Right of Pre-emption

Petitioner / vendee was aggrieved of judgment and decree passed by Lower Appellate Court as well as High Court whereby suit was decreed in favour of respondent / pre-emptor

Validity

Use of word immediate is significant and cannot be undermined

Delay of two hours in making demand of Talb-i-Muwathibat is not an immediate demand and such delay is fatal to a successful claim of pre-emption

Right of pre-emption is a unique and a fragile right

Unlike many other rights bestowed by law, exercise of right of pre-emption depends entirely on timely making of various demands set out in section 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987

Making of Talb-i-Muwathibat, under section 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987 is the foundation on which making of Talb-i-Ishhad and Talb-i-Khusumat is based

Timelines and conditions for making of Talb-i-Ishhad and Talb-i-Khusumat provided in sections 13(3) and 13(4) of Khyber Pakhtunkhwa Pre-emption Act, 1987 depend entirely upon making of Talb-i-Muwathibat

Date, time and place of making such demand is pivotal and foundational to the exercise of right of pre-emption, the importance of which cannot be over-looked

Person (postman) who allegedly served registered post A.D. upon deceased petitioner / vendee was not produced in witness box, when it was essential to bring him in the witness box, especially when receipt of the same was denied, so as to prove and determine the fact that he actually served registered post A.D. upon deceased petitioner / vendee

Service upon addressee was not proved by respondent / pre-emptor

Supreme Court set aside judgments and decrees passed by Lower Appellate Court and High Court and restored that of Trial Court whereby suit filed by respondent / pre-emptor was dismissed

Appeal was allowed.

Failure of the petitioner/plaintiff to prove his right of pre-emption on the basis of ownership/title as a Shafi Sharik, Khalit or Jar

Effect

Production of site plan as proof of ownership

Validity

Pre-emptor in order to succeed has to establish such right on the day of sale, on the day of fling of suit and its continued subsistence till the date of decree

Underlying principle of law of pre-emption is that the pre-emptor has to own property before he can exercise such right

Order produced by the petitioner in evidence did not mention his name anywhere

Although in the site plan the name of the petitioner was mentioned and it described that the area shown in red belonged to the petitioner along with other shareholder, yet the said site plan was not substitute of title document

Neither any inheritance mutation was placed on record nor copy of record of rights was produced to establish that he was a co-sharer or co-owner in the suit khata from where the pre-empted property was sold

Mere admission on behalf of defence witnesses that suit property belonged to father of the petitioner and petitioner's house was situated in the suit property did not discharge the petitioner from his duty to establish independently that he was owner of the property from where pre-empted property was sold and he enjoyed the status of Shafi Sharik, Khaleet and Jar

Petitioner failed to prove his superior right of pre-emption

Civil revision was dismissed, in circumstances.

Petitioner/vendee was aggrieved of judgment and decree passed by Lower Appellate Court whereby suit was decreed in favour of respondent/pre-emptor

Validity

Record reflected that no date of Talb-i-Ishhad was mentioned in the plaint, which made it uncertain whether the same was made within two weeks as required under S.13(3) of the Act

Non-mentioning of exact time of notice of Talb-i-Ishhad in the plaint was fatal for the cause of the respondent/plaintiff

As borne out from the evidence, the fulfillment of condition of Talb-i-Ishhad, by way of service of notices, got sketchy, inter-alia, in terms of statement made by postman

Talb-i-Ishhad was to be established by way of a solid piece of evidence led by the respondent/plaintiff

Plaint did not disclose any details regarding Talb-i-Ishhad with respect to its performance, which was fatal to the case of the respondent/plaintiff

Admittedly, the petitioners/defendants were minors

Statement of post man did not mention as to where the service was made on the said minors, or it was made on anyone else on their behalf, nor was there any endorsement of refusal on the envelope or the acknowledgment due

Respondent/plaintiff admitted that the original notices were not sent

According to the statements of witnesses, the notices were written by hand

Talb-i-Ishhad or demand by establishing evidence means calling of two witnesses by pre-emptor to attest his making of the first demand/ Talb-i-Muwathibat in order to strengthen his claim of pre-emption

