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Civil Revision No. 318 of 1981, decided on 8th May, 1983.

‑‑ S. 4‑Pre‑emption, superior right of‑Re‑sale of a portion of suit land to vendor, held, does not affect right of pre‑emptor because he has to challenge original transaction and latter transactions do not affect his pre‑emptive right after property reconveyed to vendor.

‑‑ S. 4‑West Pakistan Land Disposition (Saving of Shamilat, Ordinance (I of 1959) S. 3‑Partial pre‑emption ‑Pre‑emptor non suited‑Pre‑emptor failing to pre‑empt share in Shamilat and reducing his suit to status of partial pre‑emption ‑Suit, held, bad and pre‑emptor non‑suited ‑ Pre‑emptor has to pre‑empt entire area sold out and cannot pick and choose at his own sweet will.

P L D 1972 Pesh. 113 rel.

Muhammad Akhtar Khan for Petitioner.

Abdul Samad Khan for Respondent No. 1.

Date of hearing : 8th May, 1983.

Syed Zafar Ali Shah, petitioner‑defendant No. 1, had purchased from Mst. Babo Jan, predecessor of defendant‑respondents Nos. 2 and 3, land measuring 6 Kanals 10 Marlas bearing Khasra Nos. 1054, 1055/2 and 250 for Rs. 5,000 vide Mutation No. 1494 attested on 17th May, 1972 but a fictitious sale price of Rs. 9,750 was mentioned in the mutation. Fazal Shah, plaintiff‑respondent No. 1, brought a suit whereby he challenged the sale of an area of 7 Marlas bearing Khasra N s. 1055/2 as being his ownership and pre‑empted the remaining area of 6 Kanals 3 Marlas bearing Khasras Nos. 1054 and 250 claiming co‑ownership, contiguity and participation in immunities and appendages of the suit land. The petitioner‑defendant No. 1 contested the suit and pleadings of the parties gave rise to the following issues :

(1) Whether plaintiff is owner in possession of the suit property measuring 7 Marlas and the sale predecessor of defendants Nos. 2 and 3 on 17th June, 1972 and Mutation No. 1494 is void and ineffective upon. rights of the plaintiff 7 O.P.P.

(2) Whether plaintiff has got superior right of pre‑emption with respect to property mentioned in para. B of the prayer O.P.P.

(3) Whether the sum of Rs. 9,750 was fixed in good faith or actually paid O.P.D.

(4) Market value O.P.P.

(5) Whether the plaintiff' has got a cause of action O.P.P.

(6) Whether the suit is within time O.P.P.

(7) Whether the plaintiff has waived his right of pre‑emption O.P.P.

(8) Whether the suit is liable to be dismissed being partial pre‑emp tion O.P.P.

(9) Whether the plaintiff is estopped from suing O.P.D.

(10) Whether the suit is trot properly valued for court‑fee and jurisdiction O.P.P.

(11) Relief:

2. After recording evidence of the parties, as they wished to adduce, the learned Civil Judge, Peshawar held that the market value of the suit land was Rs. 5,695, that vendee‑defendant No. 1 had not possessed any superior pre‑emptive right whereas the plaintiff possessed such a right. The learned Civil Judge, therefore, granted a decree in favour of the plaintiff on payment of the said sale price vide his judgment, dated 12th March, 1975. Feeling aggrieved defendant No. 1 filed an appeal in the Court of Mr. Abdul Khaliq Khan, District Judge, Peshawar. The learn ed District Judge framed the following additional issue and remanded the case back to the trial Court under Order XLI, rule 25, C.P.C. for re cording evidence and giving finding on the additional issue with the direction that after doing the needful, the file with finding be sent back to the District Court :

Additional issue :

Whether the re‑sale and exchange mutations with regard to Khasra No. 1054, are illegal and fictitious What shall be its effect on the right of pre‑emption of the plaintiff

This judgment was made, on 5th April, 1977. The learned Civil Judge decided the additional issue against the vendee‑defendant and this time, the appeal was heard by Miss Khalida Yousaf, Additional District Judge III, Peshawar. The learned Additional District Judge accepted the appeal regarding decree for possession by pre‑emption and dismissed it regarding the land comprised in Khan No. 1055/2 ride judgment, dated Ist April, 1979. This time, feeling aggrieved, the plaintiff Fazal Shah filed a revision petition in the High Court; Peshawar, which was heard by my learned brother Shih Abdur Rashid, J, who ,ride his judg ment, dated 30th May, 1980 remanded else case back to the Additional District Judge III, Peshawar for giving reasons in the judgment in support of the decision on the additional issue and the other points which were raised before her. This time, the appeal was heard by Mr. Javaid Nawaz Khan Gandapur. Additional District Judge, Peshawar, who decided the additional issue against the vendee‑defendant and upheld the judgment of the learned Civil Judge, dated 12th March. 1975. The present revision peti tion, filed by Syed Zafar Ali Shah, is directed against the said judgment of Mr. Javaid Nawaz Khan Gandapur, Additional District Judge. Peshawar.

