1988 PLP 94 (CLC)

Ejaz Muhammad Khan for Petitioner. Mazhar Alam Khan for Respondents. Date of hearing: 21st March, 1987. This revision petition by the defendant‑vendee is directed against the judgment and Order of District Judge, D.I. Khan dated 19‑11‑1984 whereby he dismissed his appeal against the judgment and decree of Additional Civil Judge, D.I. Khan dated 10‑2‑1983 decreeing plaintiffs‑respondents' suit for possession by pre‑emption of the suit land.

2. The dispute is with regard to a vacant plot of land measuring 7J marlas described by boundaries therein purchased by the petitioner herein through a registered sale‑deed dated 13‑12‑1976, for an ostensible sum of Rs.2,

000. This sale was pre‑empted by the respondents herein by instituting suit for pre‑emption in the Court of Senior Civil Judge, D.I. Khan. Apart from claiming superior right of pre‑emption the plaintiffs challenged the sale consideration entered in the deed as fictitious and alleged that the sale has taken place for the sum of Rs.500. It was further alleged that the area sold to the defendant measuring about 5 marlas 83 feet, but it has been wrongly shown as 71 marlas by including the thoroughfare reaching to the house of the plaintiffs as part of the plot sold. In his written statement, the defendant resisted the plaintiffs' suit on various pleas including the plea of exemption of the sale for pre‑emption under section 5(c) of the N.‑W.F.P. Pre‑emption Act. It was stated that he has improved the vacant plot at the costs of Rs.2,000 and that a sum of Rs.2,000 was fixed in good faith and paid to the vendor as sale consideration for the plot. After framing as many as 15 issues arising from the pleadings of the parties led their evidence in support thereof, a commission was also appointed to assess the market value of the plot and to work out the costs of improvement, if any, made by the defendant. The learned trial Judge on consideration of the evidence of the parties decided almost all the issues in favour of the plaintiffs and against the defendant. The sum of Rs.2,000 was held to be the actual sale consideration fixed and paid to the vendor. According to the commission's report since no improvement was found on the suit plot, the plaintiffs were held to have got superior right of pre‑emption and that the defendant was not entitled to the exemption under section 5(c) of the N.‑W.F.P. Pre‑emption Act, 1950. On this view of the matter the plaintffs' suit was decreed against the defendant on payment of Rs.2,000 as sale consideration vide judgment and decree dated 10‑2‑1983. Feeling aggrieved of the judgment and decree the defendant went in appeal before the District Judge, D.I. Khan, who, after thorough discussion on the point urged before him, dismissed his appeal on 19‑11‑1984.

3. The learned counsel for the petitioner contended that the judgments and decrees of both the Courts below are against facts, law and evidence on the record, that while deciding issue No.3, the learned Courts below ignored the evidence of the parties led thereon and misinterpreted the law applicable thereto. It was lastly contented that there was no evidence on the record to prove that the plaintiffs own their property contiguous to the suit plot. 3‑A. I have heard the learned counsel for both the ‑parties in detail on these points and have gone through the record. The contention of the learned counsel for the petitioner that the judgments and decrees of both Courts below are against facts and law is not supported by the evidence on record. Two issues are mainly relevant for the disposal of this revision petition, firstly, whether the plaintiffs have got superior right of pre‑emption and, secondly, whether the transaction in question is exempt from pre‑emption under section 5(c) of the N.‑W.F.P. Pre‑emption Act. As far as the superior right of pre‑emption of the plaintiffs‑respondents herein is concerned, in the registered sale‑deed copy EX.PW.1/1 executed in favour of the defendant‑vendee while giving the boundaries of the plot in question to the west of the suit plot is shown the plot owned by Muhammad Arif and Muhammad Hizbullah sons of Hafiz Atta Muhammad the plaintiffs‑respondents. Furthermore, a Commission was appointed with the consent of both the parties to go on the spot and to assess compensation for improvement allegedly made by the defendant‑vendee. The Commission alongwith his report has submitted site‑plan of the suit plot in which house of the plaintiffs‑respondents is shown to the west and the boundaries given tally with the boundaries given in the impugned registered sale‑deed. Apart from the said evidence, Abdullah Khan and Rahim Bakhsh, disinterested witnesses, produced by the defendant deposed that the plaintiffs' house is contiguous to the suit!. plot. Both the Courts below on the basis of this evidence rightly held that the plaintiffs own their houses contiguous to the suit plot and have, therefore, superior right of pre‑emption.

4. As far as the issue regarding exemption is concerned, it has been proved that at the time of the disputed sale in his favour the defendant's father was alive and it was on his death that certain residential property devolved on him and his other co‑heirs during the pendency of the suit. Plaintiffs in rebuttal of the plea exemption placed on file certified copy of mutation No. 1228 attested on 29‑12‑1977, which is Ex.PW.2/1 on the file, whereby the defendant alongwith his father and brother purchased land measuring 3 kanals, in equal share, for construction of houses thereon for their residence. This transaction took place after the impugned sale. The finding of the Courts below, extending the principle that the defendant‑vendee even while seeking the exemption under section 5(c) of the N.W.F.P. Pre‑emption Act, 1950 is to have and to retain the qualification for seeking exemption at the time of sale, filing of the suit and passing of the decree, appears to be misconceived. Similarly, acquisition of residential property, vacant site or agricultural land after the sale, of which exemption, is claimed could not deprive the vendee of such right if he otherwise is found entitled to. But he would be debarred from raising such plea regarding the subsequent sale if by the earlier sale he owns village immovable property or vacant site measuring more than 1 kanal.

5. In the instance case it was for the defendant vendee to have proved unambiguously that at the time of impugned sale he possessed all the necessary qualifications for seeking exemption under section 5(c) of N.‑W.F.P. Pre‑emption Act. However, from the evidence on record wherein it has been admitted by the defendant that he has disposed of the plot in Zafar Abad Colony, it was for him to have proved when and who purchased the said plot and in what capacity and when he disposed of the same. This being the position, both the Courts below have rightly held that the defendant‑vendee failed to prove that he was entitled to the examination available under section 5(c) of the N.‑W.F.P., Pre‑emption Act. The concurrent finding of fact determined by both the Courts below based on proper appraisal of the evidence on record is unexceptional in revisional jurisdiction. Consequently, this revision petition stands dismissed Leaving to parties to bear their own costs. S. Q./560/P Petition dismissed.