' MALIK HAMID SAEED, J.--- The matter agitated in this writ petition relates to the exercise of the right of pre-emption by the petitioner against the respondents Nos.3 and 4, who have only leasehold rights in the property situated in the Cantonment area of Peshawar.
2. The petitioner Mst. Shaukat Ara, having contiguous property in the shape of 'Balakhana Jaat' with the property of Maqsood Ahmad, respondent No,4, consisting of shops and 'Balakhana', brought a preemption suit in the Court of learned Civil Judge, Peshawar when she came to know that Maqsood Ahmad has sold the property in question to Haji Khitab Gul, respondent No,3.
3. The respondents contested the suit and also raised a preliminary objection with regard to the maintainability of the suit as the petitioner and respondent both were having no full proprietary rights over the same and in occupation of the same as lessees, the transaction in question was stated to be not liable to pre-emption.
4. The learned Civil Judge held that the right was permanent and transferable, therefore, the suit was maintainable and accordingly issues were framed in the case. The respondent feeling aggrieved went in Revision before the Additional District Judge, Peshawar, who vide her impugned order dated 27-9-1993 accepted the revision petition and the pre-emption suit of the petitioner stood dismissed. The reasons advanced in the impugned judgment/order are:-
(a) That Muhammadan Law recognizes pre-emption only with respect to full proprietary rights and it does not recognize preemption with respect to leasehold rights.
(b) That under section 2(d) of the N.-W.F.P. Pre-emption Act, the word "sale" means permanent transfer of the ownership of immovable property in exchange for a valuable consideration and as complete ownership cannot be transferred to the transferee in respect of the property which is situated within the limit of Cantonment Board and the ownership cannot be permanently transferred to a person, it may be for specific period, therefore, this transaction cannot come within the ambit of the definition of sale as defined in section 2(d) of the Act.
(c) That an admission deed has been executed by Khitab Gul in favour of Cantonment Board wherein it is mentioned that he admits the Government Proprietary Title in the land and that he would occupy the same as a licensee; and
(d) That D.F. Mullah in his book, 'Principle of Muhammadan Law' has held that, "there must also be full ownership in the land preempted and, therefore, the right of pre-emption does not arise on the sale of leasehold interest in the land."
5. The learned counsel for the parties during the course of arguments vehemently argued their view points particularly in the light of Islamic Law of Pre-emption and various authorities on the subject.
6. Before discussing the point in controversy, we deem it proper to describe the nature of immovable property in the Cantonment Area. The lands situated in the Cantonment Area are Government property and its ownership solely vests in the Government. However, it is leased out to private persons for a fixed period against the receipt of reasonable rents. The Military Estate Office or for that matter the Cantonment Board are agents of the Government for the purpose of management of the said property. The land is ordinarily disposed of by lease for a minimum period of thirty years in the first instance renewable at the option of the lessee at equal intervals up to a maximum period of ninety yeaRs, Briefly stated, in what way and what manner, the lands in the Cantonment Area are disposed of in favour of private persons, the proprietary rights over the said land remains with the Government. The transfer of properties from one party to another in Bazar areas are also permitted but subject to the limitation that the transfer shall not be presumed to be the transfer of full ownership thereof, hence an acknowledgment to the above condition is obtained in writing from the transferee before the requisite sanction is accorded.
7. The pre-emption law presently in vogue in this Province is called the N.-W.F.P. Pre-emption Act, 1987 and the purpose behind its promulgation was to bring the pre-emption laws in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah. Under section 2(d) of the Act, "sale" means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of immovable property by way of Hiba-Bil-Iwaz or Hiba-Bi-Shart-Al-Iwaz. The Muhammadan Law as described in Ballie's Digest also makes it incumbent that:- "There must be Milk or ownership of the Shufee, or pre-emptor, at the time of the purchase, in the mansion on account of which the claims the right of pre-emption."
' In various cases of the nature in which the persons having no full proprietay rights in an immovable property were declared as not entitled to the exercise of the right of pre-emption in respect of sale/purchase of 'joti', Mokurari' and 'lease' kinds of land. ' not allowed the pre-emptor to exercise the right of pre-emption with regard to 'Mukarari' land and held the suit as not maintainable with the following verdict:-- "The Milkiat or ownership of the property being sine qua non for the exercise of the right of pre- emption, it is obvious that defendants Nos.2 and 3 holding only the Mokurari interest could not pre- empt if the plaintiffs had sold their property."