3. 1n so far as the prayer in the suit of a, declaration of ownership of Syed Fazal Shah plaintiff‑respondent over the land measuring 7 Marlas bearing Khasra No. 1055/2 is concerned, the learned counsel for the appellant had no objection, because the said claim was supported by a judgment, dated 2nd July, 1948 in Suit No. 183/1 of 1949 decided in favour of the plaintiff‑respondent No. 1. However, the learned counsel for the petitioner challenge the findings of the lower Courts on issues Nos. 2, 3. 4, 8 and additional issue.

4. In so far as issue No. 2 and additional issue are concerned, it may be stated that the plaintiff Syed Fazal Shah definitely possessed the superior pre‑emptive right than the vendee‑petitioner. Moreover, the re sale of a portion of the suit land to Mrt. Babo Jan add the exchange transaction attested ride Mutations Nos. 1558 and 1559 appears to be fictitious transaction. The re‑sale of a portion of the suit land to the vendor does not affect the pre‑emptive right to Syed Fazal Shah, because he has to challenge the original transaction and the latter transactions do not affect his pre‑emptive rights after the property is reconveyed to the vendor. I, would, therefore, uphold the findings of the learned lower Courts on both these issues.

5. In so far as issues Nos. 3 and 4 are concerned, the only grievance of the learned counsel for the petitioner was that it was held by the learned lower Courts the market value of the suit land was Rs. 52 per Marls and as such the price of the suit land measuring 6 Kanals 3 Marlas comes to Rs. 6.396 and not Its. 5.699.40 as held by the trial Judge and Rs. 3,694 as held by the learned Additional District Judge. I, therefore, hold that the market value of the suit land is Rs. 6,396 and decide both these issues accordingly.

6. The real point which was very vehemently urged by the learned counsel for the petitioner was regarding partial pre‑emption as envisaged in issue No. 8. It was urged by the learned counsel for the petitioner that the petitioner had purchased the suit land alongwith share in Shamilat as would be apparent from the order of attestation made by the Revenue Officer ten Mutation No. 1494. That order clearly states that Mst. Babo Jan, the vendor‑predecessor of respondents Nos. 2 and 3 had sold the suit land to the petitioner alongwith share in Shamilat, whereas Syed Fazal Shah, the plaintiff respondent had pre‑empted the land situated in Khasras Nos, 1054 god 250 without pre‑empting the share is Shamilat. No explanation has been given by the pre‑emptor for leaving out the share in Shamilat of the vendor from his suit. The sale of the suit Khasras Nos alongwith share in Shamilat clearly shows that the vendor was possessed of a shaft in Shamilat proportionate to her owner ship of the suit Khasras numbers and she had also sold that share to the petitioner. Failure by the pre‑emptor to pre‑empt the share in Shamilat has reduced his suit to the status of partial pre‑emption. The Pre‑emption Act does not allow partial pre‑emption. The pre‑emptor has pre‑empt the entire area sold out. He cannot pick and choose area at his own sweet will. In the similar case, where the pre‑emptor had failed to pre‑empt the share of Shamilat alongaith the area sold, the cast is) reported in P L D 1972 Pesh. 115, the suit was held to be of partial pre ‑emption and the pre‑emptor was non‑suited. It was urged by the learned counsel for respondent No. 1 that under section 3 of the West Pakistan Land Dispositions (Saving of Shamilat) Ordinance, 1959 the suit was not bad for partial pre‑emption as specific area of share in Shamilat was not mentioned in the sale mutation. But, I am afraid, this plea is not available to respondent No. 1. for the reason that section 3 of the said ordinance protects only that Shamilat which has not been specifically mentioned as subject‑matter of a disposition. The perusal of section 3 of the Ordinance would show that it is nowhere lays down that specific Khasra No. or specific area of share in Shamilat should also be mentioned in a transfer deed. It only lays down that Shamilat shall not be deemed to be included in any disposition of land unless specifically mentioned as subject‑matter of the disposition. The sale Mutation No. 1494 clearly lays down that a share in Shamilat was transferred to the petitioner. This would mean that a fair compliance of provisions of section 3 of the Ordinance was made in the sale transaction. The net result of the above discussion is that the suit was bad for partial pre‑emption and. the plaintiff respondent No. 1 should have been non‑suited on that account. The learned lower Courts have erred in not taking note of this legal defect in the suit.

7. I, therefore, partially seeps this revision‑petition to the eaten that the suit of the plaintiff‑respondent No. 1 for possession by pre‑emption is dismissed, while the judgment and decree of the learned love Courts with regard to declaration regarding land measuring 7 Marlas bearing Khasra No. 1055/2 is maintained. No order as to costs.

M. Y. H. Petition partly accepted.

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