2012 PLP 1411 (MLD)

QAISER RASHID KHAN, J.

This revision petition is directed against the concurrent findings of the learned two courts below dated 7-7-2011 and 17-2-2012 respectively, whereby on acceptance of application filed by the respondents/defendants Haji Khan etc.; the pre-emption suit of Muhammad Ismail, petitioner/plaintiff, was rejected under Order VII, Rule 11, C.P.C.

2. Brief and essential facts of the case are that Muhammad Ismail, plaintiff/petitioner, filed a suit for pre-emption against Haji Khan and Muhammad Ramzan, respondents/defendants, in respect of the land fully described in the plaint, claiming superior right of pre-emption on the basis of contiguity, immunities and appendages. It was averred in the plaint that the actual price of the suit land was Rs.65,500 but the defendants in order to defeat his pre-emptive rights had wrongly mentioned an inflated and exaggerated amount of Rs.1,56,000 in the suit Mutation No.86 dated 24-9-2008.

3. When summoned, the respondent/defendants filed an application for rejection of the plaint under Order VII Rule, 11, C.P.C. on the ground that before filing of the present suit, they had already transferred the suit property by way of sale to Haji Ghulam Hassan and Sanaullah. Meanwhile, the petitioner/plaintiff also sought their impleadment through an independent application.

4. Both the applications were contested by the parties through filing replications and the learned trial Judge vide judgment and order dated 7-7-2011 accepted the application of the defendants and rejected the suit of the plaintiff/petitioner under Order VII, Rule 11, C.P.C. while the application of the plaintiff/petitioner for impleadment of aforesaid two persons having become infructuous was dismissed.

5. Feeling aggrieved , the plaintiff challenged the aforesaid order of the learned trial Judge through RCA No.194/XIII of 2011 before the learned Additional District Judge-V D.I. Khan but in vain vide judgment and decree dated 17-2-2012. Hence this revision petition.

6. I have gone through the available record and considered the arguments of the learned counsel for the petitioner.

7. Admittedly, it is evident from the statement of P.W.1, Halqa Patwari, that the suit property had already been sold out by the defendants/respondents to Haji Hassan and Sanaullah through Wasiqa Registries Nos.2933 and 2934 and 21-10-2008 before the performance of Talb-e-Ishhad and Talb-e-Khasumat. The petitioner was legally required to have pre-empted the transaction of sale between Haji Khan and others and the subsequent vendees, i.e. Haji Hassan and Sanaullah which he failed to do. The subsequent sale by the respondents by no count fell within the parameters of the principle of lis pendens. Reliance in this respect may advantageously be placed on the case of Abdul Yameen Khan v. Ashrat Ali Khan and others (2004 SCMR 1270).

8. Thus the learned two courts below have rightly rejected the suit of the plaintiff/petitioner under Order VII Rule 11, C.P.C. and learned counsel for the petitioner failed to point out any illegality, irregularity or non-reading/mis-reading of evidence brought on record which passing the impugned findings which are accordingly upheld.

9. Consequently, I find no substance in this revision petition which is hereby dismissed in limine. M.H./205/P Revision dismissed.