P L D 1987 Supreme Court 32 (PLP)

NASIM HASAN SHAH, J.‑This appeal, by leave of this Court, is directed against the judgment dated 27‑4‑1983 passed by the Peshawar High Court, Circuit Bench, Abbottabad in Civil Revision No. 107 of 1982. The relevant facts are that the land comprised in Khata No. 35/52, Khasra No. 182 to the extent of 2 Kanals 2 Marlas out of 13 Kanals 13 Marlas situated in the area of Banda Phagwarian, Tebsil Abbottabad was conveyed by sale in favour of petitioner No. 1 (vendee) through Mutation No. 1730 dated 20‑2‑1974. This sale was sought to be pre empted by Fazalur Rehman, predecessor‑in‑interest of the respondents by means of a suit basing his preferential right on co‑sharership, contiguity, participation in amenities and appendages etc. Muhammad Akram contested the suit on the main plea of exemption under section 5(c) of the N.‑W. F. P. Pre‑emption Act, 1950 which reads as under "

5. Property exempted from pre‑emption.‑No right 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." The learned Civil Judge, Abbottabad, found Fazalur Rahman to be entitled to a preferential right of pre‑emption but dismissed his suit by extending the benefit of section 5(c) to the appellant‑vendee on the follow ing reasoning :‑. "The words in section 5(c) of the N.‑W. F. P. Pre‑emption Act are clear that the area purchased is not to be more than 2 Kanals i. e. 7 Kanals.2 Marlas. The excess area allowed to be for path is no excuse. The relevant section 5(c) does not apply on 2 Kanals 2 Marlas. Here if the file is perused thoroughly it would become clear that though the land purchased is 2 Kanals 2 Marlas on 20‑2‑1974 through Mutation No. 730 but on 20‑1‑1975 through a registered deed Exh. D. W. 2/1, 10 Marlas out of 2 Kanals 2 Marlas has been transferred to his sons for construction. This means that on 20‑1‑1975 the defendant in his possession was having less than 2 Kanals of property for construction and if seen from the file the present suit was instituted on 12‑2‑1975 which would mean that on the date of the institution of the suit the defendant was having the property not more than 2 Kanals rather less than 2 Kanals and which clearly is exempted from pre‑emption alongwith other two ingredients." Accordingly, by his judgment dated 14‑5‑1981 the learned Civil Judge dismissed the suit of Fazalur Rehman. This judgment was upheld by the learned District Judge, Abbottabad on 9‑2‑1982 in appeal filed by the respondents. The respondents then preferred a revision application before the High Court of Peshawar Circuit Bench, Abbottabad, which was accepted and the suit was decreed against the appellants vide judgment dated 27‑4‑1983. The High Court took the view that section 5 of the N.‑W. F. P. Pre‑emption Act being in the nature of exception to the right of pre‑emption created by sections 4 and 12 of the same Act is to be strictly construed. In this context, the High Court further referred to section 17(1) of the said Act and held that the transfer of 10 Marlas of land out of the total area measuring 2 Kanals 2 Marlas purchased by the first vendee did not cure the defect in the original sale so as to entitle the vendee to the benefit of the exemption contained in section 5(c). Secondly, it was held that the transfer by the vendee which had the effect of defeating the right of pre‑emption of the respondents could only be to a person having an equal or superior right to that of the plaintiff as provided by section 17(1) but the sale in this case was to the sons of the vendee who had no such right. The vendee thereupon moved a petition for leave to appeal in this Court submitting that it was proved on the record that out of the 2 Kanals 2 Marlas area the appellant had sold by registered deed an area of 10 Marlas much prior to the institution of the suit. He was, therefore. left with an area less than 2 Kanals on the date of the suit. Consequently. the appellant had improved his status prior to the institution of the suitf to be able to claim the benefit of section 5(c) of the N.‑W. F. P. Pre emption Act, 1950 and correspondingly the respondent had no right to pre‑empt the sale in his favour on the date of the suit. Leave was granted to examine the above contention. We have heard Moulvi Sirajul Haq, learned counsel for the appellants and Mr. Bashir Ahmad Ansari, counsel for the respondents. Section 4 of the N.‑W. F. P. Pre‑emption Act, 1950 defines the right of pre‑emption as follows :‑ "

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 person, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosure of the right to redeem such property." Thus, the right of pre‑emption is the right of a person to acquire property in preference to another person and it arises only when a sale takes place or the right to redeem mortgaged property is foreclosed. The Act contains provisions both with regard to the identity of persons to whom the right may accrue as also to the sales of the kind of property which may give rise to the right. Section 12 of the Act lays down the order of priority with respect to the persons who are entitled to pre‑empt, and section 6 specifics the property in respect of which the right may bet exercised. As for section 5, this section lists the situations and the kinds of properties which are exempted from pre‑emption. Thus, section 5 is an exception to section 6 as it exempts certain kinds of the properties from the right of pre‑emption in respect of which the right of pre‑emption otherwise exists. Now the question is whether the provisions of section 5 can be deemed to confer a status. The question of status is dealt with in subsection (2) of section 17 of the Act. This reads as follows :‑ "

17. Sale of property to pre‑emptor or acquisition of right by original purchaser prior to suits.‑(1) . (2) Any improvement, otherwise than through inheritance or succession made in the status of a vendee‑defendant after the institution of a suit. for pre‑emption shall not affect the right of the pre‑emptor‑ plaintiff in such suit." In our view the word `status' as occurring in section 17(2) has simply reference to the order of priority which the Act fixes among the persons in, whom the right of pre‑emption inheres under section 12 of the Act. On the, other hand, the word `exemption' as envisaged in sections 5 and 6 merely` signifies that the property to which it relates has been excluded from amongst those properties in respect of which the right of pre‑emption may) normally be exercised. In this particular case the sale made by the appellant in favour of his son was not covered by any exemption, as the area originally purchased by him was in excess of two Kanals. It also did not improve his status as in doing so he did not acquire a position equal to or higher than the respondents, in the order of the priority as laid down by the Act. We are, therefore, of the view that the High Court was right in holding that the exemption was not available to a person who had purchased an] area of more than 2 Kanals at the outset. The result is that this appeal fails and is dismissed hereby but the parties are left to bear their own costs. s Q Appeal dismissed.