1997SCMR464 (PLP)

SH. RIAZ AHMAD, J.‑ Facts giving rise to the institution of this petition seeking leave to appeal are enumerated as hereunder:‑‑ One Abid Hussain alienated his disputed land through sale in favour of the petitioner Hidayet Khan, and a mutation to this effect was also recorded and attested. On 17th of. July, 1973 respondent Gulab Shah instituted a suit for possession through pre‑emption against the petitioner‑vendee. Respondent in his suit pleaded and contended that he had a superior right to pre‑empt the sale on the ground of being a collateral. Precisely, he pleaded in the plaint that he was maternal grandfather of the vendor. Suit was resisted by the petitioner‑vendor, and the following issues were framed: (1) Whether the plaintiff has superior right of pre‑emption? OPP (2) Whether the ostensible sale price of Rs.4,000 including the mortgage charge was fixed in good faith or actually paid? OPD (3) Market value? OP Parties. (3‑A) Whether the suit is correctly valued for the purposes of court‑fee and jurisdiction? OPP (4) Relief.

2. The learned Civil Judge, Tala Gang found issue No. l in favour of plaintiff‑pre‑emptor, and held that he had a superior right of pre‑emption. Aggrieved by the said judgment and decree, an appeal was taken by present petitioner before the learned District Judge, Campbellpur, who vide his judgment, dated 20th of September, 1976 reversed the finding on Issue No. 1, and consequently, the appeal preferred by petitioner was allowed. The said judgment and decree was challenged in the Lahore High Court at Rawalpindi Bench by way of filing R.S.A. No.957 of 1976, and the learned Single Judge of the Lahore High Court vide his judgment dated 23‑4‑1995 reversed the finding of the First Appellate Court on Issue No. 1, and thus, the judgment and decree of the trial Court was restored.

3. Petitioner Hidayat Khan now seeks leave to appeal against the judgment delivered by a learned Single Judge of the Lahore High Court dated 23‑4‑1995.

4. In support of this petition it has been contended that the petitioner and not the respondent‑plaintiff had the superior right to pre‑empt the sale. Precisely, it was contended that the petitioner being a tenant, which status he proved on record by producing certain Khasra Girdawari, had the superior; right to pre‑empt the sale in preference of all others in view of the provisions of the Land Reforms Regulations (M.L.R. 115). The attention of this Court was drawn to the aforesaid Land Reforms Regulation to contend that even the provision of section 15 of the Pre‑emption Act, 1913, under which, a collateral can claim his superior right stood overridden by virtue of the provision of the Land Reforms Regulations (M.L.R. 115). It was also pointed out that the petitioner in his written statement had denied the superior right to pre‑empt the sale vesting in the respondent. It was also contended at the Bar that the High Court as well as the learned Civil Judge had erred in law by not adverting to the relevant provisions of the Land Reforms Regulations (M.L.R. 115) conferring the superior right to pre‑empt the sale on a tenant.

5. After having heard the learned counsel at length, and having perused the relevant provisions of M.L.R. 115, Land Reforms Regulations we are of the view that it is a fit case for the grant of leave to appeal Order accordingly. A.A./H‑255/S Leave granted.