SARDAR MUHAMMAD NAWAZ KHAN, J.--- This appeal has been directed against the judgment and decree of Additional District Judge Kohata Camp Dheer-Kot dated 29.9.2002 whereby, a judgment and decree recorded by Civil Judge Dheer-Kot dated 30.5.2002 was upheld.
2. The brief facts leading to above titled appeal are that three pre-emptores namely Muhammad Shafi, Muhammad Tufail and Muhammad Siddique pre-empted a sale-deed executed in favour of Raja Muhammad Saeed Khan (respondent No. 1 herein). The Trial Court, after due process of law, allowed the suits by Muhammad Tufail (respondent No. 9 herein) and Muhammad Siddique (appellant herein) in order that Muhammad Tufail pre-emptor was declared to have preferential right over Muhammad Siddique pre-emptor regarding purchase of the suit land as he was collateral of the vendor coupled with the fact that he was sharer in the suit land. Raja Muhammad Siddique Khan written statement rival pre-emptor was placed on No. '2 because he was simply a sharer in the joint property. Muhammad Shafi rival pre- emptor was also placed in category 2nd and 3rd of amended law pertaining to pre-emption matters but his suit was dismissed as in the opinion of the Trial Court, he had no prior right as against rival pre-emptor namely Muhammad Tufail and Muhammad Siddique. Muhammad Shafi did not challenge the order of the learned Trial Judge however, Raja Muhammad Siddique Khan (present appellant) challenged the validity of judgment and decree of the Trial Court through an appeal before Additional District Judge, Kohata Camp DheerKot with no success. Hence this appeal.
3. The learned counsel for the appellant pressed into service only one point i.e. The right of prior purchase of his client as against Muhammad Tufail respondent. It was contended that all the pre- emption suits were brought in the Trial Court under amended law governing pre-emption matters.
The new law, according to the learned counsel, provides three qualifications for a pre-emptor namely Shafl Shareek, Shafl Khalit and Shafl Jar. It was further submitted that Shafi-Shareek meant a person who is co-owner in the corpus of the undivided immovable property with the other person therefore, both the pre-emptores Muhammad Siddique and Muhammad Tufail being co-owners in corpus of undivided immovable property were having equal right of prior purchase. Both the Courts below, according to the learned counsel, while placing the appellant Muhammad Siddique at No. 2 with regard to his right of prior purchase against Muhammad Tufail were wrong therefore, the judgments and decrees by the Courts below were not sustainable in the eye of law.
4. Conversely, it was argued by the learned counsel for Muhammad Tufail respondent (rival pre- emptor) that he was having prior right of purchase as against the appellant because he was collateral of the vendors as such both the Courts below hve rightly observed that he was having prior right of purchase regarding the suit land as compared to other pre-emptores.
5. The record made available to this Court is examined in the light of controversy between the parties. As stated earlier, the controversy which requires its resolution by this Court is confined only to the point that who out of rival preemptores qualifies himself to be placed at No. I or whether Raja Muhammad Siddique and Muhammad Tufail are on equal footing and, if so, what relief could be granted to them. Both the Courts below are in agreement that Raja Muhammad Siddique appellant and Muhammad Tufail respondents qualified themselves to be Shafi Shareek in the joint immovable property out of which a share has been transferred through sale-deed. The amended, law governing pre-emption matters provides only three categories. Firstly, Shafi Shareek secondly; Shafi Khalit and thirdly, Shafi Jar. It is also provided in the amended law that where all the classes of pre-emptores referred to above are the claimants, the first class shall exclude the second and second shall exclude the 3rd. Here in this case, the rival pre-emptores Raja Muhammad Siddique, Muhammad Tufail and Muhammad Shaft are shown to have prior right as against vendee. The Trial Court disallowed the suit of Muhammad Shafi on the ground that he had no right of prior purchase as; against rival pre-emptor. This verdict offends the law on the subject of pre-emption because prior right is always seen as against vendee and if the all claimants are found to have right of prior purchase against vendee then their suits are to be decreed in preferential order keeping in view the qualification of the pre-emptores however, Muhammad Shafi did not challenge this finding against him before competent forum therefore, there arises no need to go into detail as he could not be given any relief in absence of any appeal. Both the Courts below are of the view that Muhammad Tufail respondent has preference over Raja Muhammad Siddique appellant because he has two additional qualifications i.e. He is collateral to the vendors and, moreover, his own property is much more nearer to the property sold. This view of the Courts below cannot be allowed to prevail for the reason that under amended law relationship of a pre-emptor with the vendor is no ground or qualification and any additional qualification even recognized by the amended law of pre-emption cannot be considered to place a pre-emptor in a better position while deciding pre-emption suits by the rival pre-emptores. As stated earlier, both the preemptores are Shaft Shareek and if Muhammad Tufail respondent is accepted to be Shaft Jar or included in any other category except Shaft Shareek it does not provide him a better qualification to be placed at No. 1. It is categorically provided in the amended law that where all the classes of preemptores recognized by the amended law are claimants, the 1st class shall exclude the second class and the second class shall exclude the 3rd class. It means that when Raja Muhammad Siddique appellant and Muhammad Tufail respondent both are accepted to be Shafi Shareek (category 1) then any additional qualification mentioned in the category two and three of the pre- emptores provided under the amended law cannot be added to No. 1 (Shafi Shareek) so as to place Muhammad Tufail in a better position to the other Shafl Shareek.
6. Another point which is important in this case is that Muhammad Tufail respondent is not found to have pleaded the fact of his being collateral to the vendors. Though there is some evidence showing him collateral to the vendor but it is settled principle of law that no evidence could be looked-into on a fact which is not specifically pleaded in the pleadings.
7. The result is that Raja Muhammad Siddique (appellant) and Muhammad Tufail (respondent) rival preemptores have equal right of prior purchase as against vendee regarding the suit land.
Therefore, the suit land is decreed in favour of both the rival pre-emptores in equal share (1/2 to each). The record shows that the respondent Muhammad Tufail has deposited entire decretal amount in the sum of Rs.6,62,582/- with the Trial Court and it is also on record that vendee has received the said amount. As the suit land is decreed in equal share (1/2 to each) therefore, the decretal amount shall also stand divided in equal share and the appellant is directed to deposit half of the decretal amount with the Trial Court within one month's time failing which his suit shall stand dismissed. If the appellant succeeds to deposit the required amount within given time then the rival preemptor Muhammad Tufail respondent shall be entitled to receive back 1/2 of the decretal amount from the vendee. With the above observations, the appeal stands disposed of accordingly.