2025 PLP 1996 (MLD)

Mahmood A. Khan, J.

In this revision application, the last judgment passed by the appellate Court as well as trial Court has been impugned in the proceedings of Civil Appeal No.59 of 2013 and F.C Suit No.31 of 1983, wherein the applicants are the persons who have acquired the subject property against whom and the other respondents, the respondent No.1 initiated proceedings for claiming his right of preemption. The said proceedings were decreed by the learned trial Court which was up-held where-after approach at the appellate stage as well as to this Court was made and thereafter to the Honourable Supreme Court leave was granted by order dated 02.04.2010. The matter was finally heard on 16.05.2013, when it was remanded and apparently the remand order required apart from the questions of grant of leave referred above (as the Honourable Supreme Court had preferred not to reply to the same) along with the points i.e. the decree is to be passed in terms of Order XXII Rule 14 C.P.C and to question whether the right of preemptor after his death survived or not to be decided by the trial Court as well as appellate Court.

2. It also bears from the record that the original decree in the matter had not provided the date of deposit of the amount after the matter having been remanded the learned trial Court decreed the suit at the same amount as earlier considering that the appellant has enjoyed the benefit of availing possession although discussed the inflation of prices and the original price not being available. Whereas the learned appellate Court had preferred not to discuss the forgiving points as referred above nor discussed the element of price. It also bears from the record that the amount required by the decree was deposited on 17.08.2013. It has also come on record that the persons claiming preemption right had expired on 22.07.2002.

3. On the earlier date, I had specifically called upon the learned counsel(s) for the assistance as to the preemption right liable for inheritance as under Muslim Law such right is not open to inheritance. Learned counsel for the applicants had relied upon the following authorities in this regard and has further contended that the question of witness at the first call is also left to be answered which has not been considered by the Courts below, whereas in respect of inheritable right learned counsel has contended that such right not being open is not available. Learned counsel in this regard has relied upon the case of Muhammad Yousaf alias Yousaf Ali v. Talib Hussain reported as [2012 SCMR page 1185).

4. Learned counsel for the respondent No.1 however, contended that the right of inheritance is available and in this regard he has referred to the case of Noor and others v. Mst. Sattan through Legal Representatives and others reported as [PLD 2013 Lahore 30), Maqsood Ahmed and others v. Member Board of Revenue Punjab Lahore and others reported as [2007 SCMR 399] and Fateh Khan v. Boze Mir reported as [PLD 1991 SC 782) and contended that once the decree has been obtained the right is to continue. In respect of the quoted authority of Noor and others v. Sattan through Legal Representatives and others, perhaps the typo has occurred as the case of Arshad Iqbal through LRs v. Abdul Qayyum Khan Babar is written as 1990 CLC page 1883 which ought to have been 1183, wherein it has been held that once a decree has been obtained the legal heirs are liable to obtain benefit. Learned counsel has also placed reliance upon Para 239 of Muhammad Law by Mullahi, claiming that in some conditions it is available. He has also contended that the trial Court in the original has considered that the admission of the seller as to offer made in his written statement Para 5 thereof the cross-examination and evidence irrespective to the statement in deviation thereof coming in the chief no cross-examination was required along with evidence to prove otherwise.

5. Having heard the learned counsel(s) for the parties and gone through the record. As such there are three (03) questions to be answered in the present matter. (1) Whether and in what conditions the inheritable right under a decree of preemption is available? (2) Whether the date of payment of amount as determined by the trial Court is liable to be considered along with the price as given therein? (3) Whether the plaintiff in the matter was able to prove his two required Talbs for the right of preemption. As to the question No.1, the judgment of Arshad Iqbal through LRs v. Abdul Qayyum Khan Babar (mentioned supra) relied upon by learned counsel has held that the right of pre-emption runs with the land and is not personal for the purposes of its enforceability in a Court of law. In other words, the right opmtomies to be personal to a preemptor until a decree is passed in his favour and, during this interregnum, this right is neither transferable nor heritable. In such a situation if the preemptor dies before obtaining a decree in his favour in the trial Court or as the case may be, the appellate or Revisional Court, his right of preemption shall remain exclusively personal and shall not survive to his heirs. But no sooner is a decree passed in favour of the pre-emptor than the right becomes a proprietary one and capable not only to be transferred but to be inherited as well. As such, once a decree has been obtained the determination of right has been made by the Court of law, the same crystallizes to the position that the same can be transferred by a further process, as such, the assignment of decree available under the C.P.C. However, the matter is not limited to the same in the present case the reason being that this right cannot go on indefinite, there has to be a restriction of enforceability accompanying the same. In the present case, where though after the decree the existence of the right to be further processed by the legal heirs cannot be found denied, however, the indefinite element cannot be allowed. The limitation of filing of first execution being three years from the date of a decrec along with the requirement seems to be not required and fulfilled. In the present case, it is as such held that in case the amount of decree that was awarded for the first time in 31.03.1987, had the respondent No.1 preferred to deposit the amount as determined or at least make an approach to the Court within a period of three years, the right that could have existed may have continued; failing which, the right though may be available may not have any force of enforcement which is otherwise the law of limitation in respect of claims that the right exists but the remedy is lost.

6. In the present case it bears from the record that the trial Court has preferred to keep the price as earlier coming up in 1987 which can never be entertained as the inflation is an ever visible element and the amount required to be deposited in year 2013 cannot by any stretch of imagination be considered as adjustable amount that was paid in 1987. The stand that the other party was enjoying the same is not found favourable as the other side never out pocket the price amount and both the parties cannot be provided any benefit or for that matter any law on account of the acts / process of the Courts.

7. In respect to the third question, I have gone through the evidence with the assistance of learned counsel(s) wherein the witness Muhammad Yaqoob said to have being present at the first talb though have died, the claimant of the preemption preferred never to bring any secondary evidence in this regard. In the cross-examination, the appellant and the seller both have stated that no first talab was made and irrespective to the contentions raised in the written statement which were apparently never confronted to the witness the material in record does not show that the respondent No.1 was able to prove that the first talab was ever made and in the said circumstances the decree of pre-emption is not found available also.

8. For the forgiving reasons, this Revision Application stands allowed and consequently both the judgments of the trial Court as well as appellate Court are set-aside. JK/A-49/Sindh Revision allowed