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Civil Revision No. 299 of 1956, decided on 29th November 1960.

S. 5 (c)‑"Measuring more than one kanal"‑Qualify both "house" and "vacant site"‑.Owner of house less than one kanal in area purchasing land less than two kanals‑Entitled to benefit of exemption.

The words measuring "more than one kanal" towards the end of clause (c) of section 5 of the North‑West Frontier Province Pre‑emption Act, 1950 qualify both "house" and "vacant site", as the words "more than two kanals" qualify the words "agricultural land" and "village immovable property" (i.e. a house). The plan is that a person who owns no house at all and intends to build one, should have the liberty of building a house on an area of two kanals. Similarly a person who owns a house or a vacant site but its area is less than one kanal, should also have the concession of building another house on an area of two kanals if the area of his previous house is less than one kanal. A house standing on an area of less than one kanal is not considered fit for human habitation, and the owner of such a house has been encouraged to build another house or an area of two kanals. The Legislature, therefore, gives to the owner of a house of less than one kanal in area permission to purchase without fear of pre emption, another house on an area of two kanals.

Ahmad Yar for Petitioner.

Abdur Rashid and Muhammad Jamshaid for Respondent.

Dates of hearing: 17th October 1960and 24th November 1960.

By a registered sale deed dated 26th April 1954, one Nur Ahmad sold an area of four marlas, situated in village Gujar Garhi, to Usmanuddin, and this sale was pre‑empted by Mst. Shahzadgai on the ground that she was a co‑sharer in the property sold. In defence, Usmanuddin vendee pleaded that the sale was exempt from pre‑emption under section 5 (c) of the North West Frontier Province Pre‑emption Act, 1950, because the land was purchased for the purpose of constructing a residential house. The trial Judge, holding the sale to be exempt from pre‑emption, dismissed the suit on the 23rd of February 1956. In his view it fell within the exemption pleaded.

2. Mst. Shahzadgai went in appeal against the decision of the trial Judge and her appeal was also dismissed by the Senior Sub Judge, Mardan by his order dated the 16th of July 1956. She has come to this Court in revision.

3. The pre‑emptor's right of pre‑emption is not in dispute and the question which requires decision is whether the sale is exempt from pre‑emption under the provisions of clause (c) of section 5 of the North‑West Frontier Province Pre‑emption Act, 1950.

4. Amongst other properties exempted from pre‑emption by the provisions of section 5 of the Pre‑emption Act, clause (c) exempt the following property :‑

"(c) agricultural land or village immovable property, con sisting of an area measuring not more than two kanals purchased 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."

5. On analysis of this clause, it will be found that a sale in order to be exempt from pre‑emption should satisfy the following four conditions :‑

(1) The sale should be of agricultural land or village immov able property, measuring not more than two kanals.

(2) The sale must be in favour of a person who is a resident of the village in which the property sold is situated.

(3) The vendee should not already bean owner of a house or a vacant site, and both the house and the vacant site owned should not be more than one kanal in area.

(4) The land purchased must be for the purpose of construc ting a house for his own occupation.

6. Evidence has been led to show that the vendee had purchased a house measuring three marlas and sersai in area, in village Gujar Garhi, on the 1 at of October 1942. Evidence has also been led to show that he acquired by gift a house in Mardan on the 13th of September 1946, the area of which is 72 marlas.

7. The two Courts below have found that he was a resident of village Gujar Garhi, he was held to be only a temporary resident of Mardan where he had taken up residence because he held an employment under the Mardan Municipality. In the gift deed of the 13th of September 1946, under which he acquired the house in Mardan, he was shown to be a resident of Gujar Garhi and only a temporary resident of Mardan.

8. The vendee contended that the sale in his favour satisfies the four conditions laid down in section 5 (c) of the Pre‑emption Act. On that contention, he pleaded for the sale in his favour, exemption from pre‑emption. His argument was that the area of the village immovable property purchased by him, which is under pre‑emption was, less than two kanals that he is a resident of Gujar Garhi, that the house which he already owns has an area of less than one kanal and the land purchased is intended for erecting a house for his own occupation.

9. As against that, the learned counsel for the pre‑emptor argued that if the vendee already owns a house in the village in which he purchase more land for building a house, he is not entitled to the benefit of this exemption even if the house already owned by him is less than one kanal in area. It is not necessary that the house which he already owned must have an area of one kanal or more. It is enough to deprive him of this concession if he has a house only. According to his reading, the words "measuring more than one kanal" towards the end of clause (c) qualify "the vacant site," only and not "the house" as well. According to that contention, the sale is not exempt from pre emption, because the vendee owns a house in the village even though its area is three marlas and sarsai.

10. That reading of clause (c) of section 5 of the Pre‑emption Act does not appear to be correct. The words "more than one kanal" qualify both "the house" and "the vacant site," as the words "more than two kanals" qualify the words "agricultural land and village immovable property (i.e., a house)" occurring in the beginn ing of the clause. The plan appears to be that a person who owns no house at all and intends to build one should have the liberty of building a house on an area of two kanals. Similarly a person who owns a house or a vacant site but its area is less than one A kanal, should also have the concession of building another house on an area of two kanals, if the area of his previous house is less than one kanal. A house standing on an area of less than one kanal is perhaps not considered fit for human habitation, and the owner of such a house has been encouraged to build another house on an area of two kanals. The Legislature therefore gives to the owner of a house of less than one kanal in area permission to purchase without fear of pre‑emption, another house on an area of two kanals.

11. On this reading of clause (c) of section 5 of the Pre emption Act, the sale is exempt from pre‑emption. The revision application of Mst. Shahzadgai is dismissed with costs.

K.B.A. Petition dismissed

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