Mandatory upon the pre-emptor to have stated the names of witnesses for Talb-i-Ishhad in the plaint and then prove their attestation by producing them in the Court

From the perusal of the plaint, it appeared that no such disclosure had been made by the respondent/plaintiff

Said omission was again fatal to the claim of the respondent/plaintiff

Respondent/plaintiff (pre-emptor) had failed to prove performance of the essential conditions attached to the exercise of right of pre-emption

As a result, claim of pre-emption could not hold field for not having qualified the mandate of law under the Act, in terms of making of Talbs

Consequently, civil revision was allowed, accordingly.

Petitioner/vendee was aggrieved of judgment and decree passed by Lower Appellate Court whereby suit was decreed in favour of respondent/pre-emptor

Validity

As regards the first Talb i.e. Talb-i-Muwathibat, statement of pre-emptor was relevant wherein he admitted in cross-examination that he had gained knowledge of the sale after filing of the suit

Pre-emptor also admitted that he had filed another suit for pre-emption against the petitioners/defendants

Said stance of the respondent/plaintiff as to knowledge was corroborated by the informer

According to the statement of informer, the knowledge about the sale was gained about 4.5 years ago

Said statement was made by informer on 16.02.2012

Thus, if time was calculated from the date of statement, it would come around 16.07.2007, which furnished a ground to believe that no meeting was held for Talb-i-Muwathibat and it was not performed

Possession of the suit property was delivered on the date of sale, which was a notice to public at large

Hence, the pre-emptor had, for all practical purposes, gained the knowledge immediately but did not make a jumping demand

Such delay was fatal to a successful claim of pre-emption

Respondent/plaintiff (pre-emptor) had failed to prove performance of the essential conditions attached to the exercise of right of pre-emption

As a result, claim of pre-emption could not hold field for not having qualified the mandate of law under the Act, in terms of making of Talbs

Consequently, civil revision was allowed, accordingly.

Appellants had acquired the subject property against whom and the other respondents, the respondent No. 1, initiated proceedings for claiming his right of pre-emption

Said proceedings were decreed by the Trial Court which was upheld by the first appellate Court

Validity

Record showed that a witness said to have been present at the time of first Talb though had died, but the claimant of the pre-emption preferred never to bring any secondary evidence in that regard

In the cross-examination, the appellant and the seller both had stated that no first Talab was made and irrespective of the contentions raised in the written statement, which were apparently never confronted to the witness, the material in record did not show that the respondent No.1 was able to prove that the first Talb was ever made

In the said circumstances the decree of preemption was not available

Revision was allowed, in circumstances.

In other words, the right of pre-emption is to be personal to a preemptor until a decree is passed in his favour and, during that interregnum, said right is neither transferable nor in heritable

In such a situation if the preemptor dies before obtaining a decree in his favour in the Trial Court or the appellate or Revisional Court, his right of preemption shall remain exclusively personal and shall not survive to his heirs

But no sooner a decree is passed in favour of the pre-emptor than the right becomes a proprietary one and is capable of not only being transferred but also inheritable as well.

Plaintiff/pre-emptor/respondent was required to prove through documentary evidence his right of pre-emption upon the land sold in favour of the appellant/vendee/defendant

Admittedly, in column of ownership in Register Haqdaran Zameen the name of the respondent/plaintiff was mentioned in Khana Kafiyat and not in owner column in the khata wherefrom the property pre-empted was sold

Copy of Jamabandi produced for the relevant year did not contain the name of the plaintiff as co-owner in the Khata

Hence, the respondent had failed to prove his right of pre-emption on the basis of co-ownership against the appellants

Appeals were allowed and suit for possession through pre-emption filed by the plaintiff/respondent stood dismissed.

