1987 PLP 129 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑Khushi Muhammad and three others have sought leave to appeal against the order of a learned Division Bench of the Lahore High Court, Bahawalpur Bench, dated 22nd May 1985/2nd June, 1985, whereby their appeal from the judgment and decree passed by the learned Civil Judge, 1st Class, Ahmadpur East, dated 20‑1‑1980, was partly allowed.

2. Land measuring 510 Kanals situate in Mauza Khameesa Pakhiwal, Tehsil Ahmadpur East, District Bahawalpur, was sold to the petitioners for an ostensible sum of Rs.1,83000. The sale was pre‑empted by Sher Muhammad and others, respondents, on the ground that they being the legal heirs of the vendors have a superior right of pre‑emption and also that in fact the land was sold for Rs.1,33,000 but in order to ward off their right of pre‑emption, an inflated amount of Rs.1,83,000 had been given as the sale price. This was contested by the petitioners refuting the claim of the respondents of having a preferential right and also that the pre‑emptors had failed to deposit the Zar‑e‑Panjum in compliance with the order of the Court. The pleadings of the parties resulted in the framing of as many as twelve issues, of which issues 1 and 7 are relevant for the purpose of the present petition and are giver below: "(1) Whether the plaintiffs have got superior right of pre‑emption? (7)Whether the suit is not maintainable in its present form in view of the preliminary objection No.4 of the written statement?" The learned trial Court considering the material brought by the parties on issue No.1 held that since the pre‑emptors are the legal heirs of the vendors, they have a superior right of pre‑emption and thus, decided issue No1 in their favour. While dealing with issue No.7 it held that since the defendants (now petitioners) remained silent and did not agitate against the order of the then learned Civil Judge allowing the prayer for extension of time and submission of security bonds, hence the silence of the vendees amounted to acquiescence and thus, decided this issue against the petitioners and passed a decree in favour of the respondents vide judgment dated 20‑1‑1980. On appeal, however, the findings of the, learned trial Court on both the above issues were maintained by the Division Bench of the High Court, Bahawalpur Bench, but the appeal of the petitioners was partly accepted by awarding them a sum ,of Rs.5,000 as costs of houses constructed by them on the disputed land through the impugned judgment, hence the present petition.

3. We have heard the learned counsel for the petitioners who has vehemently disputed the findings of the Courts below on both the issues. He, inter alia, contends that section 15(a) and (b), clause thirdly, of the Punjab Pre‑emption Act, recognizing a right of pre‑emption of a successor of a vendor has been held to be repugnant to the injunction of Islam, therefore, in view of this legal position, the suit brought by the pre‑emptors must fail. Reliance in this respect is placed on Government of N.‑W.F.P. v. Said Kamal Shah P L D 1986 SC

360. I

4. Since leave has been granted by this Court in a number of cases where similar point has been urged we, therefore, grant leave in this petition also and direct that this appeal shall be heard along with those other appeals. Security Rs.2,

000. M.I. Leave granted.