1983 PLP 1116 (SCMR)

NASIM HASAN SHAH, J.‑‑This petition for leave to appeal is directed against the judgment dated 21‑12‑1982 passed by a learned Single Judge of the Lahore High Court, sitting at Rawalpindi in R. S. A. No. 173 of 1981. The relevant facts briefly stated are that one Ahmad Khan sold about 131 Kanals of land to Ghulam Sarwar, respondent No. 1, through a registered deed dated 9‑12‑1976. However, within three weeks of the said go the same was cancelled through a deed of retraction on tile ground that some differences had arisen between the parties on account of the fact that some Shamlat land which was not intended to be conveyed to the vendee had also been included in the sale‑deed and that these differences had obliged the parties to canal the sale. However, although the sale was cancelled on 30‑12‑1976, two pre- emption suits were brought to pre‑empt the sale long after the said date ; one was brought in the civil Court by Mumtaz‑ul‑Hassan (respondent No. Z herein), who is son of the vendor Ahmad Khan, while the other was brought by Fateh Muhammad (petitioner herein) before the Collector. Fateh Muhammad alleged that be being a tenant of Ahmad Khan he 'had the fit at right of pre‑emption. The suit filed by the petitioner Fateh Muhammad was actually decreed by the Collector on 18‑5‑1978 when respondent No. 2 in the meanwhile also filed a suit before the civil Court and impleaded the petitioner herein as a defendant therein. The vendee Ghulam Sarwar (respondent No. 1 herein) denied the claim of both the pre‑emptors and pleaded that since the sale, which was sought to be pre‑empted, bad already been cancelled the land in dispute had reverted to the vendor and the suit for pre‑emption was not maintainable. On the other hand, the petitioner herein relied upon the decree passed in his favour by the Collector dated 18‑5‑1978. The learned trial Court held that the cancellation of the deed of sale was a genuine document and as the sale stood cancelled, the pre‑emptor did not have any cause of action. Accordingly, toe suit filed by Mumtaz‑ul‑Hassan, respondent No. 2 herein, was dismissed. At the same time, it was also held that on account of the cancellation of the sale, the decree dated I8‑5‑1978 passed in favour of the petitioner herein also became ineffective. Both the pre‑emptors challenged the judgment and decree of the learned trial Court before the learned District Judge, Jhelum, but both of them were dismissed. Aggrieved thereby Fateh Muhammad (the petitioner herein) alone challenged the said judgment by filing a second appeal before the High Court. The same having also failed. Hence the petition for leave to appeal. We have heard Kh. Muhammad Yusuf Saraf, learned counsel for t petitioner, in support of this petition, but consider that the view taken by the Courts below and expressed so happily in the impugned judgment of the Hi g Court is not open to any exception. The sale, which was sought to b pre‑empted, had been cancelled only 21 days after the execution of the sale-deed. The recission of the earlier contract of sale was by a registered deed and the trial Court as well as the first appellate Court had found the said deed of retraction to be genuine and valid. The suits for pre‑emption were filed after 30‑12‑1976 when the sale already stood cancelled and was no long in existence. In the absence of any subsisting sale, the question of pre-empting any sale, therefore, did not arise, especially when it has been found as fact, with which we are not inclined to interfere, that the deed of retraction dated 30‑12‑1976 was indeed, a deed of cancellation and not one of re‑sale. There is, therefore, no force in this petition which is, accordingly, hereby dismissed. M, Z, M Petition dismissed.