Suit filed by respondent/ plaintiff for possession of suit land through pre-emption was decreed ex parte against petitioners/defendants

Validity

Conduct of petitioners/ defendants was not only dilatory and negligent but the same was also contumacious

Petitioners/defendants failed to give any sufficient cause for not pursuing suit or for filing application for setting aside ex parte judgment and decree after considerable delay

Law helps the vigilant and not the indolent

Petitioners / defendants had been employing devious and dilatory tactics therefore, delinquency on their part was not only very much conspicuous but the same was also unexplained

High Court in exercise of Constitutional jurisdiction under Art. 199 of the Constitution, declined to interfere in the judgment and decree passed by Trial Court, as such jurisdiction was discretionary and equitable in nature

Constitutional petition was dismissed in circumstances.

Respondent/pre-emptor filed suit for possession through pre-emption which was concurrently decreed in his favour by Trial Court and Lower Appellate Court

Validity

Witness of respondent/pre-emptor neither stated that he was handed over any notice/letter to affect service upon petitioner/defendant nor served the same upon him

Respondent/pre-emptor failed to prove service of notice of Talb-i-Ishhad

Non-production of acknowledgment receipt (A.D) amounted to withholding of material evidence and such flaw had grave adverse effect on the case of respondent/pre-emptor

Witness of notice of Talb-i-Ishhad was also not produced by respondent/pre-emptor nor any explanation was furnished in that regard, which amounted to withholding of the best evidence and it would be legally presumed that had the witness been produced in evidence, he would have deposed unfavourably against respondent/pre-emptor and presumption under Art. 129(g) of Qanun-e-Shahadat, 1984, would go against him

Respondent/pre-emptor failed to prove service of notice of Talb-i-Ishhad

Both the Courts below committed misreading and non-reading of evidence and had also failed to apply correct law which rendered such dicta as not sustainable in the eyes of law

High Court under S. 115 C.P.C, had jurisdiction to interfere in perverse concurrent judgments and decrees of two lower fora

High Court in exercise of revisional jurisdiction set aside concurrent findings of facts by two Courts below and dismissed the suit filed by respondent/pre-emptor

Revision was allowed, in circumstances.

Such right is strictissimi juris (strict rule of law) and the slightest deviation from the formalities required by law will prevent its accrual.

In the present case conflicting statements of pre-emptor and his witness were found on record, thus they could not be considered as truthful to place reliance on their testimony in regard to making of Talb-e-Ishhad

Pre-emptor failed to prove due performance of Talb-e-Ishhad under the law

Impugned judgments of the two Courts below were set aside and suit of pre-emptor was dismissed leaving the parties to bear their own costs.

In a suit for pre-emption, plaintiff is required to prove his right of pre-emption at the time of sale of land, at the time of filing of suit and at the time of decree.

Attorney of the defendant appeared as a witness, who deposed that the property was gifted by vendor to the defendant, however, during his cross examination, he deposed that vendor was present in his village but he could not produce any witness of the gift

Neither the alleged donor nor the witnesses of the alleged mutation of gift were produced or called in the court for evidence

Stamp vendor appeared and verified that stamp paper in question was sold by him to the vendor for agreement to sell in favour of vendee

Defendant/vendee failed to produce important witnesses, i.e. the alleged donor and the alleged witnesses of the mutation, despite framing of specific issue by the Trial Court whether there was no transaction of sale but a gift

Suit for pre-emption filed by respondent had rightly been decreed by the courts below

Petition for leave to appeal was dismissed and leave was refused.

Death of pre-emptor did not abate the suit but the right of pre-emption being survived would devolve upon the legal heirs.

