MAZHAR ALAM KHAN MIANKHEL, J.-The petitioner being plaintiff of a suit for preemption instant revision petition has questioned the concurrent findings of the two courts below wht.-f.By his suit was dismissed by Civil Judge-II/Illaqa Qazi, Malakand at Butkhela vide his judgment and decree dated 30-9:2010 and his appeal against the same also met the same fate when learned District Judge/Zilla Qazi, Malakand at Butkhela dismissed his appeal vide judgment and decree dated 16- 3-2011.
2. The brief but the material facts of the case are that a sale transaction regarding the suit house along with open plot copy of 'which is Exh.D.W.1/1, was preempted by the petitioner and the defendapt/respondent denied the claim of petitioner by raising many factual and legal objections and one of the legal objection was that the suit property being used for religious purposes is exempt from exercising right of pre-emption under section 23 of the N.-W.F.P. Pre-emption Act, 1987. After recording of evidence the suit of the petitioner was dismissed by the trial Court vide its judgment and decree dated 30-3-2010 but on appeal the case was sent back vide judgment and decree dated 15-7-2010 to the trial court by setting aside the judgment and decree of dismissal of suit. After remand the learned trial court once again dismissed the suit by declaring the suit property to be exempt from exercise of right of pre-emption and in appeal the dismissal of suit was upheld by the appellate co rt vide impugned judgments and decrees. Hence the present petition.
3. The learned counsel for the petitioner at the very outset submitted that his right of preemption and performance of his `talbs' under section 13 of the Act, ibid, have been proved and established but he was only non-suited under section 23 of N.-W.F.P. Pre-emption Act; by submitting that it was a simple sale of a house along with an open plot and nothing of the sort was there which could have reflected that it was a 'Wag' property or a property used for charitable, religious or public purposes. So the findings arrived at by the two courts below are against the law and liable to be set aside.
As against that the learned counsel for vendee/defendant/ respondent submitted that it has been established on the record and even admitted by the witnesses of petitioner too that this property is being used for religious purposes as a `Dar-ul-Uloom' is being run in the suit premises, which entails exemption from exercise of right of pre-emption under the law and the two courts below thus have rightly dismissed the suit of petitioner.
4. The learned counsel for the petitioner was heard and record of the case was perused.
5. Perusal of the record would reveal that the only question requiring consideration is whether the property in dispute was a declared 'Waqf' property, or was used for charitable, religious or public purposes. Its so, how and by whom it was declared so. Section 23 of the N.-W.F.P. Pre-emption Act in this regard is very much clear so before the merits of the case are being discussed, it seems appropriate to reproduce the section 23 of the N.-W.F.P. Pre-emption Act, 1987 which reads as under:-- "23. No right of pre-emption in respect of certain properties.---(1) No right of pre-emption shall exist in respect of sale or purchase of---
(a) A was property or a property used for charitable, religious or public purpose; or
(b) A property by the Federal or a Provincial government or a local authority.
(2) A property acquired by the Federal or a Provincial Government or a local authority in pursuance of any law shall not be pre-emptible.
6. A look at the above quoted provision of law would reveal that a 'Waqf' property or a property used for charitable, religious or public purposes would be exempted from exercise of right of preemption. The intention of the legislature is very much clear that the sale of a property A which is already in use as such would be exempt from exercise of right of pre-emption but a simple sale of a property which later on is being used for religious purposes etc. Would have no such protection as provided in the above quoted provision of law.
7. The perusal of the very sale-deed establish the fact- that a house along with an open plot was sold for a certain price and there was nothing of the sort that this property was a 'Waqf' property or used as charitable, religious or public purposes. No doubt that after the sale a religious school has been functioning in the suit property so mere running of a religious school in a property would not ipso facto make it a `Waif' property unless declared so. Similarly, there is nothing on the record that when and by whom this property was declared as such. So in this view of the matter this court without any hesitation in mind, hold that the property in question cannot claim the protection given in section 23 of the N.-W.F.P. Pre-emption Act, 1987. The findings of the two courts below thus have been based on misappreciation of law on the subject which are not liable to be maintained.
Hence, by allowing this revision petition, the findings of the two courts below are hereby set aside and pre-emption suit of the petitioner is hereby decreed subject to payment of sale consideration of Rs.10,80,000 as was determined by the trial Court while rendering its findings on issued No.7. The petitioner is hereby directed to deposit the remaining 2/3 of the decretal amount within 30-days i.e. Before 21-3-2012, otherwise his suit for pre-emption shall stand dismissed. Parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.