' The Full Bench of the Bombay High Court in a case reported as AIR 1941 Born. 262, also seized of a matter which pertained to leasehold interest of a party in a pre-emption case and decided the same in the following words:-- ' The third point taken, which seems to me to be fatal to the respondent, is that this custom of pre- emption only exists as between free-holders, that is to say, the neighbouring land in respect of which the custom is claimed must be freehold, and the land sought to be pre-empted must also be freehold. Now, in this case the learned Extra Assistant Judge held that the defendants' interest was a leasehold interest up to 31st July, 1950. That is clearly wrong. When one looks at the Sanads, under which the defendants hold, they are in the form given in Sched. 'H' to the Bombay Land Revenue Code with certain modifications, and I think the result of the Sanads is to show that the defendants are given a permanent right of occupancy, but subject to the right of Government at any time on a year's notice to resume possession of the property on payment of certain compensation, which varies according to whether the resumption takes place before or after 31st July, 1950. The right of Government to resume possession at any time on a year's notice is plainly inconsistent with the view that the land is owned by the defendants as freehold. There is no evidence, nor is there any allegation, as to what the plaintiff's title is, but it is common knowledge that within the District of Bhadra all properties are held on the same footing as the property of the defendants. I think we must assume that the title of the plaintiff is of that nature, but, at any rate, the plaintiff has failed to establish that she is the full owner of the property. The question then arises, whether this right of pre-emption exists as between parties who have got something less than the full freehold interest. Mr. Desai admits that there is nothing in the Hedaya which lays it down that the right exists in respect of anything less than the freehold interest, but he says that there is also nothing which restricts the right to free hold interest. Since in ancient times the Mahomedan Law did not recognize leases, although it recognized the hire of land for purposes of user, it is not surprising that the matter is not discussed in the Hedaya. But in Baillie's "Digest of Mahomedan Law", Part 1 (Edn.2), in which the author sets out the conditions on which the right of pre-emption can be exercised ' It was, therefore, concluded that:-- "That is a definite assertion that the pre-emptor, at any rate, must have the full ownership, and in 5 Pat. LJ 740 which has been followed recently in Patna in 16 Pat. 519, the learned Judges held, relying on that must have the full ownership, that so also must there be full ownership in the land pre- empted, because otherwise there would be no reciprocity, and reciprocity is essential for the existence of this right of pre-emption. Those cases also follow 25 WR 43, in which it was held that the right of pre-emption did not arise on the sale of leasehold interest in land. I see no reason for differing from those authorities."
' The nature of the property in the Cantonment Area is also such that it can be resumed by the Government on the expiry of the lease period, or D even prior to the expiry of the lease period if any default is committed by the licensee.
' Similarly, in AIR 1955 Allahabad 698, the following decision was made in a pre-emption case with regard to sale of lessee's rights:- "The law of pre-emption is to be strictly enforced and is not to be extended beyond what is laid down in the Muhammadan Law or in the precedent law interpreting the Muhammadan Law It is true that the right becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land The correct legal position seems, to be that the law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's unfettered right of sale and compels him to sell the property to his co-sharer or neighbour as the case may be. The person who is a co-sharer in the land or owns lands in the vicinity consequently gets an advantage or benefit corresponding to the burden with which the owner of the property is saddled, even through it does not amount to an actual interest in the property sold.
' The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself.... In our opinion the law of preemption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser."
' The leasehold interest was again declared' not subject to pre-emption by the Supreme Court of India in the case reported as AIR 1968, SC 450. The relevant citation is reproduced hereunder:-- "This immediately raises the question as to what is the extent of Mahomedan Law in the matter of pre-emption. The contention on behalf of the appellant is that Mohammadan Law recognizes pre- emption only with respect to full proprietary rights and that it does not recognize pre-emption with respect to leasehold rights. We are of opinion that this contention is well founded. In Principles of Mahomedan Law by D.F. Mulla (15th Edition), the extent of pre-emption in Mahomedan Law is that stated at p.207: `There must be also full ownership in the land pre-empted, and therefore the right of pre-emption does not arise on the sale of a leasehold interest in land'.
' This statement of law is supported by a number of decisions to which reference may now be made......... If
8. In Pakistan, the judgment on the point as to whether person, who are not having full proprietary rights in lands, would be entitled to the exercise of the right of pre-emption or not, came from Dacca High Court in the case of Sycd Saeed-ud-Din v. Haji Yunas Mia PLD 1960 Dacca 416 wherein it was held that 'Joti' right under the Bengal Tenancy Act was a permanent, heritable and transferable right making the holder of such a right in every sense an owner subject only to the payment of the fixed rent to the landlord and the holder of such 'Joti' right has, therefore, also the right to pre-empt the transfer of an adjoining 'Jote' particularly, since the principle of reciprocity is not thereby violated. The august Supreme Court of Pakistan in the case of Sikandar v. Sultan Muhammad PLD 1974 SC 11 however, did not agree with the aforesaid findings of Dacca High Court, while hearing an appeal from the judgment of the former High Court of West Pakistan Peshawar Bench, Peshawar, hence it was held with special reference to the Muhammadan law on the subject, that where pre-emption is claimed the pre-emptor must have the Milkiyat or ownership in the property on account of which he claims the right of pre-emption. The Honourable Judges of the august Supreme Court while discussing the judgment of the Dacca High Court in the judgment observed as under:- "The Dacca High Court took the view that this condition was confined to the case of pre-emption of a mansion but a Full Bench of the Bombay High Court in the case of Dhashratlal Chhaganlal v. Bai Dhendubai did not think that there was any such justification to confine it only to house property, because, otherwise there would be no reciprocity which is essential for the exercise of the right of pre-emption. We are inclined to agree with the Bombay view which was in fact applied by the Dacca High Court in the case before it by holding that the holder of a Jote right, under the Bengal Tenancy Act, was, as observed by the Privy Council in Katayain Debi v. Uday Kumar Das, virtually 'the proprietor of the surface of the land subject only to the payment of the stipulated rent and the lessor and the succeeding landlords have no interest in the land except in so far they form a security for payment of rent'.
