P L D 1954 Peshawar 35 (PLP)

MUHAMMAD SHAFI, J.‑By a registered sale‑deed dated 12th May 1952, Sher Ahmad, son of Faizullah, sold 5 kanals 5 marlas of land, in favour of Mir Abdullah, Said Alam and Kala, of Bain Nura, in lieu of the ostensible price of Rs. 4,

400. This sale gave rise to a pre‑emption suit by Mst. Ghulam Janat, who alleged that she had a preferential right of pre‑emption on account of the reason that her land was situated adjacent to the land in dispute, and also that her land and the land in suit bad common way and irrigation channel She claimed that the property had in fact been sold for Rs. 800, and not for Rs. 4,

400. The vendees resisted the suit inter alia on the ground that they were the residents of Salhad village, where the property in suit was situated, and that they had purchased it for constructing houses thereupon for their occupation. They further contended that the consideration mentioned in the deed actually changed hands between the vendor and the vendees. The learned Senior Sub‑Judge Hazara, by his order dated 6th August 1953, found that the defendants were the residents of Salhad and that they had purchased the hand in dispute for constructing residential houses and therefore no right of pre-emption existed in respect of this sale under section 5 (c) of the N. W.F.P suit but in view of the peculiar circumstances of the case he directed the parties to bear their own costs. There was an appeal against this order, which was accepted by the District judge Hazara, who granted plaintiff a decree for possession by pre‑emption of the suit land on payment of Rs. 2,

531. The vendees have come up in revision to this Court, and the only point, which has been argued before me is that no right of pre‑emption exists in respect of this sale, because it is the sale of the agricultural land, consisting of an area measuring not more than 2 kanals purchased by one single resident of the village, in which this land is situated, and where he neither owns a house nor a vacant site more than one kanal for constructing a house for his own occupation. The three vendees, who are very closely related inter se are the milk‑sellers. They are the original residents of Bain Nura. According to the evidence produced by the defendant‑vendees they have left their home village since about 22 years, and have taken up residence in Salhad, where they keep their cattle as well as their families in the cattle‑sheds belonging to one Fazal Ahmad. In support of their case they produced Kala, the lambardar, and Mir Zaman, the chowkidar of village Bain Nura, as well as Karam Khan, Mahmud Khan and Sher Ahmad of Salhad into the witness‑box. . All of them stated that the three defendants have permanently given up their residence in their home‑village and have migrated to Salhad, where they keep their cattle and sell milk. The evidence produced by the plaintiff also lends support to the defendant's case. Karam Khan (P. W. 2) on cross‑examina tion admitted that the defendants stayed in the cattle‑sheds of his villagers, meaning thereby the villagers of Salhad, when they went there to sell milk. He admitted that they kept their cattle in those cattle‑sheds and that they stayed there in order to look after their cattle. Kala Khan (P. W. 3) also admitted on cross‑examination that the defendants lived in the cattle‑sheds of one Fazal Ahmad since the last 4‑5 years, and that they resided there along with their families and their cattle. Malik Ali Khan (P. W. 4), like the two previous witnesses, admitted that the defendant‑vendees had been living in the cattle‑sheds in their village along with their families. Basbir Ahmad (P. W. 5), the Patwari, stated that the defendant‑vendees were not residing in village Bain Nura, and were living in village Salbad. The perusal of the evidence produced by the parties, thus leaves no room to doubt the correctness of the defendants' case, that they have left their residence permanently in Bain Nura, and have taken up abode in Salhad. They can, therefore, safely be said to be the residents of Salhad, where the property sold is situated. In the sale deed it is mentioned that that the property has been purchased by the three vendees for the purpose of constructing residential houses. Malik Ali Khan (P. W. 4) also admitted in his evidence that the defendants have stored building material on the land in suit since about 2‑3 months. Said Alain defendant appeared into the witness‑box and stated on solemn affirmation that the land has been purchased by him and his co-vendees for constructing their houses, and that they have dumped stones etc., for that purpose on the site. The recital in the deed, the admission of one of the plaintiff's own witnesses that the building material has been stored on the land in suit, and the state ment of Said Alam defendant‑vendee, in the absence of any evidence to the contrary, lead me to the irresistible conclusion that the defendant's case that the land has been purchased for con structing houses thereupon is correct. The result of the above discussion, then, is that the defendant- vendees are the residents of village Salhad, and that they have purchased 5 kanals 5 marlas of land for the purpose of construct ing the houses for their occupation. The next question and the difficult one is if such a sale is covered by section 5 (e) of the N. W. F. P. Pre‑emption Act, 1950. Under this provision of law no doubt only two kanals of land purchased by a resident of the village is exempt from pre emption, but then this two kanals of land is meant only for one resident of the village. The three residents of the village natur ally can have 6 kanals of land, two kanals for each, for construc ting the houses. The learned counsel for the respondents has argued that the sale for the purpose of pre‑emption is indivisible, and, therefore, it is not correct to split up the sale in question in three parts, and say that each part is covered by section (5) (e) of the N. W. F. P. Pre‑emption Act, and, therefore, exempt from pre‑emption. I am afraid, I cannot agree with this contention. If one person by one single deed can purchase two kanals of land for construct ing a house for his occupation with amenity, three persons by one single deed can surely purchase 6 kanals of land for constructing three different houses for the same purpose and with the same amenity. It will be extremely ridiculous to say that simply because three persons have not had the sale made in their favour by three different deeds, the benefit of section 5 (e) of the Act should not be extended to them. The law of pre‑emption invades the rights of a person to enter into a contract in respect of his property in any way and with whomsoever he likes, and it must, therefore, in equity and justice be interpreted in favour of and not against the vendees, provided the transaction is otherwise genuine and not fraudulent. The law, if it has to be stretched at all, it should in all fairness be stretched in favour of the vendees and not in favour of the pre‑emptor. I am consequently of the opinion that the sale now in dispute is covered by section 5 (c) of the N. W. F. P. Pre‑emption Act, and the plaintiff's suit must, therefore, fail. The result is that I accept the revision petition, set aside the judgment and decree of the learned lower appellate Court; and restore those of the learned trial Court, but considering the difficult question of law involved in the case, I leave the parties to bear their own costs throughout. Orders announced. A. H. Petition accepted.