' By this single judgment I propose to dispose of the present Civil Revision (No, 207 of 1988 Arifullah v. Fazle Rahim etc.) as well as Civil Revision No,217 of 1988 (Abdus Sajid v. Fazale Rahim etc.) as both arise out of one and the same judgment/decree of Additional District Judge, Swabi (S. Mussadiq Hussain Gillani) dated 17-1-1988.
2. Stated briefly, the facts of the case are that the suit property, measuring 7 Kanals 12 Marlas, fully detailed in the heading of the plaint, was purchased by the respondents-vendees vide Mutation No,5075 attested on 25-4-1983. Petitioner Arifullah etc. Claiming to have a superior pre-emptive right, preempted the said transaction by filing Civil Suit No,130/1 of 1984 (Arifullah v. Fazale Rahim etc.) on 11-3-1984. Similarly petitioners Abdus Sajid etc. (Civil Revision Petition No,217/88) also pre- empted the transaction in question by filing Civil Suit No,154/1 of 1984, Abdus Sajid etc. v. Fazale Rahim etc. On 28-3-1984. They too claimed that they had superior pre-emptive right.
3. Both the suits were consolidated and the learned Civil Judge, Swabi vide his judgment/decree dated 21-6-1986 decreed both the suits.
4. The respondents-vendees dissatisfied with the judgment/decree of the trial Court, filed two separate appeals in the Court of Additional District Judge, who by his consolidated judgment/decree dated 174-1988 accepted both the appeals and held that the suit transaction was exempt for pre-emption under section 5(c) of the old N.-W.F.P. Pre-emption Act, 1950.
Accordingly he set aside the judgments/decrees passed by the trial Court (in both the cases) and dismissed the suits of the rival pre-emptors. Hence the revision petitions in hand.
5. Mr. Mumtaz Khan, Advocate learned counsel for the petitioners and Mr. Abdus Samad Khan of Bannu, Advocate learned counsel for the respondents heard at length. I have also perused the record of the case with some degree of care.
6. The learned counsel for the petitioners (both the connected revisions) mainly contended that the respondents-vendees were in fact the residents of village Mughal Kot (where their father had some landed property) and that therefore the property purchased by them in another village, Urmal Dheri, could not be held to be exempt from pre-emption. He further stated that in holding so the learned Additional District Judge has not only acted in the exercise of its jurisdiction illegally but has also committed grave/material irregularity. He submitted that in the circumstances the judgment/decree of the learned lower Appellate Court is liable to be set aside.
7. On the other hand, the learned counsel for the respondents-vendees vehemently argued that the suit property, measuring 7 Kanals 12 Marlas, was purchased by four vendees (real brothers inter se) for the construction of their houses and as such the same is exempt from pre-emption under section 5(c) of the old N.-W.F.P. Pre-emption Act, 1950. He further stated that if one person, by one single deed, can purchase two Kanals of land for the construction of a house, which is exempt from pre-emption, then in that case four persons, by one single deed, can surely purchase 8 Kanals of land for the construction of separate houses with the same amenity. In this respect he placed reliance on case Said Alam and another v. Mst. Ghulam Janat and another reported as PLD 1954 Peshawar page 35.
8. He next contended that the suit land (although situated in Urmal Dheri) is situated at a distance of about one mile from Mughal Kot Banda Sadhri and has been purchased for the construction of houses by the respondents/vendees, who are all real brothers. He further stated that it has been clearly established from the evidence produced by the petitioners-plaintiffs that the respondents vendees had already started construction of a house, over the suit land and that the said construction was stopped by them in compliance with the order issued by the trial Court, after the institution of the suits for pre-emption. In this respect he referred to the statement of P.W.1 Patwari Halqa who deposed about this fact. The counsel further stated that the petitioners-plaintiffs have miserably failed to produce any evidence to show that the respondents-vendees were owners in possession of landed property in either of the two villages and therefore the land purchased by them respondents-vendees) was not exempt from pre-emption. According to him it is in the evidence of the parties that the respondents-vendees had no house/landed property of their own and that they were residing as tenants) in the house of one Nawab Sahib situated in village Mughal Kot. He stated that since the respondents-vendees had the intention of settling down in village Urmal Dheri therefore, they had purchased the suit land. According to him there was no bar, under the law, in doing so. He thus contended that in the circumstances the transaction in question was definitely exempt from pre-emption. Elaborating the word "residence" the learned counsel for the respondents-vendees submitted that this term is quite flexible and accordingly a question would arise as to whether the term should receive a larger or a restricted meaning. According to him it is now well settled proposition of law that if a particular word is not defined then in that case it is duty of the Court to find out the intention of the legislature and to frame the particular provision in which the word is used, that if this principle is applied then the word "residence" would not only mean residence for a particular period but would also mean, in the case of a person who has original place of residence, an intention to abandon the original place of his residence and to live at another place, at least for the time being for some times to come.
9. In the case in hand the respondents, four in number, who are real brothers, have purchased 7 Kanals 12 Marlas of land situated at a distance of about one mile from their ancestral village (where their father has only 18 Marlas of landed property) and had immediately after purchasing the land started the construction of the house, thus showing that they had all the intentions of staying there permanently or at least for some time, and that they have abandoned their ancestral village for good. It is true that where a person permanently abandons his ancestral village and settles down in another village he is entitled to exemption under section 5 (c) of the old N.-W.F.P.
Pre-emption Act, 1950, as was held in case reported as PLD 1974 Peshawar page 63 but the onus of proving that he has abandoned his original residence, to claim the benefit of section 5(c) of the Act ibid, rests entirely on the respondents.
10. After having gone through the evidence produced by the respondents in this respect I cannot refrain myself from remarking that there is enough material/evidence on the file to show that the respondents have in fact abandoned their original residence in village "Mughal Kot" and have decided to settle down in village Urmal Dheri, which is situated at a distance of about one mile from their ancestral village. This fact has been fully established on record because it is in the evidence of the parties that the respondents immediately after purchasing the land in question had started the construction of a house to reside therein.
11. The learned lower Appellate Court has properly appreciated the evidence produced by the parties and has rightly come to the conclusion that the transaction in question is exempt from pre- emption. It was for this reason that he dismissed the suits of the rival pre-emptors vides its judgment/decree dated 17-1-1988.
12. The findings of the lower Appellate Court are neither arbitrary nor perverse and as such no reasons exist and none indeed has been made out as to why this Court should, in its revisional jurisdiction, interfere with the findings of the learned lower Appellate Court which has not acted illegally or with material irregularity in the exercise of the jurisdiction vested in it.
13. Both the revision petitions are without any substance and are dismissed with costs.