1989 PLP 1739 (CLC)

7. In fact a situation of this nature had already come before the Supreme Court and was examined in the case of Qasim Jan v. Nawaz Khan 1985 SCMR 926 where ratio decidendi was that once it is established that the vendee purchased an area of land not more than the one allowed in the respective exception, and is purchased for the construction of the house, the sale was exempt from pre‑emption.

8. It appears that the law laid down in the Supreme Court case was not brought to the notice of the learned Single Judge of this Court while deciding' Habibur Rehman's case. Later the same point came before this Court as also the Supreme Court and consistent view has been that a vendee, who has purchased a portion of land for the construction of house out of a joint holding of land, if otherwise conforms to the requirement of exemption as provided in the Act of 1950, shall be entitled to the statutory protection afforded to him and it is not essentially a condition precedent for the vendee to get his share separated by means of partition proceedings. While I respectfully follow the rule laid down by the Supreme Court in Qasim Khan's case, I have no hesitation in holding that. both the learned lower Courts have misconceived the legal position and the 1 decree, passed by them cannot be sustained on this score.

9. Adverting, however, to the point raised by the learned counsel for the plaintiff‑respondent, it is presently a settled position of law that a plaintiff, having obtained a decree for pre‑emption in the trial forum before 31‑7‑1986, can defend 1 the decree granted in his favour in higher forums, thereafter on the basis of the Act of 1950. The question that falls for consideration is as to whether the decree granted in favour of pre‑emptor can nevertheless be assailed and the pre‑emptor non‑suited, at appellate or revisional stage, on successfully pressing into service the exceptions available to the vendee under section 5(c) or 5(d) of the Act of 1950 which has been denied to him by the trial or, appellate Court.

10. To resolve the controversy, however, a reference to sections 4 and 5 of the Act of 1950, be made with advantage which runs thus:‑ "Section

4. Right of Pre‑emption.‑‑The right of pre‑emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only m the case of sales and in respect of such property only in the case of sales or of fore‑closure of the right to redeem such property". Section‑

5. No rig‑ht of pre‑emption shall exist in respect of the sale of, or the foreclosure of, a right to redeem:‑ (a) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑.‑‑‑‑ (b) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (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. (d) agricultural land or urban immovable property, consisting of an area measuring not more than ten Marlas purchased by a resident of the town in which such land or property is situated, where he neither owns a house nor a vacant site measuring more than five Marlas, for constructing a house for his own occupation.

11. A bare reading of the above‑quoted provisions shows that in granting the right of pre‑emption under section 4, the preference to other persons to acquire immovable property is the essence of the right of pre‑emption. Once this preference, on the factual premises or by operation of law fades or is eclipsed, the right of pre‑emption granted under section 4 cannot be exercised.

12. It shall thus be pertinent to note that section 5 of the Act of 1950, somewhat more forcefully envisages that the right of pre‑emption, in relation to certain kinds of properties or pertaining to acquisition of immovable property under certain conditions, ceases to exist as is evident from the very opening expression of section 5 (ibid).

13. Thus from the facts, if it is established that the vendee fulfilled the requirements of clause (c) or clause (d) of section 5 of the Act of 1950, the consequences flowing there from will be non‑existence of the preferential right of acquiring property under section 4 (ibid), inasmuch as the pre‑emptor would be I found bereft of this right, his superior qualifications, if any, at the date and time C of the sale, notwithstanding.

14. Again when a suit of pre‑emption is resisted on the ground of exemption under section 5(c) or, as the case may be, under section 5(d) of the Act of 1950, in essence, it tantamounts to questioning the very right of pre‑emption being not available to the pre‑emptor and in case a decree is granted, an appeal or revision shall not only be maintainable but the plaintiff can also be non‑suited if the defendant vendee is found to have successfully established that the relevant exception was available to him under section 5 of the Act of 1950.

15. A reference to the judgment of the Supreme Court in Sardar Ali's case PLD 1988 SC 287, shows that such a situation seemingly has not arisen and as such neither could be examined nor could be decided but the principle laid down therein is more than clear in that where decree in a pre‑emption case has been passed in favour of the plaintiff on the basis of the old law before 31‑7‑1986, the' same law would continue to govern the case upto the Supreme Court and the plaintiff would be entitled accordingly to defend the decree.

16. In this context of the matter, it can be stressed with an amount of certainty that in such a situation, if the old law is to govern the case of the plaintiff even after 31‑7‑1986 without meeting the requirements of `Talab‑e‑Mawasibat' and `Talab‑e‑Ashhad', then on the parity of reasoning, the right of exemption from the pre‑emption, vested in a vendee shall also be available to him.

17. In view of the above, I have no hesitation in holding that under the present state of law while the plaintiffs can defend his decree under a Statute which already stood struck off, the defendant vendee, can with equal force, assail a decree granted in favour of the pre‑emptor on the simple ground that even if the pre‑emptor was entitled to a decree of pre‑emption on the ground as contained in section 4 of the Act of 1950, the same could be negated on D successfully pressing into service the exception to the rule of pre‑emption as enshrined in section 5(c) or as the case may be under section 5(d) of the N. W.F.P. Pre‑emption Act, 1950.

18. Resultantly, I hold that the defendant‑petitioner has been wrongly denied the right accrued to him under section 5(c) of the Act of 1950 and while allowing this petition, I set aside the judgments and decrees of both the lower Courts. The suit of the respondent stands dismissed. No order as to costs. AA./788/P Revision accepted.