INAYAT KHAN Versus MURTAZA KHAN
1. MUHAMMAD HALEEM, C.J.‑‑ Leave was granted to con side whether in respect of Khasra No.29/2, the High Court had misconceive A the ratio decidendi of the case reported as Said Karim Shah v . Taj Muhammad P L D 1974 SC 383.
2. The appellant is the vendee of the land measuring 21 Kanals 5 Marlas out of 40 Kanals 10 Marlas comprised in Khasra Nos.14, 15, 29/2 of Khata No.6/10‑11 and 8‑14 situated in Mahal Chak Amir Khan, Tehsil Charsadda, District Peshawar, through a sale‑deed registered on 14th of October, 1974. The sale consideration paid was RS.l0,000.
3. The respondents, herein, pre‑empted the sale of this land by instituting Suit No.310/1 on 25th of October, 1975, for possession in the Court of Civil Judge, Charsadda claiming a superior right not only on the basis that they were co‑sharers in suit khatas and participators in the immunities and appendages but also that their land was contiguous to the suit land. The appellant resisted the suit and denied their superior right to pre‑empt the land as he claimed to be in cultivating possession of Khasra No.29/2 as a tenant which gave to him a full right of pre‑emption as against the respondents.
4. The trial Court decreed the suit not only in respect of Khasra Nos.14, 15 and 48/28 but also in respect of Khasra No.29/2 which admittedly was not contiguous to Khasra No .41/13 belonging to the respondents on the basis of the decision of this Court reported as Said Karim Shah v. Taj Muhammad P L D 1974 S C 383.
5. On appeal, the Additional District Judge, Peshawar partially accepted the appeal as it held that Khasra No.29/2 was not contiguous to the land of the respondents and, accordingly, modified the decree to this extent. In holding so, the appellate Court was of the opinion that on facts the decision of this Court was distinguishable as Khasra No.29/2 was not adjacent to Khasra No.14 or 15.
6. The respondents went in revision to the High Court and succeeded as the High Court accepted the reasoning of the trial Court in resting the finding on the above‑stated decision. This is what the High Court observed:
7. "Their Lordships of the Supreme Court who were seized of a similar question of law have held in a case Said Karim Shah v. Taj Muhammad P L D 1974 S C 383, that different Khasra Nubmers comprised in one holding or property do not become different properties in themselves and sale of a parcel of land comprised in more than one Khasra numbers is not sale of as many properties as field number but sale of one property and plaintiff owner of Khasra number adjoining only one of Khasra numbers sold could seek pre‑emption on ground of vicinage in respect of all Khasra numbers. From the above proposition of law, it is apparent that a person who is an owner of one Khasra number in a particular holding can claim superior right of pre‑emption against other Khasra numbers, too, situated in one holding i.e. Khata irrespective of the fact whether they are contiguous to each other or not on the ground of vicinage. In the instant case, the disputed Khasra numbers are situated in one holding i.e. Khasra No.6 though Khasra No.29/2 is not adjacent or contiguous to Khasra numbers 14 and 15 yet the plain tiff‑pre‑emptor can claim superior right of pre‑emption as against Khasra No.29/2 as all the disputed Khasra numbers i.e. 14 and 15 are situated in one holding i.e. Khata No.6. Reliance has, therefore, rightly been placed by the learned trial Court on the above‑cited authority of the Supreme Court."
8. In Muhammad Yusaf v. Sikandar P L D 1970 Pesh. 160, the suit property comprised of four Khasra numbers and the land of the pre‑emptor was only contiguous to one Khasra number out of the hour, and consequently it was held that as the vendee had an indefeasible right in property comprised in Khasra numbers other than number 562, therefore, he also became the owner of the property contiguous to the land comprised in Khasra No.562, in which case the right of the pre‑emptor was not held to be superior to that of the vendee. The first appeal filed by the pre‑emptor was dismissed but in second appeal the learned single Judge referred the following question for consideration to the Full Bench:
9. "Whether or 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?"
10. In that context section 12, clause thirdly of the N.‑W.F.P. Pre‑emption Act came to be interpreted and it was held as under:
11. "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 cf 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. "
12. This dictum was considered in Said Karim Shah v. Taj' Muhammad PLD 1974 S C 383 and so also the observations of Chevis, J. in Sanwal Das v. Gur Parshad (1909) 90 P R 340, to the effect that "wherever the right of pre‑emption depends on contiguity, the pre‑emptor can claim to pre‑empt as lies in a ring fence adjoining his own property; but is only stopped when he comes to something which is entirely cut off from his own property by reason of property intervening which, whether it belongs to the vendor or to any one else, is not included in the sale‑deed."
13. It was accordingly, held that a sale of a parcel of lard 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, and, accordingly, the law enunciated in Muhammad Yusaf v. Sikandar, P L D 1970 Pesh. 160, was approved. Therefore, where there is contiguity of even on Khasra number of the pre‑empter's land to the land pre‑empted, it is enough to bring the case within section 12, clause thirdly of the N.‑W.F.P. Pre‑emption Act.
14. The distinguishing feature in both the cases, Said Karim Shah and Muhammad Yusaf, is that the sale of the disputed Khasra number which constituted the holding was in one block and the land of the pre‑emptor was contiguous to one of the Khasra numbers of that block while in the instant case admittedly one of the disputed Khasra numbers is removed by a mile from the land of the pre‑emptor and the intervening lands are owned by other Khatedars. It is true that the sale is not of one individual Khasra number but of the entire holding, but as the land of the pre‑emptor is far removed from this Khasra number it does not satisfy the test of contiguity laid down in section 12, clause thirdly of the N.‑W.F.P. Pre‑emption Act. It will thus be covered by the dictum laid down in the case of Sanwal Das v . Gur Parshad (1909) 90 P R 340.
15. Accordingly, the appeal is allowed with costs and the order of the High Court is set aside with the result that the order of the first appellate Court is restored.
16. M.B.A./I‑30/S Appeal allowed.