any; secondly, in a participator in immunities, appendages, such as a right of way or a right to discharge water; thirdly, in owners of contiguous property, if any; fourthly, in a landlord when the same is by an occupancy tenant of his right in tenancy."
The High Court of Peshawar in an unreported judgment in Abdul Khaliq v. Ghulam Sarwar (Civil Revision No. 206 of 1954, decided on the 12th December 1955) observed: "The plaintiff in this case has his property touching Khasra No. 330, but he has no property which touches Khasra No. 351.
Consequently it cannot be said that by reason of the fact that this property touches one Khasra number out of the two Khasra numbers sold, he should automatically be held as having property touching both the Khasra numbers sold." In Qalandar Khan v. Pir Muhammad Khan (PLD 1956 Pesh.
1) it was observed : " . . This Court has consistently held the view that for the purpose of pre-emption each Khasra No. Is to be considered separately, even though a number of them have been purchased by means of one transaction and are contiguous to each other, and the pre-emptor must prove his right based on contiguity in respect of each and every Khasra No. Before he can succeed." In arriving at the finding reliance was also placed on Phul Chand v. Sundar Das (AIR 1946 Lah. 345) where it was held that if two adjoining houses were sold by one sale deed, the pre- emptor whose house was contiguous only to one of the houses had no right of pre-emption to the other house which, though adjoining the other house, was not contiguous to the house of the pre- emptor, and it was further observed: "A vendee in a suit brought to enforce, on the ground of vicinage, a right of pre-emption in respect of one of the properties purchased by him, can successfully resist the suit on the strength of his title to an adjoining property conveyed to him by means of the same sale deed." This view as affirmed in Ghulam Mohayuddin Khan v. Ghulam Qasim (PLD 1957 Pesh.36) where a Division Bench held: "Each Khasra No. Being distinct, if a suit is brought on the ground of vicinage, for possession by pre--emption of those Khasra Nos., the plaintiff must prove that he has property contiguous to each one of them, and if he fails to do that, his suit qua the Khasra Nos., with which he has no contiguous property must fail." Same view was reiterated in Sultan Muhammad v. Muhammad Yusuf (PLD 1959 Pesh.120) where after observing that each Khasra number is to be treated as a separate property and the pre-emptor must prove his superior right in respect of each one of them, it was remarked: "The plaintiffs, therefore, had no superior right of pre-emption with regard to Khasra Nos. 105 and 108" and that they "lost their title with regard to Khasra No. 106 as well, because on the date of the decree, the vendee, having become full owner of Khasra No. 106, had equal right of pre-emption with them, both having their property contiguous to this Khasra No." Further in Zahuruddin Khan v. Shahalam Khan (PLD 1959 Pesh. 148) by observing that the pre-emptor's land was "no doubt contiguous to Khasra Nos.
3860/214 and 4396/213, but the other two fields, Khasra Nos. 3851/198 and 212, which the vendee has acquired, are also contiguous to those two fields and the vendee too has right of pre-emption, equal with Zahuruddin Khan pre-emptor; in respect. Of them" it was held that the pre-emptor was on a footing of equality with the vendee and had no claim to preference over him.
4. It has not been discussed in any of the judgments as to what is the precise nature and scope of a Khasra or a field bearing a distinct number, and we have not been able to find as to what, according to the learned Judges, was the basis for holding that each Khasra number constituted a separate property. In Abdul Khaliq v. Ghulam Sarwar upon which the entire subsequent case-- law is based, it was observed: "In this particular case it so happens that the two Khasra numbers sold are contiguous to each other, but supposing if by one sale-deed several Khasra numbers are sold and all of them do not touch one another it would be ridiculous to say that simply because all these Khasra numbers are sold-by one deed, therefore, the plaintiff by holding his- property contiguous to one Khasra number should be held to hold property contiguous to all the Khasra numbers sold. The finding was consistently followed in all the subsequent judgments without adverting to and answering the fundamental question as to how a person could be considered at one and the same time to be the owner of one property comprising a number of Khasra numbers and also an owner of as many properties as there are Khasra numbers. The observation is based on misunderstanding of the legal position of a khasra or a field number.
