JUDGMENT

Mir Ahmad, J - Noor Mohamed was an owner of three Khullas and 10 annas share (I understand from counsel that Khulla represents a rupee or sixteen annas) out of a total of 10 Khullas and 12 annas, in lands situated in the village of Gandi Chak Babar (Dera Ismail Khan District) represented by Khata No. 148 (now Khata No. 164). By mutation No. 70 attested on 27th February 1940, Noor Mohamed gave two Khullas 13 annas out of his three Khullas 10 annas in khasra Nos. 156, 157 and 158 in exchange to Abdul Hamid. The attesting order records the exchange of 57 kanals 14 marlas out of 220 kanals 11 marlas (the area of khasra Nos. 156, 157 and 158). By mutation No. 76 attested on 11-5-1941, Noor Mohamed sold the remaining 13 annas in the same three numbers to Abdul Hamid. One Sundar Bibi sued for preemption and she took possession of this share in the three numbers in pursuance of a decree passed in her favour. By mutation No. 77, Noor Mahamed sold khasra Nos. 1023, 1890/1024, 1025, and 1028, measuring 69 kanals 7 marlas. It was attested on 28-9-1941 Mir Alam Khan and others who are cosharers in the whole of Khata No. 148 in which the numbers sold are situated brought a suit for pre-emption, and obtained a decree on 3-2-1943.

2. By mutation No. 80, attested on 13-6-40, Noor Mohamed sold 71 kanals 6 marlas out of Khasra Nos. 459, 460, 476, 1019, 1020, 1021, 1022 and 1026, measuring 211 kanals 10 marlas to Abdul Hamid for Rs. 142-9-6. These numbers are also included in Khata No. 148.

Mir Alam Khan, Qadardad Khan, Sarbiland Khan, Ghulam Rasool Khan, Ghulam Moharrted Khan, aud Faiz Mohamed son of Noor Mohamed vendor, who are cosharers in khata No. 148, brought a suit for possession by pre-emption of the land sold by mutation No. 80 on payment of Rs. 71-6-0.

3. The vendee denied the right of the pre-emption to pre-empt the land, and said that Rupees 142-9-6 was the correct price.

Two questions arose for decision. Firstly, whether the right of the plaintiffs was superior to that of the vendee, and, secondly, whether the price had been fixed in good faith or paid.

The trial Judge held the view that the plaintiffs had a superior right of pre-emption, because they were cosharers in the whole khata, of which the numbers in dispute were a part. He was of opinion that it was not proved that the price alleged by the vendee had been fixed in good faith or paid. He referred to the decree which he had passed in favour of the same preemptors for possession of the land sold to the same vendee by mutation No. 77. He said that he had assessed the value at one rupee per kanal in that case. Keeping up the same rate he worked out the price to be Rs. 71-6-0. He, therefore, granted a decree to the plaintiffs on payment of Rs. 71-6-0.

4. An appeal was preferred by the vendee to the Senior Subordinate Judge at Dera Ismail Khan. The Senior Subordinate Judge was of opinion that the vendee became a cosharer in the whole Khata by obtaining land in Khasra Nos. 156, 157 and 158 by exchange (mutation No. 70). He observed that the plaintiffs and the vendee had, therefore, equal rights and on this finding he dismissed the suit.

The pre-emptors have come up on revision to this Court. They have urged that their right to pre-empt is superior to that of the vendee.

The relevant portion of Section 15, Punjab Preemption Act, which applies to this case, is reproduced below:

Subject to the provision of Section 14 the right of pre-emption in respect of agricultural land and village immovable property shall vest:

(a). . . . .

(b)where the sale is of a share out of joint land or property, and is not made by all the cosharers jointly,

firstly, . . . . . . . . . . . . . secondly, . . . . . . . . . . . . . thirdly, . . . . . . . . . . . . . fourthly, in the cosharers; . . . .

5. The question is whether the plaintiffs are cosharers in the land as required by Section 15(b) fourthly, and, if so, whether the vendee is also such cosharer.

The plaintiffs are undoubtedly cosharers in each kha