' We are, therefore, of the opinion that the High Court rightly held that the appellant did not possess a sufficiently superior right of pre-emption on this ground to claim the right of preemption of the adjoining property."
9. The Karachi High Court, however, made a departure from this view taken by the august Supreme Court of Pakistan on the ground that the exact nature of the rights held by the parties in their respective properties was not defined. Hence it was held that pre-emption right can be exercised in respect of leasehold rights which are of permanent character, heritable and transferable. The learned counsel for the petitioner vehemently relied upon the aforesaid judgment of the Karachi High Court reported in PLD 1990 Kar. 387 but in our humble view, we find no difficulty in the judgment of the august Supreme Court of Pakistan of such a nature, as the point discussed in the judgment of the august Supreme Court of Pakistan is with regard to the exercise of the right of pre- emption by those persons, who are not full owners of the contiguous house and with special reference to Muhammadan Law, as the august Supreme Court of Pakistan has held that the title deed pertaining to the property of the pre-emptor clearly describe the right conveyed as "Haquq- e-Bashindagane Dawami", which was certainly not a full proprietary interest and, therefore, the appellant did not possess a sufficiently superior right of pre-emption on this ground to claim the right of pre-emption of the adjoining property. Secondly, the Karachi High Court at the same time has held that the right of pre-emption cannot be enforced in case of commercial properties because the question of disagreeable neighbour in such case does not arise. In this case too the shops and Balakhana has,been made the subject of pre-emption and on this analogy too, the petitioner is estopped to bring a pre-emption suit against the respondents.
10. The learned counsel for the petitioner also vehemently relied upon the judgment of the Honourable Federal Shariat Court reported in PLD 1991 Federal Shariat Court 80, wherein the exclusion of the property situated in an urban area or within Cantonment limits as declared by any law relating to Local Bodies or Cantonments, as the case may be, for the time being in force, was declared repugnant to the Injunctions of Islam.
11. The facts as could be gathered from the aforesaid judgment are that by filing, some petitions, the various sections of the Punjab Preemption Act, 1991 were challenged being not in conformity with the Injunctions of Islam. Section 2(a) of the Punjab Pre-emption Act, 1991 was also one of those challenged sections, as it was providing the exclusion of the immovable property situated in an urban area or within the Cantonment limits from pre-emption. The august Federal Shariat Court found the provision of section 2(a) of the Punjab Pre-emption Act, 1991 to the extent of exclusion of property situated in an urban area or within the Cantonment limits as declared by any law relating to Local Bodies or Cantonments, as the case may be, for the time being in force, as repugnant to the Injunctions of Islam. The authority ibid is distinguishable in facts and circumstances of the present case, as neither any such provision in the N.-W.F.P. Pre-emption Act, 1987 exists nor the question before the Honourable Federal Shariat Court was with regard to the availability of the right of pre-emption to the lessees. In our humble view, the Islamic provision relating to the law of pre- emption was having no such restriction, hence the definition offered to the word "immovable property" in the said section of the Punjab Pre-emption Act was found as an indirect attempt on part of the Government to exempt immovable property situated in those areas from the application and enforcement of the Islamic Law of Pre-emption and thus declared the same repugnant to the Injunctions of Islam.
12. From the above decisions, in, which the law of pre-emption has been discussed in the context of the Injunctions of Islam for the exercise of the right of pre-emption, it is well-settled that leasehold right in a land would not give freehold right to a person to exercise his right of pre-emption under the Muhammad an Law unless Milkiest or ownership is shown with regard to the said property. The property in dispute is admittedly the ownership of the Government and has been only leased out to the respondent for a fixed period on payment of annual rent, hence the essential ingredients as required under the Muhammad an Law for the exercise of the right of pre-emption is missing in this case and no suit could be brought by the petitioner against the respondents in this regard.
13. For the aforesaid reasons, we see no illegality to have been committed by the learned Additional District Judge, Peshawar while accepting the revision petition of the respondents and dismissing the Suit of the petitioner being not maintainable. The impugned judgment of the learned Additional District Judge, Peshawar is, therefore, upheld and the writ petition in hand is hereby dismissed. The parties are, however, left to bear their own costs.