5. The ownership of an agricultural land is called "a holding", "a khewat" or "a khata". If a person has one holding fn one village, he is owner of one property. If he has more than one khata or holding in a village, he is the owner of more than one property. On the contrary, if a holding comprises more than one Khasra number, he still remains the owner of one property, and does not become owner of as many properties as there are Khasra numbers. This position is manifested from the laws relating to the agricultural lands. The word "holding" was defined in sub--section (3) of section 3 of the Punjab Land Revenue Act to mean "a share or portion of an estate held by one land-owner or jointly by two or more land-owners." The same is the-definition of the word "holding" in the laws applicable in the erstwhile Province of Frontier. Khasra or a field is described in para--graph 242 of the Punjab Settlement Manual by Sir James M. Douie (Fifth Edition) as "a . Parcel of land to which separate number is assigned in the map. The fixing of the limits of fields for survey purposes is a question to be decided on grounds of convenience, the chief matters for consideration being the use to be made of the maps in the half-yearly crop inspections. Usually any parcel of land lying in one spot in the occupation of one person or several persons jointly, and held under one title, should be treated as a single field." The fields or khasras are known by the numbers which are assigned to them, and according to paragraph 741 of the Manual afore-mentioned the "field or Khasra number is the number given to the field in the village map (Shajra Kishtwar).
The distinction between a holding (a khewat) and a field becomes further crystallized if we make reference to the form of the annual record of Jamabandi given in the Punjab Land Records Manual.
It has twelve columns. Column No. 1 gives Khewat numbers, i.e. The number allotted to the holding.
Column No. 4 gives the name of the owner, with description. Column No. 7 deals with field numbers and column No. 8 shows the area. A holding is thus not the same thing as a khasra or a field.
Holding denotes the property in the ownership of a person or persons (see Para. 7'41 of the Punjab Land Records Manual) while it may be divided into fields or khasras for purposes, of survey by the Revenue Department or to facilitate half-yearly crop-inspection to make entries in khasra girdawari which in turn becomes the basis for fixing the land revenue and water charges. There is no permanent settlement in this part of the country. The land revenue or the water cess (abiana) is charged in accord--ance with the use to which the land is put in each harvest. In estates under fluctuating assessm ent, a new khasra girdawari is prepared twice a year. The inspection of each harvest is done twice a year, i.e. On the 1st of October and the 1st of March. If each holding irrespective of its size or location were to have only one field number or Khasra numbers it could present difficulty at the time of making entries of crop-inspection as to the area which utilized for any particular crop. The division of a holding into fields makes the crop-inspection convenient and easy. The provisions as to the Harvest Inspections are contained in Chapter 9 of the Punjab Land Records Manual. Column No. 1 the Harvest Inspection Book or the khasra girdawari is mean for giving Khasra number. The fields are duly entered in the order of the field map (shajra kishtwar). A specific instruction is given in sub-para. (vii) of paragraph 9'3 as : "Care must be-- taken not to increase numbers and sub-numbers needlessly. They should not be increased for temporary changes of cultivating possession, or because part of a field is cultivated and part uncultivated."
Thus a holding of a land which comprises in it a number of fields bearing different Khasra numbers remains one property and not that it has as many properties as there are Khasra numbers. The position can be well understood if we refer to the analogy of a house consisting of more than one room. Suppose a vendee C sells a portion of the house and that portion adjoins the house of the pre-emptor he will have the right to pre-empt the entire portion though consisting of more than one room, some of which are not contiguous to his house. In Genda Ram and another v. Ram Chand and another (AIR 1924 Lah. 163) an owner of the house sold three portions of his house A, B and C. It was held that the plaintiff pre-emptor had the right to pre-empt only that portion of the house which was contiguous to his own. In Labh Singh v. Taj Din and others (I L R 12 Lah. 578) a part of the house viz. a kotha together with adjoining space was sold to the vendee. A week later, the rest of the house was sold by another sale deed to the same vendee: Plaintiff's house adjoined the house but was not contiguous to the kotha and the open space while the property which formed the subject-matter of the second sale was contiguous to the plaintiff's house. It was held that there was in reality only one sale transaction; the two sale deeds must be treated as parts of one and the same transaction and as such subject to the plaintiff's right of pre-emption as if the whole property had been sold by one deed. In the context, it was observed: . . . If there had been any genuine sale of the kotha in the first instance and then the rest of the house had been sold, the vendee might have successfully defeated tile plaintiff's right of pre-emption." Where a property is sold which in fact is one house with different compartments under one roof and approached by a common entrance, it must be regarded as one property. If such a property is sold a person having a property contiguous to that, will have the right to pre-empt the whole property and not only the compartment which is contiguous to his property. If, however, the owner of that property sells the different portions and they are not contiguous to each other, then in that event the sale of each portion would be pre-emptiable only by a person owning a property contiguous to that portion.