Contention on behalf of appellant that since he had purchased the shares of some of the legal heirs from the joint property, he had become- co-owner in the 'haveli' and as such had superior right of pre-emption as shafi-sharik

Held, that sales made in favour of the appellant as well as the impugned sales (under pre-emption) would show sale of specific areas with their separate specific boundaries

Contention on behalf of appellant, in the given circumstances, had no force at all

Appellant could not be termed as a co-owner of the property as all the legal heirs were in possession of their respective shares due to family settlement which amounted to private partition and the 'haveli' as such was no more a joint property

Appellant, in the given situation, had become owner to the extent of his share he had purchased with the specific boundaries and could not be termed as co-­owner in the entire property

Perusal of all sale deeds, including the impugned sales (under pre-emption) reflected that each impugned sale deed had different boundaries from the boundaries given in the sale deeds of the appellant

Such factum clearly showed that the property owned by the appellant was not adjacent/contiguous with any of the suit property, so, the appellant could not be termed as a pre­-emptor having superior right of pre-emption as shafi-jar

Appellant having failed to establish his superior right of pre-emption was rightly non-suited by the fora below

Appeals were dismissed.

Suit property was constructed and urbanized, and it had also been admitted between the parties that the suit property, as well as the property on the basis of which the plaintiff (respondent) claimed the right of pre-emption, were commercial properties having property number allocated by the Excise and Taxation Department

No benefit of Revenue Records, even if ownership of both the parties would have been recorded in the same Khewat, would be given to the plaintiff for grant of a decree of pre-emption on the basis of Shafi-e-Shareek in the light of S. 3 of Punjab Pre-emption Act, 1991 (before its amendment in 2019) read with S. 56(d) of the Punjab Land Revenue Act, 1967

Plaintiff had failed to prove his right of pre-emption

Suit for pre-emption was dismissed.

For successful exercise of right of pre-emption performance of Talb-i-Muwathibat and Talb-i-Ishhad in respective chronological order was essential, any deficiency in performance thereof would render the suit for pre-emption liable to be dismissed.

Performance of Talb-i-Muwathibat, Talb-i-Ishhad and then superior right of pre-emption for successful exercise of right of pre-emption in respective chronological order was essential.

Limitation for pre-emption suit had to be computed from the date of registration of sale deed or attestation of mutation or taking over physical possession of the land in question or on the knowledge of pre-emptor if transaction was not covered under S. 31(a)(b) & (c) of Khyber Pakhtunkhwa Pre-emption Act, 1987

Transaction in the present case had been made through mutation

Period of limitation of twenty one days would start from the date of attestation of mutation

Talb-i-Muwathibat was made on 08-05-2012 at 20:00 p.m. whereas notice of Talb-i-Ishhad was sent on 19-05-2012

Suit was filed on 04-09-2012 which was barred by time over and above ninety four days

Pre-emptor had deposited one-third of the exaggerated amount falling flat the pretended price fixed by himself and not in accordance with the sale consideration of the mutation

Pre-emptor was aware of the sale consideration of the transaction under the mutation in question

Pre-emptor had not deposited the exact amount which was one-third as required

Impugned judgment passed by the Appellate Court was not in consonance with Ss. 31 & 24(2) of Khyber Pakhtunkhwa Pre-emption Act, 1987 which was set aside and that of Trial Court restored

Revision was accepted in circumstances.

Pre-emptor must take over the whole bargain.

Cultivation rights could be sold and were, therefore, pre-emptible.

When ground of superior right of pre-emption was not claimed in the suit for pre-emption then grant of decree on such basis was not sustainable under the law.

Plaintiff contended that he made immediate demand to exercise his right of pre-emption as shafi shareek and had fulfilled all demands/Talbs

Vendee contended, at the first instance, that right of pre-emption could not be exercised in case of commercial property and even if such right could be invoked, pre-emptor must prove his case fulfilling all the requirements of Talbs

Validity

Right of pre-emption was only to safeguard the privacy of Muslim families and the same could not be enforced in case of commercial property because the question of disagreeable neighbour in such would not arise

Evidence showed that vendee had specifically denied the receipt of any notice of Talb-i-Ishhad, it was imperative upon the pre-emptor to prove dispatch and delivery of said notice to the vendee but none of the witnesses had stated that notice under S. 13 of the Act under registered cover A.D as well as receiving the same by the vendee

Neither the scribe of the notice was produced nor the detail of sale was given by the concerned witness

No suggestion had been put to the vendee that he had received the said notice and the copy of postal receipt A.D. had been exhibited in counsel's statement; it emerged that dispatch of notice was neither alleged nor proved; said Talb had not been proved, which was sine qua non

Even if it was admitted that pre-emptor performed and proved Talb-i-Muwathibat, non-performing of Talb-i-Ishhad was sufficient to disbelieve the version of pre-emptor, as performance and proving of all Talbs was essential in order to succeed in such suit

Two courts below had failed to appreciate evidence and law on the subject in its true perspective

Judgments and decrees of two courts below were set aside and suit was dismissed

Regular second appeal was allowed accordingly.

