Sehraj Umar plaintiff-respondent instituted a suit for possession through pre-emption of land situate in village Bhogarmang, Tehsil and District Mansehra for a sum of Rs.1,000 only. Nazir Muhammad Khan the petitioner-defendant resisted the suit. Finding the parties at variance on number of issues, the learned Civil Judge, Mansehra recorded such evidence as was produced by the parties in support of their pleadings and, as per his judgment dated 8-9-1983, decreed the suit.
In appeal, the defendant-petitioner met the same fate when the learned Additional District Judge, Mansehra, vide his judgment and decree dated 22-2--1984 dismissed his appeal and maintained the judgment and decree of the trial Court. Hence this revision petition.
2. I have heard Mr. Muhammad Younas Tanoli, Advocate, learned counsel for the petitioner- defendant and Mr. Muhammad Sarfraz Khan, Advocate for the respondent at length and also perused the record of the case with considerable degree of care.
3. It is contended on behalf of the defendant-petitioner that the finding of the learned trial Court on all the issues in general and issue No.5 in particular is against the facts on the record and the law relevant thereto inasmuch as admittedly the defendant-petitioner is the resident of the same village Bhogarmang and he has no house there and as such keeping in view the requirement of section 5(c) of the N.-W.F.P. Pre-emption Act, the case fell within the purview thereof. But, the learned counsel for the defendant-petitioner contended, the trial Court as well as the Appellate Court proceeded on wrong premises in law when they denied this right to the defendant-petitioner basing their finding on the case of Habibur Rehman and others v. Faqir Muhammad reported in PLD 1983 Pesh. 197 though the principle laid down therein was no more a good law. Reliance is placed on 1987 M LD 2413; 1985 CLC 666 and 1986 SCM R 1591.
4. On the other hand, the learned counsel for the plaintiff-respondent maintained that the exception as contained in section 5(c) in the present situation cannot be pressed into service on behalf of the defendant-petitioner inasmuch as in the light of the judgment of Supreme Court Shariat Appellate Bench dated 26--2-1986 reported as Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 which was to take effect on 31-7-1986, the N.-W.F.P. Pre-emption Act, 1950 (hereinafter to be referred as the Act 1950) is no more in the field; that such being the case, as held in the later Supreme Court judgment in the case of Sardar Ali and others v. Muhammad Ali and others PLD 1938 SC 287 a decree passed in favour of the pre-emptor, under the Act of 1950, earlier than 31-7-1986 can be defended but not the exception under the Act of 1950.
5. I have given my serious consideration to the respective contentions of both the learned counsel and have also perused the record of the case with considerable degree of care.
6. Taking first the point raised on behalf of the defendant-petitioner, a reference to the judgment of both the learned Courts reveals that m their view the exception contemplated by section 5(c) was not legally made available to the vendee as he has purchased a share out of the joint property and the suit land unless partitioned, was not exclusively owned and possessed by the vendor. It relied upon the decision in Habibur Rehman's case wherein, although it was admitted that there was no direct authority on the matter of this nature but relying do certain cases of Indian jurisdiction, not precisely in the context of the Pre-emption case or for that matter in the perspective of doctrine of exception as embodied in the Act of 1950, it was opined on a general principle of law that without the consent of all the co-sharers, no co-sharer can make a change in permanent nature or part of joint holding and it was held that in that context of the matter though the vendee has become a co-sharer in the joint property, since by constructing a house, the vendee would alter the nature and character of joint property, the provisions of section 5(c) of Act, 1950 cannot come to his rescue unless he ensures that there will be no legal restraint on his act and consent of other co-sharers in this behalf is obtained.
7. In fact a situation of this nature had already come before the Supreme Court and was examined in the case of Qasim Jan v. Nawaz Khan 1985 SCM R 926 where ratio decidendi was that once it is established that the vendee purchased an area of land not more than the one allowed in the respective exception, and is purchased for the construction of the house, the sale was exempt from pre-emption.
8.It appears that the law laid down in the Supreme Court case was not brought to the notice of the learned Single Judge of this Court while deciding' Habibur Rehman's case. Later the same point came before this Court as also the Supreme Court and consistent view has been that a vendee, who has purchased a portion of land for the construction of house out of a joint holding of land, if otherwise conforms to the requirement of exemption as provided in the Act of 1950, shall be entitled to the statutory protection afforded to him and it is not essentially a condition precedent for the vendee to get his share separated by means of partition proceedings. While I respectfully follow the rule laid down by the Supreme Court in Qasim Khan's case, I have no hesitation in holding that. Both the learned lower Courts have misconceived the legal position and the 1 decree, passed by them cannot be sustained on this score.