The case of a person who owns a property com--prised in more than one Khasra number is like that of an owner of a house consisting of more than one room and not that of a person who owns more than one house. Just as different rooms in a house do not themselves become the houses or different properties, similarly different Khasra numbers in a holding or property do not become different properties in themselves. If a person sells, out of his holding, land comprised in more than one Khasra number and they are all contiguous to each other thereby forming a compact block, the sale is pre-emptiable for the reason that on account of the compactness the block will be a property in itself. If on the other hand, the owner of a holding sells different portions of the same property and they are not contiguous to each other, then in that case, since the portions do not adjoin) each other and are not contiguous, they would not form a block/ of the property and the pre-emptor will have the right to pre-empt only that portion of the property which is contiguous to that of his own. Thus, in a case where a part of holding is sold, the right to pre-empt extends as far as the property sold is not separated by any intervening space or other portion of the property.
7. The question whether each khasra of a property was a separate property in itself was considered by the Full Bench in Sanwal Das v. Gur Parshad (90 P R 1909). The learned Judges, during the course of their individual judgments while discussing the transac--petition of the sale of more than one house, discussed by way of analogy the sale of more than one khasra by one sale deed or transaction and were unanimous in the view that each field number (Khasra number) by itself does not constitute a separate property. It was observed by Chevis, J. "Take again the case of man selling fields. Under the old law a man could sometimes claim to pre-empt by reason of a special custom entitling him as owner of adjoining fields to pre-empt. The sale deed would usually give the Khasra numbers. Could be only claim to pre--empt the Khasra number sold which immediately adjoined his own land? Could he not rather say he claimed to go on and pre-empt so much land as lay in a ring fence adjoining his own. Two fields may at any time be thrown into one or subdivided into more than one and Khasra numbers are subject to change at least at every settlement. In my opinion wherever right of pre-emption depends on contiguity, a plaintiff can claim to pre-empt so much as lies in a ring fence adjoining his own property." He considered that the sale of two Khasra numbers was like the sale of two houses. The analogy of a khasra to a house was not agreed to by -the majority view, and in their opinion two houses unlike two khasras of the same property, constituted two different properties and even if they were sold by one transaction it could not clothe the person, who had his house contiguous to one of the two houses sold, with the right to pre-empt the one which was not conterminous to his house. Chatterjee, J., with whom Rattigan, J., agreed, observed in the order: "My brother's argument about the sale of several fields at one place does not to my mind carry the matter much further. In the first place the Khasra numbers are not really distinguishable marks like enclosures or raised boundary walls but rather marks of identification on the village shajra. When a plot of land comprising several Khasra numbers is sold people understand that the whole land as a block is sold. The illustration appears to me not to be very opposite." The precise question came up for consideration in Abdul Shakur v.
Abdul Ghafur (6 I C 358) where the view was taken by one learned Judge of Allahabad High -Court that in order that a pre-emptor should succeed, he should have his property contiguous to all the three plots of land which were the subject --matter of transaction of sale and that if the property of the pre--emptor was in the vicinage of only one plot he would have the right of pre-emption only in respect of that plot and not in respect of the two other plots though it adjoined the other two plots. The decision was set aside by the Letters Patent Bench and they held: "We are unable to agree with the learned Judge in the view thus expressed. The subject-matter of the sale was a parcel of land which for convenience of cultivation or some other reason was divided into three small plots. This parcel of land adjoins the plaintiff's land and has been sold as an integer. It comprises but a small area. We see no good reason for so disintegrating the integer so sold as has been done by our learned colleague, and for holding that plot No. 836 alone and not also plots Nos.
833 and 834 adjoin plot No. 837". It was thus held that all the three plots which were the subject- matter of the decision formed one parcel of land and the pre-emptor had the right to pre-empt all the three. This decision was considered by the Division Bench in Ghulam Mohayuddin Khan v.
Ghulam Qasim and they observed -: "With due respect to their Lordships we are unable to agree with that view, because if a certain property is divided into different parts quite distinct from each other, whatever the reason for the division may be, it should be treated as a separate property."
The observations are based on the fallacy that it is as a result of the division of the property that different Khasra numbers are assigned to a holding. 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 purposes of pre-emption 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.
9. We answer the reference accordingly.
SHER BAHADUR KHAN, J.-I agree.
SHAH ZAMAN BABAR, J.-I agree.
S, Q.