1999 PLP 373 (MLD)

SARDAR SAID MUHAMMAD KHAN, C.J.

This appeal has been directed against the judgment and decree passed by the High Court on 7-12-1996, whereby the appeal filed by the appellant herein, was dismissed.

2. The brief facts of case are that the respondent filed a suit in the Court of Sub-Judge, for enforcing his right of prior purchase on the basis of being owner in 'Mahal'. The trial Court decreed the suit of the respondent. The appellant as well as the respondent filed cross-appeals to the District Judge: the appellant herein alleging that the respondent had no right of prior purchase because he could not be regarded as an owner in the ' Mahal' and the respondent seeking the reduction in the consideration of the sale-deed. The appeal filed by the respondent was partly accepted and decretal amount was reduced. The appellant went up in appeal before the High Court but his appeal was dismissed.

3. We have heard the arguments and perused the file. It has been contended by Mr. Riaz Tabassum, Advocate, the learned counsel for the appellant, that the respondent does not have the right of prior purchase, because he was not an owner in the 'Mahal'. He has argued that the respondent obtained the provisional proprietary rights from the Custodian as an allottee of evacuee land and, thus, his provisional title to property in ' Mahal' doe not give him the prior right of purchase for exercising the right of pre-emption.

4. In reply, Raja Muhammad Siddique Khan, Advocate, the learned counsel for the respondent, has controverted the arguments. He has argued that the suit land was an evacuee property which was purchased by the appellant from the allottees after the vendors had obtained the provisional proprietary rights from the Custodian. Thus, according to the learned counsel for the respondent, the suit for enforcing the right of pre-emption is based upon the provisional ownership but on the other hand the suit land purchased by the appellant was also evacuee property which was purchased by the appellant from the allottees who had obtained proprietary rights from the Custodian. Therefore, according to the learned counsel for the respondent, the nature of the ownership of the land which form basis for the enforcement of right of pre-emption is identical to the ownership of the respondent. According to the learned counsel for the respondent, as no law has been cited that provisional owner is debarred from exercising the right of pre-emption, the impugned judgment is not open to exception.

5. After giving due consideration to the matter, we are of the view that no law has been cited by the learned counsel for the appellant that in the circumstances of the case the respondent had no right of pre-emption because the nature of his ownership was provisional. Therefore, the contention of the counsel for the appellant is not tenable.

6. Next, it has been contended by the learned counsel for the appellant that as the suit land even after transferring the proprietary rights remains evacuee property, no pre-emption decree can be passed by the civil Court. It may be stated here that the matter has been dealt with by this Court at some length in the case entitled Ghulam Hussain v. Muhammad Sarwar (Civil Appeal No.84. of 1996 decided on 20-6-1997) wherein it has been held that a civil Court is fully competent to pass a pre-emption decree even in case of evacuee property because in such an eventuality, the civil Court does not act in a way which is prejudicial to the interests of Custodian or the Rehabilitation Authorities; the bar to deal with the evacuee property by the civil Court would be attracted only to the cases where the exercise of such a jurisdiction offends against the interest of the Custodian or Rehabilitation Authorities. In the light of what has been stated above finding no force in this appeal, it is hereby dismissed with costs. C.M.A./262/SC(AJ&K)/ Appeal dismissed.