9. Adverting, however, to the point raised by the learned counsel for the plaintiff-respondent, it is presently a settled position of law that a plaintiff, having obtained a decree for pre-emption in the trial forum before 31-7-1986, can defend 1 the decree granted in his favour in higher forums, thereafter on the basis of the Act of 1950. The question that falls for consideration is as to whether the decree granted in favour of pre-emptor can nevertheless be assailed and the pre-emptor non-suited, at appellate or revisional stage, on successfully pressing into service the exceptions available to the vendee under section 5(c) or 5(d) of the Act of 1950 which has been denied to him by the trial or, appellate Court.
10. To resolve the controversy, however, a reference to sections 4 and 5 of the Act of 1950, be made with advantage which runs thus:- "Section 4. Right of Pre-emption.--The right of pre-emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only m the case of sales and in respect of such property only in the case of sales or of fore-closure of the right to redeem such property".
Section-5 No rig-ht of pre-emption shall exist in respect of the sale of, or the foreclosure of, a right to redeem:-
(a) --------------------.------
(b) ------------------------- (c)agricultural land or village immovable property consisting 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.
(d)agricultural land or urban immovable property, consisting of an area measuring not more than ten Marlas purchased by a resident of the town in which such land or property is situated, where he neither owns a house nor a vacant site measuring more than five Marlas, for constructing a house for his own occupation.
11. A bare reading of the above-quoted provisions shows that in granting the right of pre-emption under section 4, the preference to other persons to acquire immovable property is the essence of the right of pre-emption. Once this preference, on the factual premises or by operation of law fades or is eclipsed, the right of pre-emption granted under section 4 cannot be exercised.
12. It shall thus be pertinent to note that section 5 of the Act of 1950, somewhat more forcefully envisages that the right of pre-emption, in relation to certain kinds of properties or pertaining to acquisition of immovable property under certain conditions, ceases to exist as is evident from the very opening expression of section 5 (ibid).
13. Thus from the facts, if it is established that the vendee fulfilled the requirements of clause (c) or clause (d) of section 5 of the Act of 1950, the consequences flowing there from will be non- existence of the preferential right of acquiring property under section 4 (ibid), inasmuch as the pre-emptor would be I found bereft of this right, his superior qualifications, if any, at the date and time C of the sale, notwithstanding.
14. Again when a suit of pre-emption is resisted on the ground of exemption under section 5(c) or, as the case may be, under section 5(d) of the Act of 1950, in essence, it tantamounts to questioning the very right of pre-emption being not available to the pre-emptor and in case a decree is granted, an appeal or revision shall not only be maintainable but the plaintiff can also be non- suited if the defendant vendee is found to have successfully established that the relevant exception was available to him under section 5 of the Act of 1950.
15. A reference to the judgment of the Supreme Court in Sardar Ali's case PLD 1988 SC 287, shows that such a situation seemingly has not arisen and as such neither could be examined nor could be decided but the principle laid down therein is more than clear in that where decree in a pre- emption case has been passed in favour of the plaintiff on the basis of the old law before 31-7- 1986, the' same law would continue to govern the case upto the Supreme Court and the plaintiff would be entitled accordingly to defend the decree.
16. In this context of the matter, it can be stressed with an amount of certainty that in such a situation, if the old law is to govern the case of the plaintiff even after 31-7-1986 without meeting the requirements of `Talab-e-Mawasibat' and `Talab-e-Ashhad', then on the parity of reasoning, the right of exemption from the pre-emption, vested in a vendee shall also be available to him.
17. In view of the above, I have no hesitation in holding that under the present state of law while the plaintiffs can defend his decree under a Statute which already stood struck off, the defendant vendee, can with equal force, assail a decree granted in favour of the pre-emptor on the simple ground that even if the pre-emptor was entitled to a decree of pre-emption on the ground as contained in section 4 of the Act of 1950, the same could be negated on D successfully pressing into service the exception to the rule of pre-emption as enshrined in section 5(c) or as the case may be under section 5(d) of the N.--W.F.P. Pre-emption Act, 1950.
18. Resultantly, I hold that the defendant-petitioner has been wrongly denied the right accrued to him under section 5(c) of the Act of 1950 and while allowing this petition, I set aside the judgments and decrees of both the lower Courts. The suit of the respondent stands dismissed.
No order as to costs.