1987 PLP 2726 (MLD)

54 5 15 3 56 4 9 4 64 2 6 5 506 4 5 6 508 4 9 7 59 5 0 Total 28 17

5. Rabi crop is usually sown in October and is harvested in April. It means that the respondents had been occupying the above? mentioned 28 kanals 17 marlas of land as tenants before they purchased the land in dispute in mid summer on the 15th June,1972, when it was Kharif crop season. Consequently at the time of sale they could very well be said to have been in possession of the superior most right of pre-emption which had been conferred upon them by para 25(3) of the Land Reforms Regularion, 1972. The appellant lost his preferential pre-emption right as against the respondents in respect of the land comprising in their tenancy. However, the respondents had no right with regard to the rest of the land in dispute of which they were not tenants and the appellant's right thereto is undeniable.

6. The rule laid down by the Supreme Court of Pakistan in Fateh Khan v. Abdul Rahman [1983 S C M R 293], helps to determine the area of land which the respondents are entitled to retain. They purchased 42 Kanals 2 marlas out of 175 kanals 1 marla of jointly owned land of Khata No 6, that is to say, they purchased 842/3501th A share of the joint Khata. They are found to be in actual possession of only 28 kanals 17 marlas of land as tenants. As they purchased 842/3501th share they will be allowed to keep 842/3501th share of 28 kanals 17 marlas which comes to 6 kanals 19 marlas of land. The rest of 35 kanals 3 marlas of land in dispute will go to the appellant. The sale consideration of Rs.28,750.00 is not in dispute. The appellant has to pay Rs.24,004.00, the price equivalent of 35 kanals 3 marlas.

7. The contention of the learned counsel for the appellant that with the decision of the Shariat Appellate Bench of the Supreme Court of Pakistan delivered in Government of N.-W.F.P. v. Said Kamal Shah [P L D 1986 Supreme Court-360], the respondents' right of pre-emption has been totally extinguished rendering them disentitled to hold any share of land is, in face of the decision of this Court reported as Abdul Ghaffar Khan v. Saghir Ahmad Aslam [P L D 1987 Lah.358], without force because the present litigation having started before the 31st July, 1986, would be regulated and decided according to the provisions of para 25(3) of the Land Reforms Regulation, 197 2.

8. In view of the above the appeal is accepted, the judgment and decree of the learned appellate Court below is set aside and a decree for possession of 35 kanals 3 marlas of land out of 42 kanals 2 marlas of the land in dispute is passed in favour of the appellant and against the respondents and it is directed that the appellant shall pay into the trial Court Rs.24,004.00 (less the amount already deposited) on or before the 14th January, 1988, and on such payment being made the respondents shall deliver possession of 35 kanals 3 marlas out of 42 kanals 2 marlas of the land in dispute to the appellant whose title thereto shall be deemed to have accrued from the date of such payment but if the aforesaid purchase money of Rs.24,004.00 is not so paid the appellant's suit shall be dismissed with costs. The appellant's suit with regard to 6 kanals 19 marlas of land (out of 42 kanals 2 marlas of the land in dispute), of which the respondents have been adjudged to be entitled to keep possession, is dismissed. If the appellant has already deposited Rs.28750.00 in obedience to the decree of the learned trial Court he will be entitled to get refund of Rs.4746.00 (Rs.28750.00 minus Rs.24,004.00). In the circumstances of the case the parties are left to bear their own costs throughout. H.B.T./H-37/L.??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.