' Through a registered sale-deed dated 25-6-1976, lzharuddin, Subhanuddin, Rehmanuddin and Tajuddin, sons of Ashrafuddin, who are petitioners herein, purchased land, measuring 6 Kanals 3 Marias out of eight Khasra numbers mentioned in the heading of the plaint. The sale was pre- empted by Sardar Ahmed and his three brothers, who are respondens herein, on the basis of co- sharership, participation in the immunities and appendages of the suit land and contiguity.
2. The suit was resisted by the defendants on factual and legal grounds; one of which was that since the disputed land had been purchased for the construction of houses, it was exempt from pre-emption under section 5 (c) of the Pre-emption Act.
3. The suit was dismissed by the learned trial Judge, vide his judgment and decree dated 19-10- 1981, but in appeal it was decreed by the learned Additional District Judge, vide his judgment and decree dated 4-12-1983. The vendees have come to this Court in revision against the said order.
4. The impugned order of the learned Additional District Judge would show that the exemption claimed by the vendees under section 5(c) of the Pre-emption Act was not allowed to them on the authority of this Court in Habibur Rehman and another's case PLD 1983 Pesh.
197. Since there was no evidence on the record to show that the vendees had obtained prior permission of other co-sharers for con structing residential houses on the suit land, the learned Additional District Judge, relying on Habibur Rehman and another's case, held that the exemption clause appearing in the statute could be of no benefit to the vendees. The learned appellate Judge, consequently, decreed the pre-emption suit, as hereinbefore said. Mr.Muhammad Latif Khan, Advocate appearing on behalf of the petitioners and Ch.Muhammad Salim, Advocate appearing on behalf of the respondents, therefore, confined their arguments to this point.
4A. The learned counsel for the petitioners contended that the finding of the learned appellate Judge that the vendees could not have the benefit of section 5(c) of the Pre-emption Act was erroneous being the result of misconstruction and misapplication of law. He argued that no doubt this Court has in Habibur Rehman and another's case held that in the circumstances where the vendees while purchasing some share/land from joint Khata do not obtain prior sanction of other co-sharers for the construction of a house on the land purchased by them, they cannot avail of the benefit of section 5(c) of the Pre-emption Act, but in a subsequent decision by this Court in Salim Khan and 5 others' case PLJ 1984 Pesh. 48, following the decision of the Supreme Court in Qasim Khan's case NLR 1980 SCJ 408, it has been held that in such circumstances the statutory protection afforded by section 5(c) shall be available to such vendees. The learned counsel submitted that the order made by the learned appellate Judge, therefore, needs to be Reversed.
The learned counsel for the respondents was quite frank in his submissions that if the law laid down in Habibur Rehman and another's case is followed then this petition merits dismissal but if the law laid down in Salim Khan and 5 others' case is followed then the pre-emptors would be out of Court.
5. The revenue record placed on the file would show that the petitioners are actually residing in the 'Abadi' constructed upon Khasra No.594, which is one of the suit Khasras. It has also come in evidence that the vendees do not own any other house or land in this village, except the suit land.
The intention to purchase the suit land for construction purposes was made clear even in the registered sale-deed through which the suit land was sold in favour of the vendees. It was further explicitly so stated at the trial, The conditions prescribed in section 5(c) of the Pre-emption Act were, therefore, fulfilled by the vendees. Respectfully following the law laid down by the Supreme Court in Qasim Khan's case I hold that the vendees/petitioners were entitled to the benefit of section 5(c) of the Pre-emption Act no matter the land purchased by them formed part of a joint Khata.
6. In the result, while accepting this revision petition I hereby set aside the judgment and decree, dated 4-12-1983 of the learned Additional District Judge. The judgment and decree dated 19-10- 1981 of the learned trial Judge shall stand restored. In the circumstances of the case, I make no order as to costs.