P L D 1994 Peshawar 195 (PLP)

Abdul Bari Khan for Petitioners. Muhammadullah Khan for Respondents. Date of hearing: 11th January, 1994. On the basis of Mutation No. 2738 dated 6‑2‑1982 certain agricultural land was purchased by defendant‑respondent Mst. Wadhua from defendants respondents Nos.2 to 5, namely, Mst. Zeenat etc. Mst. Wadhua later on returned the land back to the said vendors. After the return of the land by Mst. Wahdua, Azad Khan etc., the petitioners herein, lodged a pre‑emption suit against Mst. Wadhua and others before the Civil Court at Peshawar on 13‑3‑1982 and pre‑empted the transaction. The suit was although resisted but the learned Civil Judge after recording evidence on both sides passed a decree on 7‑5‑1985. On appeal before the Additional District Judge, the judgment and decree was set aside and the pre‑emption suit dismissed on 4‑11‑1985. Hence this petition under section 115, C.P.C.

2. I have heard Mr. Abdul Bari Khan, Advocate on behalf of the petitioner and Mr. Muhammadullah Khan, Advocate for the respondents. Admittedly, the suit land had been returned by Mst. Wadhua the vendee respondent to Mst. Zeenat etc. the vendors much before the institution of the pre‑emption suit by the petitioner. Section 17(1) of the N: W.F.P. Pre‑emption Act, 1950 (now repealed) under which this suit was lodged relates to the sale of the property to pre‑emptor or acquisition of right by original purchaser prior to suit. It reads like this:‑‑ "No suit for pre‑emption shall lie where the purchaser, has; prior to the institution of such suit, transferred the property in dispute to a person, having a right of pre‑emption equal or superior to that of the plaintiff." In the instant suit the property has been returned back to the vendors and admittedly before the institution of the litigation. Section 17 (1) draws no distinction for the transfer of the property by the purchaser to a particular person or class of persons excluding the person or persons from whom it had been initially purchased meaning thereby, that Mst. Wadhua could resell the land back to her vendors and as this sale had taken place at a time which was before the institution of the suit the petitioners could not, therefore, press their pre‑emption claim in view of the bar provided under section 17(1) of Act XIV of 1950. The learned counsel stated that the land could not be resold by the lady to the vendors and placed reliance on a reported case of the Lahore High Court in 1981 CLC 129 but that case has been decided under the Punjab Pre emption Act, 1913 where we do not find any parallel provision to that of section 17(1) of the N.‑W.F.P. Pre‑emption Act, 1950 and the judgment pronounced in the cited case under section 4 of the Punjab Pre‑emption Act, 1913 cannot be as such said to have met his argument. Accordingly, I see no error in the exercise of jurisdiction by the lower appellate Court whereby the petitioners have been non‑suited in their pre‑emption case and finding no force in this revision petition, dismiss it with costs. A.A./1567/P Revision dismissed.