P L D 1979 Peshawar 4 (PLP)

D. M. Kamil for Petitioner No.

1. Abdus Samad Khan for Respondent. Date of hearing : 14th October, 1978. Briefly, the facts giving rise to this revision application are that the plaintiffs and vendor Fazal Haq were co-sharers in the suit land measuring one kanal comprised in Khasra Nos. 1610 and 1618 in the area of village Hund, Tehsil Swabi. The defendant/respondent purchased the suit land from Fazal Haq for constructing a house thereupon. The plaintiffs pre-empted the sale transaction. The learned trial Judge dismissed the suit of the plaintiffs on the ground that as the defendant/respondent owns a house of less than one kanal in the village, he is exempt from pre-emption under section 5 (c) of the N.-W. F. P. Pre-emption Act, 1950, vide his judgment dated 15-10-1976. On appeal filed before him by the plaintiffs, the learned Additional District Judge concurred in the judgment of the learned trial Judge and dismissed the appeal, vide his judgment dated 28-1-1978. Hence the present revision application. I have heard the learned counsel for the parties and perused the record. It is not disputed that the defendant/respondent had purchased the suit land from the joint property in the ownership of the petitioners and the vendor. Further, the names of the plaintiffs/petitioners, as regards Khasra No. 1618 are entered in the column of cultivation, as would be clear from the Jamabandi for the year 1954-55 (Exh. P. W. 1/1). The impugned judgments would show that the Courts below have not adverted to this aspect of the case. The question, therefore, would be whether in a case of this nature, the impugned sale transaction would be illegal ab initio? If the answer to this question is found in the affirmative, the defendant/respondent cannot seek protection under the N.-W. F. P. Pre-emption Act that he is exempt from pre-emption. Now it is well-settled that unless a joint land as in the present case is partitioned, a co-sharer cannot claim exclusive ownership of a certain area in the said land. The law is so clear on the point in a case of this nature that a co-sharer, without the consent of other co-sharers, is even A prohibited to raise structure upon any area in the joint land. This being the legal position, it would be obvious that the impugned sale transaction is ineffectual and of no legal effect. The learned counsel for the respondent argued that as his client owns a house of 6 marlas in the village abadi, his purchase of the suit land for the purpose of constructing a house there upon cannot, therefore, be pre-empted. I have already answered this question above. It may be observed, however, that it is not envisaged in the pre-emption law that if a person who has no house of his own or he) owns a house less than one kanal in the village, his purchase of land for the B purpose of constructing a house thereupon can be exempted from pre-emption even if the sale transaction is found illegal. True, the object of pre-emp tion law is to provide a house to a homeless person or if he owns a small house in a locality not suitable for habitation, he can, in order to obviate his inconvenience on account of the congestion of his family, purchase the prescribed area of land for building a house upon it. But he is duty bound to see that the land purchased by him is exclusively owned by the vendee and no other person has in it any interest. 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 for pre-emption. The result of this discussion is that this revision application succeeds. Consequently, I set aside the impugned judgments of the two Courts below and hold that as the sale transaction in the present case is illegal, the respondent cannot claim protection under the pre-emption law that he is exempt from pre-emption. Under the circumstances, however, there would be no order as to costs. , S. A. H. Revision allowed.