1980 PLP 525 (SCMR)

Muhammad Latif, Advocate and M. Qasim Imam, Advocate‑on- Record for Petitioner. Nemo for Respondents. Date of hearing : 22nd October 15179. DORAE PATEL, J.‑The dispute in this petition for leave relates to Khasra Nos. 171 and 176 in village Sardarwala, Tehsil and District Dera Ismail Khan and the land, which measured about 185 kanals, had been mortgaged at the relevant time with the sixth respondent. Sometime thereafter the entire land was sold to respondents 3, 4 and 5 in this petition vide mutation No. 31 dated 17‑10‑1973. ‑Therefore, the petitioner filed a suit to pre‑empt this sale in the Court of the Senior Civil Judge, Dera Ismail Khan on 1‑1‑1974 and both the suits were consolidated by the learned Senior Civil Judge who by his judgment dated 27‑10‑1975 held that the petitioner as well as the first two respondents were entitled, on the basis of contiguity, to pre‑empt the sale of Khasra No. 171, therefore, he granted a decree both to the petitioner and to the said respondents for this Khasra number only, and as to the claim for pre‑empting the sale of Khasra No. 176, only the second respondent was granted a decree. This judgment was challenged in the District Court both by the petitioners and by the vendees. But learned counsel pointed out that during the pendency of these proceedings the second respondent stated that he did not wish to press his claim and withdrew from the proceedings. The learned Additional District Judge, who heard these appeals, upheld the trial Court's decree about Khasra No.

171. But he set aside the decree about Khasra No. 171, because he held that the vendees also owned land contiguous to Khasra No. 176 at the time of their purchase, therefore, he dismissed the suits for pre‑emp tion against this khasra. Only the petitioner challenged this judgment of the learned Additional District Judge in a revision in. the Peshawar High Court, but as this revision was dismissed on 12‑2‑1977, he had filed this petition for leave. We would first examine the submission advanced by Mr. Abdul Latif about Khasra No.

171. As we pointed out, the Courts were of the view that the petitioner as well as the first two respondents were equally entitled to pre‑empt the sale of this Khasra number therefore, half of this Khasra number had been decreed in the petitioner's favour whilst the other half had been decreed in favour of the first two respondents. Now, according to learned counsel, although the first two respondents were entitled to pre‑empt the sale, the second respondent had a higher right of pre‑emption as he owned land contiguous both to Khasra Nos. 171 and 176, and therefore, this respondent had been collusively joined by the first respon dent with him in his suit. But, as the second respondent had abandoned his claim, the submission was that the first respondent had lost his right to pre‑empt the sale in view of section 18 of the North‑West Frontier Province Pre‑emption Act. As learned counsel did not go to the length of submitting that the first respondent had no right to pre‑empt the sale, it is the second part of section 18 which is relevant and it reads: ‑ "...and where a pre‑emptor of a higher class sues jointly with a pre emptor of a lower class, he shall have no higher right than the person with whom so sues." Even on the footing that the second respondent had a higher right of pre‑emption than the first respondent, there is nothing in this clause to support learned counsel's submission that the first respondent was deprived of his right to pre‑empt the sale in dispute, merely because the other respondent had abandoned his claim. Therefore, there is no merit) in this submission. Next, as to Khasra No. 176, the first appellate Court had agreed with the trial Court's finding that the petitioner was not entitled to pre empt this sale, but reversing the finding of the trial Court, it had further held that the second respondent also was not entitled to pre‑empt the sale, because the vendees also owned land contiguous to Khasra No.

176. And, therefore, the suit of the respondents was also dismissed. As the High Court dismissed the revision, the decree in favour of the vendees became final. Now according to learned counsel, all the Courts had erred in law in rejecting the petitioner's claim to pre‑empt this sale, but learned counsel admitted that the vendees had owned land contiguous to Khasra number

176. Now, according to learned counsel, after the suit filed by the petitioner, but before the suit filed by the first two respon dents, the holding in which the vendees had a share was partitioned with the result that they had ceased to own land contiguous to Khasrs No.

176. And, as they had ceased to own land contiguous to Khasra No. 176 before the decrees of the Courts had become final in their favour, the submission was that the petitioner was entitled to pre‑empt the sale. The contention that the vendees had ceased town land contiguous to Khasra No. 176 before the decree in their favour became final has absolutely no relevance to the provisions of .the North‑West Frontier Province Pre emption Act‑ But, as learned counsel placed reliance on section 16 of the North‑West Frontier Province Pre‑emption Act as it stood at the rele vant time we may point out that as clarified by the heading of this section it deals only with the "effect of loss of right by pre‑emptor prior to, decree." This section has no relevance to alienation by the vendees therefore, this submission too is without merit. This petition is without merit. This petition is without merit and is dismissed. Petition dismissed