1989 PLP 371 (SCMR)

Maulvi Siraj‑ul‑Haq, Advocate Supreme Court and Ch. Ghulam Mujtaba, Advocate‑on‑Record for Appellant. S. Inayat Hussain, Advocate‑on‑Record for Respondent. Date of hearing: 12th October, 1988. SAAD SAOOD JAN, J.‑‑This appeal by special leave arises out of a pre emption suit. It was dismissed by the trial Court but in first appeal it was decreed by the Additional District Judge, Gujrat. In second appeal, the High Court maintained the decree of the first appellate Court.

2. The dispute between the parties relates to agricultural land, measuring 32 Kanals and 1 Marla, situate in village Nanwan Lundpur of Tehsil Gujrat. It was owned by Khushi Muhammad. On a part of the land he had installed a tube well and erected a Kotha. By a deed dated 11‑10‑1963 he sold the Kotha, the tube‑well and the crop standing in the land to the appellant. Two days later, that is on 13‑10‑1963, he sold the entire land to the appellant by a registered deed. On 13‑10‑1964, the respondent filed a suit for pre‑emption in respect of the sale effected by the deed of 13‑10‑1963 alone. He founded his superior right on the assertion that he was an owner in the estate while the appellant was a stranger therein. The suit was resisted by the appellant on a number of grounds. He alleged that as the respondent had failed to seek relief with regard to the transaction of 11‑10‑1963, the suit was bad on account of being one for partial pre‑emption. He claimed that by purchasing the tube‑well and the Kotha which were immovable properties he too had become an owner in the estate and as such the right claimed by the respondent was not superior to that of his. He also averred that the respondent had waived his right.

3. It does not appear from the record that the appellant pressed his plea of partial pre‑emption before the trial Court. No issue was framed in respect of this plea nor did the trial Court record any finding thereon. As regards his assertion that the respondent had waived his right, the learned trial Court found merit in it and on this ground alone dismissed the suit.

4. From the judgment of the trial Court the respondent filed an appeal before the Additional District Judge. While defending the judgment of the trial Court the appellant revived his plea of partial pre‑emption. The learned Additional District Judge rejected it and also found that waiver had not been established; accordingly, he accepted the appeal and decreed the suit of the respondent. The appellant filed a second appeal in the High Court but it was dismissed.

5. In support of this appeal the learned counsel for the appellant has challenged the right of pre‑emption claimed by the respondent. His case is that by purchasing the Kotha and the tube‑well by the transaction of 11‑10‑1963 the appellant too had become an owner in the estate; consequently, as the respondent had not pre‑empted the transaction of 11‑10‑1963, he could not claim preferential right to acquire the land in dispute on the basis of being a mere owner in the estate. This contention is clearly misconceived. As already noticed, there were two transactions between Khushi Muhammad, the former owner, and the appellant. The first transaction related to the sale of the tube‑well and the Kotha and the second one was in respect of the land. There was an interval of two days between the two transactions. The second transaction admittedly included the sites of the Kotha and the tube‑well also. There was no mention in the sale‑deed executed on 13‑10‑1963 that sites of the Kotha and the tube‑well already stood T, sold to the appellant. Considering the time log between the two transactions it seems reasonable to infer that what was being transferred by the transaction of 11‑10‑1963 was the superstructure of the Kotha and the machinery of the tube well and not the sites on which they were located. This inference finds support A from the fact that although the deed with regard to the sale of the land was got duly registered by the parties, this exercise was not carried out in respect of the sale‑deed relating to the Kotha and the tube‑well. Quite obviously, the parties to the deed did not regard the first transaction as one affecting immovable property. In the circumstances, the, claim of the appellant that by purchasing the Kotha and the tube‑well he too had become a co‑owner in the estate is not well‑founded anal was rightly rejected by the Courts below.

6. It is then contended by the learned counsel for the appellant that the failure of the respondent to pre‑empt the sale of the Kotha and the tube‑well made his suit one for partial pre‑emption and for that reason it should have been dismissed. This contention is also without any merit. Apart from the fact that the said transaction did not affect rights in immovable property and was for that reason not pre‑emptible, it was an independent deal. It was not therefore, necessary for the respondent to seek relief with regard to this transaction as well while exercising his right of pre‑emption in respect of the sale of land.

7. For the reasons stated above, we find no merit in this appeal which is hereby dismissed. There will be no order as to costs. MA.K./M‑640/S Appeal dismissed.