For successful exercise of right of pre-emption, performance of Talb-e-Muwathibat, Talb-e-Ishhad and then (existence of) superior right of pre-emption, in their respective chronological order is essential

Any deficiency in said legal requirements will render pre-emption suit liable to outright dismissal.

Plaintiff filed suit for pre-emption challenging special power of attorney executed in favour of defendant/alleged vendee for supervision of suit property which was dismissed both by Trial Court and appellate court

Contention raised by plaintiff was that vendor, in order to defeat his right of pre-emption, had transferred suit property in name of vendee through special attorney instead of transferring the same through mutation or registered deed

Validity

Under S. 5 of Khyber Pakhtunkhwa Pre-emption Act, 1987, right of pre-emption would accrue only in case of "sale"

"Sale" as defined under S. 2 (d) of the Act meant a permanent transfer of ownership of immovable property in exchange for valuable consideration

Special attorney, in the present case, was for supervision of suit property and no inference could be made from contents thereof that the same was for any "sale" consideration

Vendor had taken plea that he had not transferred suit property in name of alleged vendee and he was only for looking-after the suit property

Alleged vendee also stated not to have purchased the suit property

Findings as to performance of talbs was not necessary where sale of suit property could not be proved

Judgment and decree of courts below were maintained

Revision petition was dismissed in circumstance.

Pre-emption was allowed when the pre-emptor owned property either adjacent to the pre-empted one or the parties shared a water channel or common thoroughfare adjacent to their respective properties.

Pre-emptor had to establish that he would suffer loss etc. unless the pre-empted property was sold to him.

Appellant/pre-emptor owned only one marla of the passage which was situated adjacent to the suit property-Such passage was not in the exclusive use of the appellant as it was a public thoroughfare used by the public at large

Ownership of such passage would not give the right of pre-emption to the appellant on the ground that he was a Shafi Jar because he was not the exclusive owner of the same

Similarly appellant could not be termed a Shaft Khaleet as there were no special rights attached to the suit property in the sense that it was a public thoroughfare

No superior right of pre­emption had accrued to the appellant

Appeal was dismissed accordingly.

Underlying principle of law of pre-emption was that the pre­emptor had to own property before he could exercise such right.

Said right would be personal for the purpose of its enforceability right from time of sale till date of decree and remained to be personal until a decree was passed

Prior to the passing of the decree right of pre-emption was neither transferable nor inheritable

If pre-emptor died before obtaining decree, his right of pre-emption should remain personal and should not survive

When decree was passed in favour of pre-emptor then the right of pre-emption became a proprietary one and was not only capable of being transferred but also inheritable

Pre-emptor must maintain his superior right of pre-emption on three dates; the date of sale; the date of filing the suit and till the passing of decree

Where the decree was passed and the pre-emptor died during pendency of the appeal, then his legal heirs were not to prove their independent right of pre-emption.

Plaintiffs filed a suit for enforcement of their right of pre-emption, alleging therein that exchange of land in question was actually a sale and as such was pre-emptible

Suit of plaintiffs was decreed

Legality

Burden of proof was on plaintiffs to prove that transaction in question was a sale and not exchange

"S" and "M" stated in their evidence in court that their transaction with defendants was one of sale and not exchange

Such oral statements from "S" and "M" varied the terms of the deed that they had entered into with defendants

Oral statement of a party to an instrument which varied or tended to vary its terms could not be admitted into evidence (Art. 103 of Qanun-e-Shahadat, 1984), therefore, oral statements from "S" and "M" were inadmissible in evidence

Appeal was allowed accordingly and suit of plaintiffs was dismissed.

