Find a Lawyer

Civil Petition for Special Leave to Appeal No. 952 of 1976, decided on 31st March, 1982.

(On appeal from the judgment dated 17‑7‑1976 of the Lahore High Court, Lahore in R. S. A. No. 311 of 1976).

--‑Para 25 (3) (d) read with Constitution of Pakistan (1973), Art. 185 (3) Leave to appeal‑Granted to consider whether petitioner having been found to be a tenant had a preferential right to sale of land in dispute and whether petitioner improved his status and acquired superior right as co‑sharer before filing of suit and lastly whether pre‑emptor in case in band not possessed of superior right at time of institution of suit and at time of its decree hence suit merited dismissal. [Pre‑emption].

Ch. Hamidud Din, Advocate Supreme Court and Ejaz Ahmad Khan, Advo cate‑on‑Record for Petitioner.

Ch. Mahmoodul Hassan, Advocate Supreme Court and Maqbool Ahmad Qadri, Advocate‑on‑Record for Respondent.

Date of hearing: 31st March, 1982.

. ‑This petition is directed against the judgment dated 17‑7‑1976, passed by a learned Single Judge of the Lahore High Court in R. S. A. No. 311 of 1976.

The facts briefly are that one Abdul Karim sold agricultural land measur ing 19 kanals 18 marlas bearing Khasra Nos. 8, 23 and 26, situated in village Gunjianwali, Tehsil Pasrur, District Sialkot, for Rs. 12,500 to the petitioner vide Mutation No. 2 sanctioned on 10‑2‑1972. It may be mentioned that the petitioner was a tenant of Khasra No. 8 and a mortgagee of Khasras Nos. 23 and 26.

On 7‑2‑1973, respondent Shamsud Din and one Muhammad Shafi (whose name was struck off from list of respondents by the High Court) filed a suit for possession through pre‑emption on the ground that they were co‑sharers, in the Khata since before the sale in which the said land was situated. The suit was defended by the petitioner, inter alia, on the ground that the plaintiff bad no right of pre‑emption because the petitioner/vendee was a tenant of the land. The learned trial Court, however, decreed the suit on 11‑7‑1974 holding that the vendee/petitioner was not a tenant and that the plaintiff was a co‑sharer in one Khata. The petitioner challenged the above decree by way of an appeal and the Additional District Judge in his judgment passed on 27‑1‑1976, accepted the contention of the petitioner that he was a tenant so far as Khasra No. 8 was concerned but only a mortgagee so far as Khasras Nos. 23 and 26 were concerned. It was further held that the peti tioner could not take advantage of his position as a tenant in Khasra No. 8 because even though under Para. 25(3) (d) of the Martial Law Regulation No. 115 of 1972 a tenant shall have the first right of pre‑emption in respect of the land comprised in his tenancy but this right was available as from Kharif 1972. Since the petitioner had purchased the disputed land on 10‑2‑1972 and was no longer a tenant from 1972, therefore, he did not possess a superior and equal right to defeat the case of the pre‑emptor. The petitioner's appeal was, accordingly, dismissed.

Aggrieved by the above order, the petitioner then filed a second appeal before the Lahore High Court, Lahore. This appeal was, however, dismissed (on 17‑7‑1976) but a finding nevertheless was recorded that the petitioner was a tenant of Khasra No. 8 on 10‑2‑1972 and could still be regarded as a tenant in Kharif 1972 (when the tenants were given the first right of pre emption) and in reality had improved his status under section 21‑A of the Pre emption Act, and thus, defeated the pre‑emption so far as Khasra No. 8 was concerned. However, no advantage of this finding was given to the petitioner on the reasoning, that though the respondents did not succeed in showing that they were co‑sharers in the khata so far as remaining khasras were concerned but it made no difference because the vendee (petitioner) was an owner in the same Khewat or Mauza while Respondent No. 1 was the co-owner in the Deh and had, thus, a superior right.

By this petition for leave to appeal the above order of the High Court is challenged.

Ch. Hamidud Din, learned counsel for the petitioner, in support of this petition, submits that in view of the finding of the High Court, as also that of the Additional District Judge that the petitioner was a tenant of Khasra No. 8 and, therefore, had a preferential right to its sale under para. 25(3)(d of Martial Law Regulation No. 115, the suit was liable to dismissal qua this khasra No. 8. As a necessary corollary the suit was liable to dismissal qua Khasra Nos. 23 and 26 also because the petitioner had improved his status and acquired superior right as a co‑sharer in Khasra No. 8 before the filing of the suit (which was instituted on 7‑2‑1973). It is pointed out that the law is settled that the pre‑emptor must have a superior right of pre‑emption at all the three crucial stages of the suit, namely, at the time of the sale and at the time of the institution of the suit and at the time of decree. In this case, the pre‑emptor was not possessed of such superior right at the time of the institution of the suit and at the time of the decree. Hence the suit merited dismissal.

These submissions require further consideration. Leave is, accordingly, granted.

Security in the sum of Rs. 2,000.

Interim stay to continue.

Leave granted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.