P L D 2012 Peshawar 89 (PLP)

NISAR HUSSAIN KHAN, J.

Petitioners have called in question the Judgment and decree of learned Additional District Judge-Il Lakki Marwat, dated 16-1-2007, and that of learned Civil Judge, dated 30-1-2006, whereby pre-emption suit of respondent was decreed in his favour and appeal of the petitioners was also dismissed.

2. Learned counsel for the petitioner at the very outset submitted that he will only address on the point of distribution of the suit property amongst the vendees/petitioners and the pre-emptor/respondent, in terms of section 20 of N.-W.F.P. Pre-emption Act, 1987. He maintained that the petitioners purchased property vide Mutation No. 898 attested, on 20-10-2003, prior to the impugned mutation and pre-emption suit filed there against by the respondent has been dismissed by the lower Court against which revision petition is pending before this Court and if the said Civil Revision is dismissed the petitioners would be entitled to share the suit property with respondent/pre-emptor, on the principle of per, capita.

3. Learned counsel for respondent did not dispute the status of the petitioner in case of dismissal of C.R. No. 20 of 2007, in respect of Mutation No. 898, dated 20-10-2003. However, he controverted the stance of learned counsel for the petitioner, on the formula of distribution of the property, amongst the parties. He maintained that the property would be distributed amongst the two parties; pre-emptor and the vendees in equal shares.

4. I have given anxious consideration to the arguments of learned counsel for the parties and have gone thought the record.

5. The Revision Petition No. 20 of 2007, tiled Haji Ummat Khan v. Qaza Khan in connection with Mutation No. 898, dated 20-10-2003, has been dismissed by this Court ,for lack of proof of Talb-e-Muwathibat and Talb-e-Ishhad-had and decree. of the learned appellate Court has been maintained. As a consequence of dismissal of the pre-emption suit of respondent qua Mutation No. 898, petitioners would be deemed as co-owners in the suit property on the date of attestation of suit Mutation No.897, dated 18-11-2003. Thus by virtue of their co-ownership, petitioners/defendants have equal right of pre-emption' with the respondent/pre-emptor, as they fall within the same class of co-owners with the pre-emptor.

6. To resolve the controversy of distribution of the suit property amongst pre-emptor .and the vendees, it would be useful to reproduce section 20 of the N.-W.F.P. Pre-emption Act 1987 as below:-- . "

20. Where the pre-emptor and vendee equally entitled.

Where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by. them equally."

7. The language of section 20 of N.-W.F.P. Pre-emption Act, 1987, envisages that when the vendee and the pre-emptors fall within the same class of pre-emptors, the property, shall be shared by them equally. Which means that when the vendee and pre-emptors, stand on the same pedestal of co-ownership, they would share property on equal shares, without placing them in two groups. If analogy counsel for the respondent is accepted, then question arises that whether l3 in case of pre-emptors being more than one would take 1/2 share and the remaining 1/2 share would go to the single vendee. The answer would be emphatic no. Rather the property would be distributed amongst all the litigating members on the principle of per capita share. Likewise, when the vendees are more than one, the same principle would be applied.

8. Section 9 of N. -W.F.P. , Pre-emption Act, 1987, lends further support to this proposition, which is reproduced herein below:-- (9) Method of distribution of the property where more than one person equally entitled.

Where more than one person are found by the Court to be equally entitled to the right of pre-emption the property shall be distributed amongst them in equal shares. When sections 9 and 20 are read in conjunction, it becomes abundantly clear that as per section 9 when more than one person are found equally entitled to the right of pre-emption the property shall be distributed amongst them in equal shares. Section 20 contemplates that when vendee and pre-emptor fall within the "same class of pre-emptors" and "have C equal right of pre-emption" vividly conveying that when both have equal status qua the suit property, it would be shared by them equally. Keeping in view both the sections in juxtaposition, it evolves there from that both are supplementary to each other and cannot be taken in isolation from one another. Section 9 is more clear in its language, which complements the purpose and objects of the section 20 of N.-W.F.P. Pre-emption Act, 1987.

9. Section 20 of the Punjab Pre-emption Act, 1991 is verbatim copy of section 20 of the N.-W.F.P. Pre-emption Act, 1987, which has been discussed and interpreted by their lordship in the case titled "Khan GUI Khan and others v. Daraz Khan" (2010 SCMR.539). After scanning the case-law on the subject, since pre-partition, it has been settled that 'the property shall be distributed amongst the pre-emptor and the vendees as per capita. So by following the ratio of the Khan Gul Khan's case (supra), it is held that the suit property shall be shared, by the Petitioners/vendees and the respondent/pre-emptor, on the principle of per capita distribution. There are five vendees and one pre-emptor in the instant case, so the property shall be shared by all six of them in equal shares. As a consequence of which 1/6 share of the suit property would go to Haji Ummat Khan, respondent/pre-emptor whereas remaining 5/6 shares of the property would go to vendees/petitioners in equal shares.

10. Market value of the suit property has rightly been worked out by the lower Courts, on the basis of one year average. The pre-emptor /respondent shall pay the amount of his 1/6 share according to the value assessed by the lower Court.

11. This petition is disposed of in the above terms, with no order as to costs. M.W.A./31/P?? ????????????????????????????????????????????????????????????????????????????????? Order accordingly.