1987 PLP 2413 (MLD)

Qasim Khan v. Nawaz Khan etc. 1985 S C M R 926 ref. Mir Adam Khan for Petitioners. Moeenuddin Khan for Respondent. Date of hearing: 13th March, 1984. Salim Khan and others purchased the suit land per mutation No.12069 attested on 27-4-1976 for a sum of Rs.1,600 and the sale was pre-empted by Muhammad Ayub Khan. The suit was decreed on payment of Rs.1051.45. The appeal of the vendees failed and they have now come on revision to this Court.

2. The petitioners had claimed to have purchased the suit land for construction of house and their plea was reflected in issue No.3 which was answered in the negative by both the learned Courts below. The learned lower Court was of the view that since the petitioners had considerable agricultural land in the village they could not claim exemption from pre-emption under section 5(c) of the Pre emption Act. The learned appellate Court, however, took a different view of the matter and remarked that "the exemption contemplated by section 5(c) is not legally available to the vendees as they have purchased a share out of joint property and the suit land was not exclusively owned by the vendor." It referred to the following observation made in Habibur Rehman and Another v. Faqir Muhammad (P L D 1979 Pesh. 4):

"Since in the present case the defendant/ respondent has purchased the suit land in which the plaintiffs/ petitioners have interest as co-sharers, he cannot come forward to seek protection under the Pre-emption Law that he is exempt from pre-emption. "

3. The learned counsel for the petitioners contended that the learned lower Court had gravely erred in rejecting the plea of exemption from pre-emption raised by them on the ground that they had considerable agricultural land in the village. The petitioner Salim Khan (DW.1) had disclosed that they had a house of their own measuring 10-12 marlas in occupation of six brothers and admitted that they had about 400 kanals of land at a distance of 2 to 6 miles from the village. Their house was located in the land measuring 79 kanals but they had purchased the suit land for construction of a house because it was near the pond and they had to fetch water which was available at a distance of 3-4 miles. The mere fact that) they owned agricultural land near or away from the village would not disentitle them to claim exemption. It is in Muhammad Hassan v. Zafar All Khan and others (P L D 1962 Peshawar 199) that the term 'vacant site' in section 5(c) of Pre-emption Act is wide enough to include agricultural land even if that is not situated on the outskirts of the village. It is only the intention of the vendee which is material and if he is the resident of the village and had purchased agricultural land at a considerable distance from the village for the construction of a house the sale is not pre-emptible. There is nothing on the record to indicate that the petitioners owned a house or a vacant site measuring 1 kanal in the village. The view of the learned lower Court is obviously an erroneous one and the plea should not have been discarded on the ground that they had sufficient agricultural land in the village.

4. The petitioners had purchased 23/144 share in joint land measuring 24 kanals 9 marlas and it led the learned appellate Court to reject their plea on the strength of the observation made in Habibur Rehman's case and reproduced above. It may be pointed out that this reported judgment was set aside by the Supreme Court and the case was remanded. The matter was decided afresh and the same view expressed previously was adhered to in Habibur Rehman and another v. Faqir Muhammad (PLD 1983 Peshawar 197) wherein it is inter alia observed that a vendee of a share of a co-owner would step into the shoes of the co-sharer but he had no right to choose any area in joint land for construction of a house and the doctrine of exemption should not be construed in his favour unless he shows that the purchase was free from any possible encumbrance in any form. It is true that the petitioners had purchased share in the joint land and had stepped into the shoes of the co-sharer but it is equally true that they would be entitled to seek partition of their share. It would in this context be profitable to refer to the following observation made in Qasim Khan v. Nawaz Khan etc. (1985 S C M R 926):

"The vendee-respondents had become co-sharers with the other owners in the khasra numbers in dispute and they could, therefore, get their shares separated through partition and since the area purchased was not more than two kanals and it has been concurrently held by all the Courts that the vendees had purchased the land for constructing houses, the sale was, therefore, exempt from pre-emption." It is manifest that a vendee of a portion of the joint land could claim exemption under section 5(c) of the Pre-emption Act. It appears that the law laid down by the Supreme Court was not brought to the notice of the Court which decided Habibur Rehman's case. I am, therefore, of the view that in the light of the law laid down in Qasim Khan's case the view of the learned appellate Court cannot be sustained. The vendees who had purchased a portion of the land for construction of a house were entitled to the statutory protection and once the pre-emption suit is disposed of they would be competent to move the proper forum for partition of their shares by metes and bounds in the joint land and then build a house in it. In the result, I would accept the revision petition, set aside the judgments and decrees of both the learned Courts below and dismiss the suit of the respondent. The parties are; however, left to bear their own costs. M.B.A./267/P Petition accepted.