2009 PLP 2282 (YLR)
Haji SHER DARAZ KHAN — Petitioner Versus REHMZAD KHAN and 4 others — Respondents
| Citation | 2009 PLP 2282 (YLR) |
| Forum / Court | Peshawar |
| Bench Members | Syed Yahya Zahid Gilani, J |
| Parties | Haji SHER DARAZ KHAN — Petitioner Versus REHMZAD KHAN and 4 others — Respondents |
| Primary Law | North-West Frontier Province Pre-emption Act (X of 1987) |
Q1: What are the key laws and sections cited in 2009 PLP 2282 (YLR)?
This judgment primarily cites: North-West Frontier Province Pre-emption Act (X of 1987) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2009 PLP 2282 (YLR)?
The case was heard and decided by the Peshawar bench comprising: Syed Yahya Zahid Gilani, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2009 PLP 2282 (YLR) (Haji SHER DARAZ KHAN — Petitioner Versus REHMZAD KHAN and 4 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Muhammad Waheed Anjum for Petitioner.
- Khawaja Nawaz Khan for Respondents.
- Date of hearing: 26th June, 2009.
Headnotes / Summary
Ss.6 & 13
Half of the suit-land was decreed by the Trial Court in favour of pre-emptor because both the pre-emptor and the vendee were held to be contiguous owners
Appellate Court, however dismissed the suit solely on the ground that the pre-emptor was not in possession of the contiguous Khasra number
AKS Shajra Kishtwar had revealed that Specific/Suit Khasra in Khata was the suit Khasra number
Vendee/ defendant owned another khasra which was adjacent to suit Khasra number
Plaintiff owned two different khasras which were adjacent inter se in one block and out of those two one was contiguous to suit Khasra
Appellate Court misunderstood the law and wrongly found that plaintiff being owner of the Khasra which was adjacent to suit Khasra, had succeeded in proving his right of pre-emption and was rightly granted/decreed half of the suit-land by the Trial Court because he and the vendee both had equal rights of pre-emption
Impugned judgment and decree of the Appellate Court whereby the plaintiff was non-suited, was set aside and that of the Trial Court was restored.
Judgment & Decree
SYED YAHYA ZAHID GILANI, J.
Half of the suit-land was decreed by the trial Court vide judgment and decree dated 23-10-2002 in favour of the pre-emptor because both the pre-emptor and vendee were held contiguous owners.
2. The Court of appeal dismissed the suit solely on the ground that the pre-emptor is not in possession of the contiguous Khasra number.
3. The revision petition-in-hand was admitted to consider the point that whether possession in the adjacent Khasra number is a condition precedent for the success of pre-emption suit if the right of pre-emption is based on contiguous ownership.
4. I have heard learned counsel for the parties on the aforementioned moot point which was admittedly the only point involved for determination.
5. Record has been thoroughly thrashed out with full concentration on Aks Shajra Kishtwar, copy Exh. P.W.4/2. It reveals that Khasra No. 740 in Khata No.234/584 is the suit Khasra number. The vendee/defendant owns Khasra No. 751 which is adjacent to Khasra No.
740. Similarly, the pre-emptor owns two Khasra Nos. 722 and 723 in Khata No. 20/50 which are adjacent inter se and in one block, and out of these two, only Khasra No.722 is contiguous to suit Khasra No.740. The Court of appeal has non-suited the pre-emptor simply on the ground that although he is in possession of Khasra No.723 (owned by him) but not in possession of Khasra No. 722 (also owned by him) which really touches the boundary of Khasra No. 740.
6. If we go through explanation (iii) of section 6 of the N.-W.F.P. Pre-emption Act, 1987, it clearly mentions that right of pre-emption based on contiguity is because of ownership pf adjacent land and not at all because of "possession" of the adjacent land, or for that matter, "ownership with possession." There is no mention or reference of possession in the aforesaid clause. Therefore, the learned Court of appeal misinterpreted and misapplied law while holding that the pre-emptor, who claims to be `Shafi-e-Jar' should not only own the adjacent land but also possess it. This view of the matter is erroneous and not in accordance with law. 6-A. I, therefore, hold that the learned counsel of appeal misunderstood the law and wrongly applied it. The pre-emptor herein being owner in Khasra No. 722 which is adjacent to suit. Khasra No. 740, has succeeded to prove his right of pre-emption as `Shafi-e-Jar' and he was rightly, granted decree of half of the suit-land by the trial Court because he and the vendee1 both had equal rights of pre-emption.
7. The revision petition is, therefore, accepted. The impugned judgment and decree of the learned appellate Court is set aside and that of learned trial Court is resorted. If the pre-emptor had not deposited the remaining pre-emption money as per direction of the trial Court, shall deposit the same within next two months, failing which, his suit shall be deemed to have been dismissed. The parties are left to bear their own costs. H.B.T./167/P Petition accepted.