1999CLC831 (PLP)

Abdul Latif Khan for Petitioner. Abdul Khaliq Khan for Respondent. Date of hearing: 12th November, 1998 A property measuring 10 Kanals and 15 Marlas in the Village "Kotli Tarli" Tehsil and District Mansehra comprising Khasra numbers 324 and 1222/325 of Khata No.127/225 was sold by Hayat Khan son of Inzullah Khan in favour of Mst. Gul Rangeena daughter of Amanullah Khan for a sum of Rs.3,00,000, as shown in the mutation.

2. Khushal Khan son of Abdul Qadir of the same village brought a suit for possession through pre‑emption which was contested by Mst. Gul Rangeena the vendee and ultimately, after the close of the evidence of the parties, the learned Senior Civil Judge, Mansehra dismissed the suit on 19‑10‑1992. The pre‑emptor went in appeal, heard by learned Additional District Judge, Mansehra, who partially accepted the same and granted a decree to the pre‑emptor for half of the portion in the suit land on the ground that during the pendency of the suit the vendee‑lady had improved her status on becoming a co‑sharer in the contiguous property through inheritance. Mst. Gul Rangeena vendee has come up. in revision.

3. Learned counsel for the petitioner assailed the judgment on the ground of non‑compliance of Talb‑e‑Muwathibat, non‑mentioning the witnesses thereof and the place thereof in the plaint, improvement of status by the vendee and that the pre‑emptor had no right of pre‑emption superior to that of vendee.

4. Coming to the evidence about Talb‑e‑Muwathibat, the pre‑emptor has given the date of Talb‑e‑Muwathibat as 8‑3‑1989 but has kept with him all the opportunities of making improvements during evidence, by not giving the place where he made Talb‑e‑Muwathibat and by not giving the names of the witnesses before whom such Talb was made. Anyhow the mutation is attested on 6‑3‑1989 and the pre‑emptor has admitted to have had made Talb‑e‑Muwathibat on 8‑3 1989. The same date of Talb‑e‑Muwathibat is mentioned in the notice of Talb‑e Ishhad, which in turn was issued on 13‑3‑1989. It has come in evidence.that the notice of Talb‑e‑Ishhad was given on the next day of making Talb‑e Muwathibat, or for that matter, Talb‑e‑Muwathibat was performed a day earlier to the drafting of notice, dated 13‑3‑1989. This brings us to undisputed mathematical calculation that Talb‑e‑hluwathibat was done on 12‑3‑1989 whereas in the plaint it is alleged to have been done on 8‑3‑1989. The very evidence of the pre‑emptor is seriously discrepant on the matter and a Talb‑e Muwathibat done on 12‑3‑1989 cannot be a valid Talb‑e‑Muwathibat when the A knowledge of mutation was attained on 8‑3‑1989. The suit of the pre‑emptor is liable to be dismissed on this score alone for failure of making prompt jumping demand at the time of knowledge of the same.

5. It is in these circumstances that Haroon P.W.6 in his statement has not mentioned about the date of Talb‑e‑Muwathibat. Same is the case with P.W.7. It is further supported by the defence witnesses who have proved that the plaintiff pre‑emptor had the knowledge of transaction and had agreed not to pre‑empt the same. In these circumstances one can have a strong presumption that as the pre emptor never had the intention to pre‑empt, he would equally have not made Talb‑e‑Muwathibat as well.

6. It is an admitted and proved fact that Mst. Gul Rangeena the vendee had become a co‑sharer in "Shamilat" through inheritance from her mother and hence the pre‑emptor at the time of decree did not possess a right superior to that of the vendee,

7. Aks Shajra Kishtwar and the copy of disputed mutation placed on record would certainly suggest that two Khasras have been sold in the disputed sale out of which one is Khasra No.324. Aks Shajra Kistwar would certainly reveal that the pre‑emptor is not contiguous to Khasra No.324 and hence his right of pre‑emption based only on contiguity is not extended to Khasra No.324. No decree of pre‑emption can be passed qua Khasra No.324 and hence by purchase of this Khasra the lady vendee has become a co‑sharer in the Khata and thus, happens to have a much superior right of pre‑emption to that of the pre emptor. When numerous Khasras are purchased by a vendee and to some Khasras the contiguity is not proved and such Khasras cannot be pre‑empted, the vendee becomes a co‑sharer in the Khata due to that Khasra and gets armed with a superior right of pre‑emption and can very well defend a suit for pre‑emption. On this score as well the pre-emptor was bound to be non‑suited.

8. Another aspect of the case is also worthy discussion, to the effect, that property through which the pre‑emptor claims his superior right was purchased by him through Mutation No. 1004 attested on 23‑6‑1982. The copy of such mutation was produced in Court for ready reference wherefrom it transpires that such property by the pre‑emptor was purchased for the construction of house which was exempted from pre‑emption under section 5 of the N.‑W.F.P. Pre emption Act, 1950. It is but sheer logic that a purchaser while purchasing a property for the construction of house and while seeking exemption against pre emption, cannot become a co‑sharer in the property in order to exercise his right of pre‑emption against any sale that might take in future. This I hold as a principle of law. but would not agree with the learned counsel for the petitioner that this principle be applied to the present case as well because here the pre‑ emptor has not based his superior right on co‑sharership but has based the same on contiguity.

9. The present N.‑W.F.P. Pre‑emption Act, 1987 gives a right of pre emption under section 5 thereof against a sale which in turn is defined under section 2(d) of the Act which means permanent transfer of ownership of a immovable property in exchange for a valuable consideration where the intricacies of Agricultural land, Agricultural immovable property or urban immovable property appearing in the Old Pre‑emption Act of 1950 and the Punjab Pre‑emption Act, do not figure.

10. Consequent upon the above discussion, I hold a firm opinion that the pre‑emptor had failed to perform Talb‑e‑Muwathibat, that the vendee lady had improved her status during the pendency of the suit through inheritance and that the superior right of the pre‑emptor having not extended to Khasra No.324 and' the same having had dropped, the vendee had thereby become a co‑sharer in Khata which right was superior to that of the pre‑emptor. The learned Additional District Judge has failed to appreciate the matter in its true legal as well as factual perspectives. The revision petition is accepted, the impugned judgment and decree, dated 13‑5‑1993 of the learned Additional District Judge, Mansehra is set‑aside and the original suit of the pre‑emptor is hereby dismissed. Q.M.H./M.A,K./281/P ~' Revision accepted.