1986 PLP 524 (MLD)

Syed Jamshed Ali for Respondents Nos.1 to

3. Date of hearing: 18th November, 1985. The land in dispute measuring 79 Kanals and 7 Marlas, was sold away by one Hafiz Dost Muhamsnad to the petitioner and Ahmad Din, respondent No. 4, herein, in equal shares, by means of a registered sale‑deed, dated 11‑6‑1977. Respondents Nos.1 to 3 filed a suit to pre‑empt this sale. It was decreed on 10‑3‑1980 on the basis of concession given in the written statement coupled with the statement of respondent No.4 recorded by learned trial Court, whereby he confessed the judgment.

2. It appears that the petitioner was then a minor. He applied to the learned trial Court for setting aside of the decree, inter alia, on the plea that it was violative of Order XXXII, Rule 7, C. P. C. This application was allowed and the learned trial Court, vide its order, dated 22‑6‑1982, set aside the decree to the extent .of half of the land, falling to the petitioner's share. However, the decree against Ahmad Din was not disturbed.

3. The petitioner then filed a review petition on the ground that the decree, was, liable to be set aside as a whole, as it could not be passed for a part of the land in dispute. The `review‑petition was dismissed on 24‑10‑1982.

4. The petitioner thereafter filed a revision and contended that the decree was hit by the rule of partial pre‑emption. However, the learned Additional District Judge, who heard the revision, was, not influenced by this argument. Further, in his opinion, there was, no good ground to review the judgment and decree, dated 10‑3‑1980. Consequently, on 20‑11‑1982, the revision petition was also dismissed.

5. The petitioner has, now, invoked the writ jurisdiction of this Court.

6. I have heard the learned counsel for the parties and examined the available record.

7. Two contentions have been raised on behalf of the petitioner. Firstly, the sale is not divisible and, therefore, the learned trial Court fell in error to pass a decree for half of the suit land. Secondly, the area of the land is less than the subsistence holding; the decree practically has the effect of the partitioning of an area less than the subsistence holding and, thus, it is violative of para. 22 of Land Reforms Regulation, 1972.

8. I am unable to agree with any of these submissions. The right of pre‑emption, is, a right of substitution of the pre‑emptor for the vendee and, therefore, he cannot pick and choose and exercise this right regarding only a part of the property sold. He must take the bargain in its entirety. Thus, if a pre‑emptor brings a suit against one of the joint‑purchasers to pre‑empt a part of the sale on payment of proportionate sale‑price and the sale is found to be indivisible, the suit being for partial pre‑emption must fail. In the instant case, no finding has been recorded by the Courts below as to the divisibility or otherwise of the sale. The respondents filed a suit to pre‑empt the entire sale. However, the decree passed in their favour was for half of the land only. The doctrine of partial pre‑emption has nexus with the conduct of the pre‑emptor in filing a suit in respect of part of the bargain and has no application where a decree for a portion of the suit land is passed by the Court.

9. As regards the contravention of para. 22 of the Land Reforms Regulation, no Court other than the authorities, under the Martial Law Regulation No.115, can take notice of such contravention. It was held so in Muhammad Bashir v. Ghulam Akbar 1982 S C M R 1018. Further, in the case of Mangta Khan and others v. Mst. Hamida Begum and others P L D 1981 S C 51, as well, the Supreme Court, has maintained that in deciding a pre‑emption suit, the Court has not to test the validity of the transaction on the touchstone of provisions of M. L. R.

64. It is, therefore, idle for the petitioner to argue that para. 22 of the Land Reforms Regulation, has been violated.

10. It is not without significance that in his application, dated 27‑5‑1982, for setting aside of the decree, dated 10‑3‑1980, the petitioner made a prayer to have the same rendered ineffective, on his rights in the suit land. This prayer was granted. It is not now, open to him to assail the decree against the co‑vendee Ahmad Din, who never challenged the same. In fact, the petitioner would have no locus standi to call in question the decree passed against Ahmad Din. For this reason, as well, no relief can be given to him in exercise of writ jurisdiction.

11. As both the contentions, raised by the petitioner, have failed, this writ petition has no merit. It is, dismissed but with no order as to costs. H. B. T. Petition dismissed.