1986 PLP 2747 (MLD)

N.‑W.F.P. v. Said Kamal Shah P L D 1986 S C 360 ref. (d) Punjab Pre‑emption Act (I of 1913)‑ ‑‑‑S.15(b), thirdly‑‑Civil Procedure Code (V of 1908), 5.115‑‑Revisional jurisdiction, exercise of‑‑‑Pre‑emptor's right of pre‑emption was superior to that of vendee in respect of land sold by vendors of whom pre‑emptor was either residuary or distant kind red‑‑Pre‑emptor's right of pre‑emption, however, would not extend to land sold by vendors who were strangers to such pre‑emptor‑‑ High Court in exercise of revisional jurisdiction modified decree by extracting therefrom such land as was sold by vendors who were strangers to pre‑emptor‑‑Proportionate price of such land, was deducted from sale price of entire land. Mean Sher Alam for Petitioner. M.D. Tahir for Respondent. Date of hearing: 5th October, 1986. This petition seeks revision of the judgment and decree passed by the learned Civil Judge, Gujrat, on the 18th July, 1982, decreeing the respondent's suit for possession by pre‑emption of 21 Kanals. of the land in ‑dispute situate in the area of village Nassowali, Tehsil and District Gujrat, on payment of Rs.50,000 and of the learned Additional District Judge, Gujrat, dated the 13th October, 1985, endorsing in appeal the decision of the learned trial Court. Mgt. Rabia Bibi, daughter of Umra, Mgt. Hakam Bibi, Mgt. Amino Bibi, Mgt. Fatima Bibi, Asghar Ali, Mat. Irahad Begum, Mgt. Mumtaz Begum, Nazar Hussain, son of PIran Ditta, Mst. Rabia Bibi, widow of Piran Ditto, Ahmad Din and Nazar Hussain, husband of Mat. Zubeda Begum, who were owners of different shares in the land in question, sold it to Muhammad Amin Shah, petitioner, vide the registered sale‑deed, Exh.D‑1, on the 10th December, 1979. The amount of sale consideration of Rs.50,000 is no longer in dispute. Haji Muhammad, respondent, instituted suit on the 6th December, 1980, to pre‑empt the sale. His relationship with the vendors established on the record is as follows. He is the son of Mat. Rabia Bibi, daughter of Umra, sister's son of Mat. Hakam Bibi, Mgt. Amina Bibl, Mat. Fatima Bibl, mother's sister's son of Asghar Ali, Mst. Irahad Begum, Mgt. Mumtaz Begum, father's sister's son of Nazar Hussain, son of Piran Ditta. Mat. Rabia Bibi, widow, of Piran Ditta. is his mother's brother's widow, Ahmad Din is the husband of his mother's sister and Nazar Hussain (husband of Mst. Zubeda Begum) is the husband of his mother's brother's daughter. He claimed superior pre‑emptive right on the basis of his being heir of the vendors. The petitioner is not related to any of the vendors though he maintains that he is a co‑sharer of' the land in suit. The learned Courts below considered the respondent to be heir of the vendors on the basis of his relationship with them and therefore, passed decree in his favour. The petitioner has disputed the finding of the learned Courts in this behalf.

2. The question posed for determination before this Court in revision is whether the respondent would be entitled, as envisaged by section 15(b) thirdly of the Punjab Pre‑emption Act, 1913, to inherit the land in dispute on the death of the vendors. The vendors and the respondent profess Sunni faith. As son he would inherit his mother's estate a residary. As of Mst. Hakam Bibi, Mst. Amina Bibi, Mst. Fatima Bibi, Asghar Ali, Mst. Irshad Begum, Mst. Mumtaz Begum, Nazar Hussain son of Piran Ditto, he falls in the category of heirs classified as distant kindred. Therefore, he would be eligible to inherit their land if the aforesaid vendors were to die. However, as conceded by the learned counsel for the petitioner he cannot be accepted as heir, under Muslim Law, of Mgt. Rabia Bibi, widow of Piran Ditto, Ahmad Din and Nazar Hassain, husband of Mst. Zubeda Begum. Consequently his preferential pre‑emptive right extends to the land owned and sold by the vendors other than the last mentioned three persons and this area comes to 17 Kanals 19 Marlas and 8 Sarsahis as the land owned by Mst. Rabia, widow of Piran Ditta, Ahmad Din and Nazar Hussain. husband of Mat. Zubeda Begum, is 3 Kanals and Sarsahi in area. This calculation of area has been worked out and accepted by the learned counsel for the parties to be correct.

