1990 PLP 1373 (SCMR)

SAAD SAOOD JAN, J.‑‑‑These are two appeals arising out of two pre emption suits. As a common question of law arises in them, they are being disposed of together.

2. The appellants in C.A. No. 9‑P purchased 5 kanals 7 marlas of land in village Ambar. The respondent filed a suit for pre‑emption. The main defence taken by the appellants was that the sale was exempt from pre‑emption under clause (c) of section 5 of the N.‑W.F.P. Preemption Act, which reads as follows:‑‑ "No right of pre‑emption shall exist in respect of the sale of, or the 1'oreclosufe of, a right to redeem; ............................. (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." On the presumption that as there were two vendees and each was entitled to exemption in respect of two kanals of land under the abovementioned clause, the trial Court held that the exemption was available to the extent of 4 kanals only. Accordingly, it decreed the suit of the respondent to the extent of 1 kanal 7 marlas. The respondent preferred an appeal before the Additional District Judge which was dismissed. He then filed a revision petition in the High Court. The High Court held that as the sale was in excess of four kanals the exemption was in terms not applicable; accordingly it decreed the suit of the respondent in its entirety.

3. In Civil Appeal No. 85‑P, Murad and Sajiad Ali appellants Nos. 3 and 4 purchased ‑t kanals 4 marlas of land in village Gujar Garhi. The sale was an oral one and evidenced by a mutation. The respondent filed a suit for pre‑emption. On the plea of Murad Ali and Sajjad All that together with them their mother Mst. Noor Bibi and Ayaz Khan. appellants Nos. 1 and 2, had also purchased the land in question. appellants Nos, 1 and 2 were also impleaded. Their main defence was that the sale was exempt from pre‑emption by operation of clause (c) of section 5 of the N.‑W.F.P. Pre‑emption Act. The suit was decreed by the trial Court. The appellants preferred an appeal which was dismissed. They then filed a revision petition which also met the same fate.

4. Leave to appeal was granted in these two matters to consider the question whether a sale of land measuring more than 2 kanals of land purchased by a resident of a village would qualify for exemption under clause (c) of section 5 of the N.‑W.F.P. Pre‑emption Act if it was slightly in excess of the limit provided by the said clause and whether the spirit of law would be to protect the sale from pre‑emption or totally disallow the exemption.

5. A perusal of clause (c) of section 5 would show that one of the preconditions for seeking protection of the exemption is that the area purchased should be two kanals or less. Admittedly in both the appeals the appellants had purchased areas in excess of this limit. Therefore, they could not plead the exemption to defeat the right of pre‑emption of the respondents. It will be noticed that the land received by them under the sales was more than twice the limit set out in the exemption. These were thus not the cases where the limit had been only slightly exceeded. The fact that in both transactions the vendees were more than one would not make any difference as m each case there was only one sale‑ in the absence of any evidence that each vendee had taken a separate share and also separately paid the price for his share, the sale could not be broken up into as many sales as there were vendees for the purpose of allowing them the benefit of the exemption. The High Court was, therefore, right in holding that the sales in favour of the appellants were not covered by the exemption. These appeals are without any merit and arc hereby dismissed with no order as to cots. H.B.T./N‑269/S Appeals dismissed.