MARDAN SHAH Versus SHAH NAZAR KHAN

1. SAJJAD AHMAD, J. --Mardan Shah, the appellant herein by special leave, pre-empted the sale of a house situated in Nowshera Kalan, made by its owners Sultan Shah and others to the respondent Shah Nazar Khan, in lieu of Rs. 12,000 by a registered deed dated the 9th of August 1964. The appellant based his superior right of pre-emption on the grounds :-

(i) that he was a co-sharer of the suit house;

(ii) that he was a participator in the immunities thereof ; and

(iii) that he owned property in contiguity as provided by section 12, firstly, secondly and thirdly, of the N.-W. F. P. Pre emption Act (Act XIV of 1950), hereinafter described as the Act,

2. The respondent-vendee denied that the appellant was co-sharer ire the disputed house and claimed that his rights were equal to those of the plaintiff-preemptor as regards contiguity and participation in the immunities. The admitted position in the ease was that both parties owned a house each contiguous to the suit house. In fact, the three houses formerly constitutes one block belonging to the salve owner.

3. The appellant's superior claim on the ground of co-sharership was based on the fact that a common wall and the site underneath it which separated his own house from that of the house under pre-emption, was jointly own; by him and the vendors, the erstwhile owners of the suit house. The trial Court upheld this plea of the plaintiff-appellant and decreed his suit On appeal, the learned Additional District Judge, Peshawar, reversed the decree on the finding that the mere fact that the plaintiff was a joint owner of a wall of the suit house and the site underneath it, did not qualify him as a co-sharer in the entire house to confer upon him a superior right of pre emption qua the vendees. A further appeal by the appellant to the High Court, Peshawar Seat, was dismissed in limine by a Division Bench.

4. Under section 12 firstly of the Act, the right of pre-emption qua the property sold vests in a person who is a co-sharer in such property. Now 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 Lis 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 jointness in one wall cannot be extended to create a right in the appellant as a co-sharer in the entire house in dispute.

5. In an analogous case reported as Rajindra Singh v. Umrao Singh and others (A I R 1925 Lah.223), a Division Bench of the Lahore High Court in examining the right of a pre-emptor on the basis of co-sharership, has observed as follows :-

6. "A person who is a part-owner of one of the walls of a house but has no right of any kind in any other part of the house whatsoever, is not entitled to call himself a co-sharer in the whole property."

7. 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.

8. The appeal is dismissed with costs.

9. K. B. A. Appeal dismissed