3. The learned counsel for the petitioner tried to put across fallacious argument that since the mother of the respondent was alive he would not be able to inherit the land of Mst, Hakam Bibi, Mst. Amino Bibi, Mst. Fatima Bibi, Asghar Ali, Mst. Irshad Begum, Mst. Mumtaz Begum, and Nazar Hussain, son of Piran Ditta, because the nearer in degree, namely, his mother, would exclude him and consequently he could not be considered to be an heir of these vendors and thus did not enjoy right of pre‑emption superior to that of the petitioner. It is well‑settled principle of law that while deciding the question of superiority of right of pre‑emption under section 15 (b) thirdly of the Punjab Pre‑emption Act, 1913, only the position of the plaintiff‑pre‑emptor and that of the vendee, and of no other relative of the vendor, is to be kept in view Taking the vendor to have died it is to be seen as to which of the parties‑‑the pre‑emptor and the vendee‑‑is entitled to inherit his (vendor's) property to the exclusion of other. The person who is entitled to inherit enjoys superior right of pre‑emption. Judged in the light of this principle the respondent, to the exclusion of the petitioner, would be entitled to inherit the estate left by Mst. Rabia Bibi, daughter of Umra, Hakam Bibi, Mst. Amina Bibi, Mst. Fatima Bibi, Asghar Ali, Mst. Irshad Begum, Mst Mumtaz Begum and Nazar Hussain, son of Piran Ditto. Consequently the superiority of the respondent's right of pre‑emption touching the land sold by the aforesaid vendors is established.

4. Referring to the decision of the Shariat Appellate Bench of the Supreme Court of Pakistan reported as Government of the N.‑W.F.P. v . Said Kamal Shah P L D 1986 S C 360, the learned counsel for the petitioner contended that the respondent could not claim superior right of pre‑emption on the basis of being heir of the vendors and, therefore, his suit merited dismissal. The Punjab Pre‑emption Act has not yet been amended so as to apply the rule laid down in the precedent wit retrospective effect. The jurisdiction exercised by this Court in revision is limited. Only the legality of 'the judgment of the learned Courts below has been questioned and is to be determined. The respondent under the law in force at the time of sale, institution of suit and passing of decree in his favour was no doubt in possession of right of pre‑emption superior to that of the petitioner in respect of the land sold by the vendors other than Mst. Rabia Bibi, widow of Piran Ditta, Ahmad Din and Nazar Hussain, husband.of Mst. Zubeda Begum, and so was the case when the petitioner's appeal was decided. The decision of the Supreme Court at the revisional stage cannot be applied to non‑suit the respondent.

5. In view of what has been said above the petition is accepted and modifying the decree of the learned trial and the appellate Courts below the respondent's. suit is decreed to the extent of 17 Kanals 19 Marlas and 8 Sarsahis of land out of 21 Kanals of the land in dispute and his suit regarding the remaining.3 Kanals I Sarsahi of land, which constituted the share of Mst. Rabia Bibi, widow of Piran Ditta, Ahmad Din and Nazar Hussain (husband of Mst. Zubeda Begum), is dismissed. The respondent has already deposited Rs.50,000 as price of the land in dispute in the learned trial Court. The petitioner will be paid Rs.42,888.86, the proportionate price of 17 Kanals 18 Marlas and 8 Sarsahis and the respondent will be refunded the balance of Rs.7 11.14 which amount represents the price of 3 Kanals Sarsahi of land. In the circumstances the parties are left to bear their own costs. A . A . Revision accepted.