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Civil Petition for Leave to Appeal No. 252/11 of 1984, decided on 5th October, 1985.
(On appeal from the judgment and order of Peshawar High Court, dated 27th June, 1984 in Civil Revision No. 31/Abbottabad/78).
-‑‑Art. 185(3)‑‑N.‑W.F.P. Pre‑emption Act (XIV of 1950), S. 12 Leave to appeal granted to consider question whether holding right of pre‑emption to be inheritable is neither in accord with Muslim Law of Pre‑emption nor N.‑W.F.P. Pre‑emption Act, 1950 recognises any such right; and that right of a person to one for pre‑emption is a simple personal right.
P L D 1969 Lah. 249 ref.
Abdul Hakim Khan, Advocate Supreme Court and Ch. Akhtar Ali Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 5th October, 1985.
Learned counsel contends that the decision of holding the right of pre‑emption to be 'inheritable' is neither in accord with the Muslim Law of Pre‑emption nor the N.‑W.F.P. Pre‑emption Act, 1950 recognizes any such right; and that the right of a person to sue for pre‑emption is a simple personal right.
2. The land in dispute was sold by Muhammad son of Bakhtawar to Azizur Rahman and Abdul Rehman petitioners /vendees by registered sale‑deed, dated 25‑4‑1975 incorporated in the revenue record by Mutation No. 172 attested on 30‑6‑1976.
3. Muhammad Nawaz plaintiff /respondent brought a suit for possession by pre‑emption alleging that he was a co‑sharer and contiguous owner and that he became co‑sharer and contiguous owner on 18‑2‑1976 on the death of his father. Petitioners /vendees contested the suit on the ground that the respondent /pre‑emptor had no superior right of pre‑emption and that he had no cause of action. The learned Civil Judge held that upon the death of his father, Muhammad Nawaz respondent/pre‑emptor succeeded to his superior right and, hence decreed the suit with costs, per judgment, dated 28‑1‑1978.
4. The petitioners/ vendees filed an appeal which was heard by the Additional District Judge who, vide his order, dated 6‑5‑1978 accepted the appeal holding that since the father of Muhammad Nawaz died without lodging the suit, his superior pre‑emptive right will now devolve on the plaintiff /respondent. Aggrieved of this judgment and decree the plaintiff /respondent filed revision petition before the Peshawar High Court and a learned Single Judge, after hearing the parties, accepted the revision petition vide the impugned judgment, dated 27‑6‑1984. Point raised by the learned counsel also referred to judgment of a single Bench of the High Court in C.R. 116 of 1978 and P L D 1969 Lah. 249, in support of his contention.
5. Having considered the contention raised by the learned counsel, as mentioned in the first paragraph of this Order, we grant leave to consider the question raised by the learned counsel. Security rupees two thousand and five hundred with liberty to the parties to file additional documents, if desired.
M.Y.H. Leave granted.
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