Plaintiffs filed a suit for enforcement of their right of pre-emption, alleging therein that exchange of land in question was actually a sale and as such pre-emptible; that there was inequality between the quality and market value of properties, which showed that it was a sale and not an exchange

Suit of plaintiffs was decreed

Validity

Contention of plaintiffs regarding inequality between the quality and market value of properties so exchanged was pleaded before the fora below and even before the Supreme Court, but it was neither averred in the plaint nor any significant evidence was brought on the record to substantiate it

Evidence presented by Commissioner being one-sided did not deserve any consideration

Exchange of land between the parties could not be looked askance on such plea of inequality

Appeal was allowed accordingly and suit of plaintiffs was dismissed.

Pre-emptor was obliged to have a right of pre-emption on the date of sale; the right (of pre-emption) on the date of institution of the suit; hold the said right during the pendency of the suit and must possess it till the passing of the decree i.e. date of the decree.

Both the courts below had recorded concurrent findings of law and facts after appraisal of evidence available on record and same were neither perverse nor arbitrary

No illegality, irregularity or jurisdictional defect had been pointed out in the impugned judgments and decrees passed by the courts below

No misreading or non-reading of evidence had been pointed out by the plaintiff

Interference was declined in circumstances.

Right of pre-emption would arise in case of sale which could be effected through mutation or other registered deed.

Lower Appellate Court in exercise of revisional jurisdiction rejected plaint on the ground that mutation in question was based on decree hence suit was barred under S.2(d) of Khyber Pakhtunkhwa Pre-emption Act, 1987

Validity

Application of vendees was specifically on the point of limitation and there was no question of maintainability, regarding sale

Applicability of excluding clause was neither agitated in application nor even in written statement, thus revisional Court had no jurisdiction to go to such extent for rejecting of plaint filed by pre-emptor

Mutation in question was attested on the basis of decree in a suit which was not a money decree, hence it did not come within the excluding clause of S.2(d)(ii) of Khyber Pakhtunkhwa Pre-emption Act, 1987, nor the same came within the purview of order as mentioned in it

High Court, in exercise of Constitutional jurisdiction, set aside the order passed by Lower Appellate Court and restored the suit

Petition was allowed in circumstances.

Pre-emption right being a feeble right, pre-emptor seeking exercise of such right was bound to perform and fulfil its requirements meticulously and any failure in that behalf would deprive him of success in getting a pre-emption decree.

Merely on account of distinct/inequal value of exchange properties, no restriction could be imposed upon its owners to exchange their properties with each other at their option.

However such device must possess all essentials of exchange or gift as defined under the Transfer of Property Act, 1882.

Exchange mutation, in the present case, was attested in the common assembly by the revenue officer while performing his public duties, which attained presumption of truth

Oral evidence of plaintiff's witnesses to prove that transaction was a sale and not an exchange could not exclude documentary evidence, i.e. attested exchange mutation

Suit land was exchanged and not sold

Revision petition was dismissed accordingly.

Impugned mutation had been cancelled and cause of action to file a suit had ceased to exist as right of pre-emption would arise in case of sale of immovable property

No right of pre-emption would exist if there was no sale of immovable property

Right of pre-emption was not a right of re-purchase but same was a right of substitution

Right to pre-empt the sale would extinguish if sale or contract of sale had ceased to exist

Cancellation or revocation of sale would terminate right of pre-emption as pre-emptor in order to succeed had to establish such right on the day of sale, on the day of filing a suit and it should continue till the day of decree

Plaintiff had not disclosed the time of making of Talb-i-Muwathibat and such omission was not curable and plaint was liable to be rejected

Trial Court had rightly rejected the plaint under O. VII, R. 11, C.P.C.

Impugned judgment passed by the Appellate Court was set aside whereas that of Trial Court was restored

Appeal was accepted in circumstances.

