P L D 1983 Peshawar 129 (PLP)

(4) Whether defendant No. 2 has purchased the suit land for the construction of a house and accordingly the transaction suit is exempt from pre‑emption? O. P. D. (5) Market value? O. P. P. (6) Relief.

4. After recording the evidence as produced by the parties, the learned Senior Civil Judge; Bannu decided issue No. 1 against the plaintiff: Regarding issue No. 2, he held that defendant No. 2 had no superior' right of pre‑emption as against the defendant‑vendee and as such the transfer in his favour would not affect the case of the plaintiff‑pre‑emptor. The learned Senior Civil Judge did not give any findings on issues Nos. 3, 4 and 5 and dismissed the suit of the plaintiff on 19‑7‑1977. The plaintiff, feeling aggrieved, preferred an appeal before the learned District Judge, Bannu, who held that defendant No. 2 had purchased the suit land for construction of a house and accordingly the transaction in the suit was exempt from pre‑emption. He also dismissed the appeal of the plaintiff vide his judgment dated 3‑7‑1978.

5. It is clear from the pleadings of the parties that the plaintiff claimed suit land on the basis of a superior pre‑emptive right and the defendant No. 1, having no such right, appears to have transferred the suit land to defendant No. 2 and the latter alleged that he had purchased the suit land from defendant No. 1 for the purpose of construction of a house, and that the transaction was, therefore, exempt from pre‑emption. The main question, therefore, was whether the transfer of the suit land by defendant No. 1, * in favour of defendant No. 2, was actually in recognition of superior pre‑emptive right or not. However, it may be stated, that both the learned lower Courts have failed to grasp the real dispute between the parties. The learned Senior Civil Judge, appears to be labouring under the impression that defendant No. I was a tenant‑at‑will of the suit land and hence the plaintiff could not claim any superior pre‑emptive right. On the contrary, the learned District Judge, Bannu has also given the same finding. It has, therefore, become imperative to discuss the issues afresh and to decide them in the light of the pleadings and evidence of the parties. Issue No. 1.--‑It is established from the revenue record produced in evidence that the plaintiff is owner of the land contiguous to the suit land and that the defendants did not possess any such right. The defendant No. 1 had nowhere mentioned in his written statement that he was tenant o the suit land and as such he had a better title to own it. Even otherwise if he possessed such right, he would not have then transferred the land to defendant No.

2. They very fact that only after two months of the sale in his favour, the defendant No. 1 hastened to transfer the suit land to defendant No. 2, would show that actually he did not possess any pre‑emptive right therein. The learned District Judge has erroneously involved himself in the discussion about the superior pre‑emptive right of the defendant No. 1 on the plea of tenancy. The revenue record nowhere shows Muqarra Khan being in possession of the suit land as a tenant. He could not claim pre‑emptive right on the strength of any entries in the revenue record in the name of his son Shah Sawar Similarly, the learned Senior, Civil Judge has also erroneously held that defendant No. 1 is a tenant of he suit land. This finding is without the support of any evidence, documentary or oral. Actually, both the defendants could not claim any pre‑emptive right su perior to that of the plaintiff. Otherwise, they would have definitely asserted that in their written statements and evidence. The case of defendant No. 2, simpliciter was that be had purchased the suit land from defendant No. 1 for construction of a house, which means that actually he had .no pre‑emptive right superior to that of the plaintiff. I would, therefore, set aside the findings of both the Courts below on this issue and would decide it in favour of the plaintiff. Issues Nos. 2 and 4.‑--Both these issues are inter‑connected, hence taken together. The transfer of the suit land by defendant No. 1 in favour of defen dant No. 2 before the institution of the suit by the plaintiff‑petitioner Inayat ullah would show that defendant No. 1 had transferred the suit land to the latter in recognition of any superior pre‑emptive right of the latter. This can be done under subsection (1) of section 17 of the N.‑W. F. P. Pre‑emption Act, 1950. For the sake of better understanding, this provision is reproduced as under :‑ Section 17(1).‑‑"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." It shall thus be seen that the original vendee, after finding that he could not retain the land purchased by him on account of any pre‑emptive right of any other person was at liberty to transfer the land to any person having a right of pre‑emption equal to or superior to that of the person who may bring a suit on the basis of his pre‑emptive right. This could be done by the vendee prior to the institution of any suit. The same appears to be the intention of defendant No. 1 while transferring the land to defendant No.

