Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Civil Petition for Leave to Appeal No. 210/R of 1985, decided on 21st January, 1986.
(On appeal from the judgment and order of the Peshawar High Court, dated 27‑2‑1985 in R.S.A. No. 49 of 1978).
‑‑‑Art. 185(3)‑‑North‑West Frontier Province Pre‑emption Act (XIV of 1950), S.12‑‑Pre‑emption‑‑Joint Khatedar‑‑Right of possession by pre‑emption‑‑Waiver of‑‑Petitioners purchasing land through registered sale‑deed‑‑Respondent being joint Khatedar, filing suit for possession through pre‑emption‑‑Plea that respondent having demanded/ received mortgage amount on land in dispute before delivering mortgage deed and possession of land, had waived his right of pre‑emption, repelled‑ Petitioners failing to produce any cogent evidence to show acquiescence on part of respondent‑‑Fact that mortgage amount was received by respondent after sale would also show that he had not waived his right of pre‑emption.
Imam Din v. Jalal and another A I R 1922 Lah. 42 and Gangs. Singh and another v. Jhandasingh and another A I R (35) 1948 Lah. 5 rel.
Munir Ahmad Bhatti, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.
Shah Badshah, Advocate Supreme Court and Jan Muhammad Khan, Advocate‑on‑Record (absent) for Respondent.
Date of hearing: 21st January, 1986.
‑Petitioners Nos.3 to 17 entered into an agreement to sell land measuring 8 Kanals and 7 Marlas to respondents Nos.1 and 2. The said agreement was registered on 3‑9‑1965. On 11‑11‑1965 the respondent issued a notice to Dr. Abdul Karim Khan father of petitioners Nos.3 and 4 saying that the land is subject‑matter of a charge of Rs.2,000 as mortgage money and if the petitioners (purchasers) wanted to purchase the land then they would do so after having paid Rs.2,000 to the respondent and for obtaining the possession. The petitioners allegedly paid the amount of Rs.2,000 and the respondent returned the mortgage deed Exh.D/3 to D/22. Thereafter the agreement to sell was concluded on 3‑12‑1965 by way of mutation and balance amount was paid on the said date according to evidence.
2. The respondent filed suit for possession through pre‑emption on the basis of being joint Khatedar alongwith other grounds, on 15‑3‑1966. The suit was contested. The learned trial Judge dismissed the suit of the respondent with costs. Appeal filed was accepted by the learned Additional District Judge per order, dated 10‑11‑1975. Thereafter revision petition was filed in the High Court which was dismissed with no order as to costs, vide the impugned order, dated 27‑2‑1985.
3. It was contended that as the respondent had demanded Rs.2,00a as mortgage amount on the said land before delivering its possession to the petitioners, he had waived the right of possession by pre‑emption by his conduct and respondent was estopped from filing suit for pre‑emption; that in the circumstances of the case it is clear that respondent had no intention to pre‑emption either before or after the execution of the sale‑deed; that another overt act of the respondent in the form of mortgage deed Exh.D/3 and returning deeds Exhs.D/3 to D/22, established waiver and is further strengthened by the fact that they delivered the suit property to the petitioners without reserving any right or making any claim.
4. We have examined the contentions raised by the learned counsel. We agree with the observation of the learned High Court made in the impugned judgment, as follows:‑
"The appellants had failed to produce any cogent evidence to show acquiescence on the part of the respondent No.1. The fact that the mortgage amount was received by the respondent No.1 after the sale would also show that he had not waived his right of pre‑emption. In support of the latter circumstance reference may be made to the cases of Imam Din v. Jalal and another AIR 1922 Lah. 42 and Gangs, Singh and another v. Jhandasingh and another A I. P. 1948 Lah. 5."
Thus, we find this petition to be without merit same is, accordingly, dismissed.
M. I. Petition dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer