Find a Lawyer

Civil Petition No. 45 of 1982, decided on 29th February, 1984.

(On appeal from the judgment dated 13‑12‑1981 of the Lahore High Court in R. S. A. No. 74 of 1981).

‑‑ Art. 185(3)‑Punjab Pre‑emption Act (I of 1913), S. 15‑Prefren tial right of pre‑emption‑Person in order to prove his preferential right of pre‑emption relying only upon school leaving certificate which was tendered in evidence by his counsel‑Neither such person nor any body on his behalf appearing as witness to support his claim High Court relying only upon averment made by such person in his plaint that he was son of vendor but same was controverted by opposing party in their written statement‑Contention that findings of Courts below were based on no evidence‑Leave to appeal granted to examine contention.

‑‑ Art. 185(3) ‑ Punjab Pre‑emption Act (I of 1913), S. 15‑Civil Procedure Code (V of 1908), O. XLI, r. 5‑High Court granting stay to petitioners subject to their paying money on yearly basis to respon dent as compensation for use and occupation of land in dispute with direction that if matter remains pending beyond a year direction shall be deemed to be repeated on expiry of every year‑Contention that stay was granted on onerous terms since profit of land in dispute did not exceed more than half the amount fixed as compensation and prayed that stay be extended or payment of half the compensation money fixed by High Court‑‑Supreme Court while granting leave to appeal ordered Tehsildar of area, where property was located, to hear parties on question of income of land in dispute and submit report to Supreme Court as to proper amount that should be fixed as compensa tion for use and occupation of land.

Sh. Hamid Mukhtar, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing : 28th February, 1984.

‑It has, inter alia, been argued that the respondent in order to prove his preferential right of pre‑emption relied only upon the school leaving certificate which too was tendered in evidence by his counsel. Neither the respondent nor any body on his behalf appeared in the witness box to support this claim. The learned Judge in the High Court relied only upon the averment made by the respondent in his plaint that he was the son of the vendor but the same was controverted by the petitioners herein, in their written statement. Hence the finding of the Courts below that the respondent had established his preferential right was based on no evidence.

Leave is, accordingly, granted.

Security for costs of the respondent shall be furnished in the sum of Rs. 1,000.

As regards the question of stay we observe that a learned Single Judge had passed an order in Chambers on 29‑11‑1982 allowing stay to the petitioners, subject to their paying Its. 6,000 to the respondent within fifteen days by cash or money order as compensation for use and occupation for one year (in 1982 January to December, 1982). It was further directed that if the matter remains pending beyond a year this direction shall be deemed to be repeated on expiry of every year. The learned counsel states that the stay was granted on onerous terms since the profits of the land in dispute do not exceed more than about rupees three thousand per year. He wishes the stay to be extended on payment of Rs. 3,000 per year as compensation for use and occupation during the pendency of the appeal.

Let the Tehsildar of the area, in which the property is located, hear the parties on this question and submit a report, as to the proper amount that should be fixed for compensation for use and occupation of the land in dispute, to this Court within three months after making necessary inquiry into the matter.

M. Z. M. 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.