2. The next question is whether the defendant No. 2, who purchased the land from the original vendee, did, in fact, possess any such pre‑emptive right. According to section 12 of the said Act, which is, for the sake of better understanding, reproduced below, the defendant No. 2 could retain the suit property if he possessed any of the pre‑emptive rights mentioned in the said section :‑‑ "Section 12.‑--The right of pre‑emption in respect of agricultural land, village immovable property and urban immovable property shall vest: firstly, in the co‑sharers in such land or property, if any: secondly, in a participator in immunities, appendages, such as a right of way or a right to discharge water; thirdly, in owners of contiguous property, if any: fourthly, in a landlord when the sale is by an occupancy tenant of his right in tenancy."

5. The perusal of the aforementioned section 12 of the Act would show that the person to whom a property is transferred in recognition of his superior pre‑emptive right, must possess any of the aforesaid qualifications to retain the property as against a plaintiff‑pre‑emptor. However, unfortunately for defendant No. 2, he did not possess any, such pre‑emptive right. His only defence was that he had purchased the suit land for construction of a house. The plea of purchase of land for construction of a house does not find any mention in section 12 of the Act.

6. Actually, the defendant No. 2 was taking protection under clause (c) of section 5 of the Act, which is also reproduced as under for the sake of better understanding of this case:- Section 5.--‑"No right of pre‑emption shall exist in respect of the sale of, or the foreclosure of, a right to redeem :‑ (c) agricultural land or village immovable .property, consisting of an area measuring no more than two Kanals purchased by a resident of the village in which such land is situated, where he neither owns a house nor a vacant site measuring more than one Kanal, for constructing a house for his own occupation." It shall thus be seen that by any stretch of imagination the defendant No. could not extend his plea of purchase of this land for construction of a hour g to any pre‑emptive right equal to or superior than the plaintiff.

7. The purchase of a land by one person and then its transfer to any other person immediately thereafter, and before the institution of the suit for pre‑emption would, naturally, mean that such vendee had transferred the suit land to that other person in recognition of his superior pre‑emptive right and also to defeat the pre‑emption suit of any person who may wish to pre‑empt the land. However, in this case, the pleadings of the parties and evidence produced in the case, do not establish any superior pre‑emptive right of defendant No.

2. He was, however, not entitled to retain the suit land as against the plaintiff. The transfer, in his favour, has no effect on the superior pre‑emptive right of the plaintiff: He could also not claim exemption from pre‑emption for this transaction. Bath the learned lower Courts have not been able to follow the correct purport of the provisions of the Preemption Act in this respect. Both these issues decided accordingly. Issue No. 3.‑--As the transaction in favour of defendant No. 2 was not genuine and he also could not claim any superior pre‑emptive right against the plaintiff, hence there is no question of payment of, or fixation of sale amount at Rs. 10,

500. Moreover, from the evidence recorded in this case, this transaction also appears to be a fake transaction which has only been resorted to defeat the suit of the plaintiff. The plaintiff is not bound by this transfer. His suit has to be decided on the basis of the sale mutation No. 3767 and not on the sale‑deed No.

197. According to the sale‑mutation, the sale price is Rs. 1728.40. There is neither any privity of contract by operation of law or otherwise between the plaintiff and defendant No. 2, nor the former is bound by any transaction between the latter and the defendant No: 1, hence the plaintiff is neither legally bound to pay the sale price of Rs. 10,500 nor this price was fixed in good faith. The second transaction, having fallen to ground, the plaintiff is bound to pay only the sale price which is mentioned in the sale‑mutation No. 3767. This issue is decided accordingly. Issue No. 5.‑‑According to 5 years average, as culculated by the Patwari (P. W. 1), the market value of the suit land comes to Rs. 4,664.55. However, the sale, mutation mentions the price as Rs. 1,728.40. The defendant No. 1 has not produced any evidence to show that he bad paid any sale consideration to the vender Shah Sawar, who happens to be his own sons. On the contrary, the defendant No. 1 has produced evidence which shows that he had paid no price to his son. This issue is also decided accordingly, by holding that the market value of the suit land is Rs. 4,664.55.

8. Relief.‑--As a result of my findings on the above issues, I hereby accept this revision petition, set aside the judgments of both the learned lower Courts and grant a decree in favour of the plaintiff against the defendants for possession of the suit land on payment of Rs. 1,728.40, as sale price of the suit land. The plaintiff shall deposit the remaining sale amount in the trial Court within one month from today, failing which his suit shall stand dismissed. He is also entitled to costs throughout. M. Y. H. Revision petition accepted.