JUDGMENTMUHAMMAD BASHIR KHAN JEHANGIRI, J-By mutation No.273 attested on 19.2.1978, Ghulam Muhammad, vendor-defendant No.2, sold 10 kanals and 10 marlas of land fully described in the title of the plaint and situated in village Aara, Tehsil and District, D.LKhan, for a sum of rs. 10,500/- in favour of Azizullah Khan, defendant-vendee No.1. Before the institution of the present suit, mutation No.343 was entered and attested on 8.1.1979 at the instance of Azizullah Khan, defendant-vendee, agreeing to the transfer of 10 kanals of land to Ghulam Muhammad, defendant No.2, in exchange of land measuring 10 kanals belonging to the latter. Mutation No.344 in favour of defendant No.1 was entered with regard to the land which he got from Ghulam Muhammad in exchange for the suit land. Ghulam Sarvar pre-empted the sale and brought a suit on 14.2.1979 in the Court of Civil Judge, D.I.Khan.
2. The defendants contested the suit. They denied the right of preemption of the plaintiff-pre- emptor and apart from taking some other objections, which are not material at this Stage, they alleged that they had validly exchanged 10 Kanals of the suit land inter se. Nine issues, including the- issue of relief, were framed in the case, out of which issues No.1,7 and 8, being the only material issues, are reproduced below: - 1/. Whether the plaintiff has got a cause of action?
7/. Whether the plaintiff has got superior right of pre-emption?
8/. Whether the plaintiff is entitled to the decree prayed for?
The learned trial Judge seems to have held the exchange transaction to be valid and only decreed 10 marlas of the suit land dismissing the suit for the remaining area of 10 Kanals in dispute.
3. The plaintiff-pre-emptor, feeling aggrieved, filed an appeal against the judgment and decree of the learned trial Judge. Malik Muhammad Jehangir Khan, the learned Addition District Judge, by his order dated 31.5.1988, reversed the finding of the learned trial Judge on the above issues and decreed the plaintiffs suit in its entirety on payment of Rs.10,500/, leaving the parties to bear their own costs. Aggrieved of the aforesaid decision of the learned Appellate Court, the defendants have filed this petition in revision.
4. The entire controversy in this petition in revision centers round the proposition as to whether the exchange by the vendee of the land in dispute with the vendor adversely affects the pre-emptor's superior right of pre-emption or not.
5. Mr.Muhammad Iqbal Khan Kundi, the learned counsel a, uring on behalf of the defendants- petitioners, contended that under section 17 of the N.W.F.P. Pre-emption Act, 1950 (since repealed), (hereinafter called as the Act), no suit for pre-emption lies where the purchaser, prior to the institution of such suit, transfers the land to a person having the right of pre-emption equal or superior to that of the plaintiff and that, therefore, the finding of the learned trial Judge on plaintiffs right to pre-empt had adquate support of law.
6. Sardar Allah Nawaz Khan Sadozai, the learned counsel for the pre- emptor-defendant, contended that the finding of the learned trial Court on the validity of the exchange transaction was erroneous, because the alleged transfer could only be taken to mean a sale and not an exchange. The learned counsel for the respondent, in support of this proposition, placed implicit reliance on: (1) Gul Muhammad V.Dilawar Khan (P.L.D 1955 Peshawar 76) and (2) Balakamoon Khan V. Gul Rehman Shah fP.L.D. 1987 Peshawar 21). In the first case of Gul Muhammad Khan cited at the bar, the word "transfer" occurring in section 17 of the Act for interpretation for the first time after the enactment of the Act by a Division Bench of the earstwhile Court of Judicial Commissioner, N.W.F.P.
Late Muhammad Shafi J, while delivering the judgment for the Division Bench concluded that if section 17 of the Act ibid is read with its head-note, then it becomes quite clear that the intention of the Legislature was that the only transfer, which would non-suit the plaintiff would be the sale and not any other form of the transfer.In the second precedent of Balakamoon Khan, Fazal Ilahi Khan, J.
Held that under the law, re-sale of the land to original vendor cannot be set up as a plea, for defeating the plaintiffs suit for possession by pre-emption under section 17 of the Act, inasmuch as the transfer made in his favour can neither be termed to have been made in recognition of a superior right of preemption, nor the sale made by such transferee in favour of the subsequent vandee, would be deemed to be the transfer by the first vandee in fafvour of a person having equal or superior right to that of the plaintiff-pre-emptor.
7. The ratio of these two authorities clearly is that the word "transfer" occurring in section 17 of the Act would cover only the sale and not any other form of transfer; that, in any case, even if the disputed property is sold to the vendor, it cannot be held to be a sale in recognition of his superior right of preemption. I must, therefore, hold that the exchange of land under pre-emption by the vendee with the vendor at any stage i.e. Either before the institution of the suit or pending decision of the suit does not fall within the contemplation of the word "transfer" occurring in section 17 ibid and would not be sufficient to non-suit the pre-emptor.
8. The result of the above discussion is that the vendee by exchange of the property under pre- emption in favour of the vendor could not defeat the preemptive rights of the plaintiff-respondent.
This revision petition has, therefore, no force which is dismissed with costs.