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Civil Revision No.58-D of 1980, decided on 18th April, 1984.

---S.5(c)--Pre-emption--Purchase of land for construction of house- Suit for pre-emption on basis of having contiguous house and superior rights of pre-emption-- Vendee already owning considerable landed property in village and a house as well--Claim for exemption from pre-emption and protection under S.5(c) of Act, 1950, not accepted- Held: Law providing for exemption in certain cases but equally making incumbent upon vendee, seeking such exemption, to establish his claim for protection in a bona fide manner like that of a prospective pre-emptor--For exemption from pre-emption by a prospective pre-emptor, who otherwise fully qualifies to get land through pre-emption, intention of vendee and motive behind that is to be seen--Vendee held, was not entitled to protection claimed in circumstances.

Muhammad Hassan v. Zafar Khan and others P L D 1962 Pesh. 199; Majid Khan and others v. Mujahid Khan and others P L D 1966 Pesh. 264; Faqir Muhammad v. Akbar Shah P L D 1973 S C 177; Gulzada and others v. Raza Khan and others 1975 S C M R 325 ref.

H. Saadullah Khan Miankhel for Petitioner.

Muhammad Ali Jan Khan for Respondent.

Date of hearing: 4th April, 1984.

This is a civil revision petition under section 115 C P C whereby the plaintiff /petitioner has challenged the judgment and decree of the Court of District Judge, Bannu vide which he accepted the appeal of the defendant/ respondent and dismissed the suit of the plaintiff /petitioner which was earlier decreed by the learned Civil Judge, Bann vide his judgment and decree dated 7-10-1978.

2. Facts giving rise this civil revision are that; vide registered sale deed 285, dated 4th September, 1976, Major Zargul Khan sold an area of 101 Marlas of land out of his holding measuring one Kanal one Marla to Naqibullah Khan son of Haji Alam Khan caste Pashtoon, resident of Kot Mehtar, Tehsil and District Bannu, on payment of Rs.15,000/-. Ghulam Qadir Khan son of Muhammad Akbar Khan, caste Afghan Mughal Khel, resident of Kot Mehtar (Kotka Jangi Khel), Tehsil and District Bannu, pre-empted the sale on the bases of co-sharership and contiguity etc. per Civil Suit No. 174/1 of 1978.

3. The suit was hotly contested by the defendant-vendee and the pleadings of the parties led to the framing of following issues by the trial Courts:----

(1) Whether the transaction in suit is exempt from pre-emption as the land has been purchased for the construction of house OPD.

(2) Whether the plaintiff is estopped by his own conduct to bring the present suit OPD.

(3) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction OPD.

(4) Whether, the ostensible sale amount of Rs.1,500/- was fixed in good faith or paid OPD.

(5) Whether the plaintiff has a superior right of pre-emption OPP.

(6) Relief.

4. After recording the evidence: of both the parties as they wished to adduce the learned trial Judge, decided issues Nos.1, 2, 3 and 5 in favour of the plaintiff. On issue No. 4 the learned trial Judge held Rs.1,500/- to be the sale consideration. The learned District Judge on appeal, however, decided issue No. 1 in favour of the vendee defendant and as a result thereof dismissed the suit of the plaintiff /petitioner.

5. Arguments of the learned counsel for both the parties were heard at length and record of the case was thoroughly examined. The learned District Judge was of the view that since the vendee defendant was not the owner of house or a vacant site measuring more than one kanal in the said village, therefore, he was entitled to the protection contemplated by section 5(c) of the N.-W.F.P. Pre-emption Act, which provides that:-

"No right of pre-emption shall exist in respect of the sale of, or the foreclosures of, a right to- redeem .. .. .. .. .. .. ..

(c) agricultural land or village immovable property, consisting of an area measuring not more than two kanals by a resident of the village in which such land is situated, where he neither owns a house nor a vacant site measuring more than one kanal, for constructing a house for his own occupation".

In this connection the statement of Patwari Halqa, namely, Sher Daraz (PW-1,) would indicate that the defendant-vendee is owner of land, measuring 14 kanals 1 marla, in the same 'Mahal'. He further stated that one Kamal and nine marlas of land was purchased by Naqibullah Kihan, defendant-vendee, vide mutation No. 2528, attested on 27-101956 from Mir Ali Khan, which is at a distance of about three furlongs from village Kot Mehtar. It is also in the evidence of the patwari that land, measuring 12 kanals and 12 marlas, was given in gift vide mutation No. 3299, dated 22-5-1977 to Naqibullah Khan, alongwith four others, by Azim Khan Arithmetically the area that falls to the share of Naqibullah Khan comes to 2 kanals 10 marlas. Niqibullah Khan Defendant-vendee in his statement also admitted that he has got a house in the same village. He also admitted that his father has got five other houses in the same village anti that they are five brothers in all.

