2004 PLP 1770 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Abdul Hakeem and others seek, through this petition, review of our judgment dated 26-5-2003 whereby this Court had refused to giant leave in Civil Petitions for Leave to Appeals Nos.472/P and 473/P of 2002; latter on the ground of limitation and the former on merit.

2. Khalid Wazir, respondent had succeeded in obtaining a decree for possession through pre-emption against Abdul Hakeem etc., the petitioners, from Civil Judge, Banda Daud Shah on 19-9-1998 which was maintained up to the High Court. The vendees brought a review petition before the High Court against its judgment in revision dated 14-12-2001 which was refused and hence the aforesaid petitions for leave to appeal were filed.

3. The only contention of the vendees before the High Court in review petition and before this Court in petitions for leave to appeal was, that the vendees possessed equal right of pre-emption along with the pre emptor and thus, under section 20 of N.-W.F.P. Pre-emption Act, 1987, the property was to be shared by both equally. That such equal right of pre-emption of the parties was clearly proved before the trial Court.

4. This Court while making an elaborate discussion in paras. Nos.4 and 5 of nee judgment under review, had categorically held that e where the pre-emptor and the vendee fall within the, same class of the pre-emptors and have equal right of pre-emption, the property shall be shared by them equally. It was further held that it was duty of the Court to give such decision under section 20 of the Act printed the evidence on record was supportive of the equal rights of the parties regardless of whether the vendee had taken specific plea to that effect or not because most of the times the vendees simply take the plea that the pre-emptor has no superior right of pre-emption. While taking such view the leave was refused on the ground, taken simultaneously, that though the vendee had equal right of pre-emption yet the fact could not be alleged in review before the High Court because the plea was not taken, before the lower Courts.

5. The aforesaid two conclusions drawn simultaneously appear toy be the outcome of banking upon a hyper technicality, with the consequence that both the views became destructive of each other. We are morally as well as legally convinced that this by itself is a sufficient ground for review of the judgment.

6. Learned counsel for the respondent resisted the review petition saying that the vendees had no equal right of pre-emption with the pre emptor and hence the review would not be justified. This stance is not tenable on the ground; firstly that we had already held in the judgment under review that both the parties have equal right of pre-emption and secondly, that this view is fully supported by the then existing `Jamabandi' of 1993-94. If we strictly go by the existing `Jamabandi' of the time of sale, we are afraid, even the name of pre-emptor Khalid Wazir is not mentioned in the column of ownership. The fact is that Khalid Wazir had become owner through Mutation No. 694 (alongwith the vendees) on 27-8-1997. Vendees Ahmed Kareem, Abdul Hakeem, Sultan Ahmed and Muhammad Zafar Yab had already been shown as owners in the `Jamabandi' while Abdul Wahid and Abdul Khaliq had become owners through inheritance Mutation No.619 attested on 8-5-1995, prior to the sale in dispute of 1997.

7. It is proved on record, as already held in the judgment under review, that both the parties are co-sharer in the property belonging toy the same class of pre-emptors and hence are entitled to share the property equally. Consequently, by reviewing the judgment, dated 26-5-2003 of this Court (reported as 2003 SCMR 1501), Civil Petition No.472/P of 2002, is hereby accepted and Khalid Wazir pre-emptor is granted a decree for possession through pre-emption of half of the property to dispute on payment of half of the amount of consideration determined by the trial Court. No order as to costs. S.A.K./A-72/S Review accepted.