Suit for pre-emption was filed on the basis of right in the property sold on the basis of property already held by the pre-emptor

Right of pre-emption was not a personal right, it being in the nature of a limitation on the power of vendor, enforceable on sale which was a condition precedent not the existence of the right but to its enforceability

Such was not a right of repurchase either from the vendor or from the vendee but it was simply a right of substitution

Juristic person (company) could file suit for pre-emption as same could hold and acquire property

Talbs could be performed by the juristic person (company)through authorized person who must have specific authorization for making each of the talbs

Person making talbs must have authorization on behalf of the juristic person (company)prior to performing Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khasumat

Prior authorization must be by the juristic person (company) before the knowledge of sale in favour of authorized person for performing talbs.

Suit for pre-emption was filed on the basis of right in the property sold on the basis of property already held by the pre-emptor

Right of pre-emption was not a personal right, it being in the nature of a limitation on the power of vendor, enforceable on sale which was a condition precedent not the existence of the right but to its enforceability

Such was not a right of repurchase either from the vendor or from the vendee but it was simply a right of substitution

Juristic person (company) could file suit for pre-emption as same could hold and acquire property

Talbs could be performed by the juristic person (company)through authorized person who must have specific authorization for making each of the talbs

Person making talbs must have authorization on behalf of the juristic person (company)prior to performing Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khasumat

Prior authorization must be by the juristic person (company) before the knowledge of sale in favour of authorized person for performing talbs.

Delivery of possession alone was not sale and same would not give right of pre-emption.

Object of right of pre-emption was to avoid introduction of stranger and was an exception over absolute right of owner of property to sell the same which was protected and guaranteed by other laws of the land

Such right would accrue only when there was sale and not otherwise

Sale alone would give right to the pre-emptor to exercise right of pre-emption and not otherwise

Sale should be valid, complete and bona fide.

Revision was dismissed.

During pendency of said suit, Punjab Pre-emption Act, 1991 came into force and Trial Court dismissed the plaint under O. VII, R. 11, C.P.C on the ground that plaintiff had not pleaded 'Zaroorat' or to avoid 'Zarar' as required under S.6(2) of Punjab Pre-emption Act, 1991

Appeal filed by plaintiff before First Appellate Court also failed

Plaintiff filed revision petition before the High Court and by that time S.6(2) of Punjab Pre-emption Act, 1991, which pertained to 'Zaroorat' or to avoid 'Zarar', had been declared as repugnant to Injunctions of Islam by Shariat Appellate Bench of the Supreme Court

High Court remanded the case to the Trial Court by holding that S.6(2) of Punjab Pre-emption Act, 1991 had been retrospectively declared as repugnant to Injunctions of Islam

Validity

Judgment by which Shariat Appellate Bench of the Supreme Court declared S.6(2) of Punjab Pre-emption Act, 1991 as repugnant to Injunctions of Islam did not have any retrospective effect and could not be pressed into service to set aside or invalidate any judgment or decree passed in terms thereof prior to the cut-away date mentioned in the said judgment

Judgments of Trial Court and First Appellate Court were passed in accordance with the law as at that point of time S.6(2) of Punjab Pre-emption Act, 1991 was in force and plaintiff had not pleaded 'Zaroorat' or to avoid 'Zarar' in the plaint

Appeal was allowed, impugned judgment of High Court was set aside and orders of Trial Court and First Appellate Court were restored.

Plaintiff was shafi sharik, shafi khalit and shafi jar in the pre-empted khata, while the defendants had no such qualifications, therefore, he had got superior right of pre-emption

Effect

Land of the plaintiff was situated adjacent to the suit-land and he was co-sharer therein and the defendants were stranger and as such plaintiff had got superior right of pre-emption

Trial Court rightly appreciated the materials brought on record

Appeal was dismissed.

Gift was not pre-emptable.

Right of pre-emption could be transferred or inherited only after passing of decree in favour of pre-emptor, but not prior thereto

Principles.