6. The learned District Judge was persuaded in arriving at the conclusion of extending protection under section 5(c) of the N.-W.F.P. Pre-emption Act to the defendant-vendee on the basis of the authority reported as Muhammad Hassan v. Zafar Khan and others (P L D 1962 Peshawar 199) wherein it was held that:--

"What the plaintiff pre-emptor could establish was that one of the vendees, namely, Safdar Ali Khan, owned four kanals of agricultural land in the village. If the legislature intended that the ownership of agricultural land should be a bar then it should have specifically mentioned it as it had done in the case of property which a person was competent to buy for the construction of a house on it. Agricultural land or village immovable property is the property described which can be purchased for the construction of a house, but he cannot purchase this property if he is the owner of a vacant site or a house, and not that he was owner of agricultural land".

However, the learned District Judge flagrantly failed to notice the authority reported as Majid Khan and others v. Mujahid Khan and others (P L D 1966 Peshawar 264) wherein a Full Bench of the Peshawar High Court at page 278 held that:-

"As already noticed, sub-clause (c) is unhappily worded, but what was clearly intended, as indicated above, was to exempt from pre-emption the sale of two kanals of agricultural land or immovable property in favour of the resident of a village, if (1) he had no house at all or (2) he had no vacant site measuring one kanal for constructing a house."

Learned counsel for the defendant-vendee on the other hand argued that this judgment of the Full Bench of the Peshawar High Court was not approved by the Supreme Court in its judgment reported as Faqir Muhammad v. Akbar Shah (reported as P L D 1973 SC 177) and was declared to have become obsolete in its later judgment by the Supreme Court, reported as Gulzada and others v. Raza Khan and others (1975 S C M R 325). In this sequence it would not be out of place to state here that the learned counsel for the vendee-defendant has very conveniently ignored the dictum of the Supreme Court in the same judgment (1975 S C M R 325) wherein it had been observed at page 326 that:

"On the balance of evidence produced in the case, the learned Chief Justice had no difficulty to concur in the finding that the petitioners" own considerable landed property in the village and more than one house, much of which he had rented to one Azim son of Faqir". On this finding, therefore, in the opinion of the Chief Justice, the petitioner could not possibly invoke the provisions of section 5 of the 1950 Pre-emption Act to resist the suit of pre-emption."

It may well be stated here that the observations of the learned District Judge that "the landed property owned by the vendee is agricultural land pure and simple lying (as is evident from the statement of the Patwari PW-1) and there is not a scintilla of evidence on record to suggest much less prove that it is fit for construction of a house" are based on no evidence. Nowhere the Patwari stated in the terms calculated by the learned District Judge. On the other hand the admission of the Patwari (PW-1) on a Court question that there are other small kothas near the property obtained by the defendant vide sale mutation No. 2528 dated 27-10-1956, clearly suggests that the premises were quite fit for the construction of a house.

7. Learned counsel for the defendant-respondent also placed on record certified copy of a judgment, dated 13-3-1984, of Mr. Justice Allah Bakhsh Khan a learned Judge of this Court, but with respects I would say in this judgment reference to the judgment reported as 1975 S C M R 32,5 was not cited. It appears that this judgment of the Supreme Court was not brought into the notice of my learned brother-J.

8. Reverting back to the facts of the instant case, as already observed, the defendant- vendee has got land, measuring one kanal and nine marlas in the same village, which, according to the statement of the Patwari is just three furlongs from village Kot Mehtar. The distance of three furlongs cannot be called to be a considerable distance. To make exercise of right of pre-emption more and more difficult, it has become a custom to adopt various modes of acquisition of title. True, the law does provide for exemption in certain cases but it equally makes incumbent upon the vendee; seeking such exemption to establish his claim for protection in a bona fide manner like that of a prospective pre-emptor. In a case where the defendant vendee reported as P L J 1984 Peshawar 48. Claims protection under section 5(c) of the N.-W.F.P. Pre-emption Act, in other words exemption from pre-emption by a prospective pre-emptor, who otherwise fully qualifies to get the land through pre-emption, we have to see to the intention of the vendee and the motives behind that. The perusal of the evidence on record would clearly indicate that the intention of the vendee-defendant was just to get land through all possible tactics. Since the plaintiff-petitioner was admittedly having superior right of pre-emption on the basis of having contiguous house, the vendee-defendant could not defeat the right of pre-emption except to claim protection as envisaged by section 5(c) of the N.-W.F.P. Pre-emption Act. But keeping in view the fact that the vendee defendant owns considerable landed property in the village and also owns a house as well, he cannot invoke the ingredients of exemption as contemplated by section 5(c) of the N.W.F.P. Pre-emption Act. It may well be elaborated here that nowhere the vendee-defendant has specified the area on which his house is situate. Cautious of the fact that in village people do have houses in kanals, it can be conveniently presumed that his house is also situate in an area of more than a kanal or even more than that.

9. The sheet-anchor of the discussion above would lead one to the irresistible conclusion that the defendant-vendee is not entitled to the protection claimed under section 5(c) of the N.-W.F.P. Pre emption Act and, otherwise the plaintiff-petitioner having superior right of pre-emption, he is entitled to the decree as prayed for.

10. Accordingly I would accept this Revision Petition, set aside the judgment and decree of the learned District Judge, and would restore those of the learned trial Court. Since, however, law point was involved in this Revision Petition, I would leave the parties to bear their own costs.

M.I./273/P Petition accepted.

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