WALAYAT KHAN and 3 others vs KHYZER HAYAT KHAN and 6 others
This petition for leave to appeal arises from a dispute over pre-emption rights concerning a land sale. The petitioners, claiming superior pre-emption rights as collaterals and co-sharers, challenged a decree granted to the respondents (the vendor's family), who had filed a competing pre-emption suit. The trial court had issued a conditional decree favoring the respondents, which was later reversed by the Additional District Judge on the grounds that the respondents' suit was collusive and intended to defeat the petitioners' superior rights. The High Court subsequently set aside the appellate court's judgment and restored the trial court's decree. The petitioners contended that the High Court failed to address the pivotal issue of collusion and the improper determination of the land's market value, alleging misreading and non-reading of evidence. The Supreme Court, finding merit in the contentions regarding the legality of the High Court's judgment, granted leave to appeal to examine whether the lower court properly adjudicated the issues of collusion and valuation.
- Can a suit for pre-emption filed by the family members of a vendor be dismissed on the grounds of collusion?
- Does a trial court have the authority to fix different sale prices for rival pre-emptors in a consolidated suit?
- Is a High Court required to address the issue of collusiveness in a pre-emption suit when reversing an appellate court's finding?
- Article 185(3), Constitution of Islamic Republic of Pakistan 1973
' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 arises out of proceedings in the pre-emption suits.
2. The land measuring 133 Kanals 11 Marlas was purchased by respondents Nos. 1 and 2 namely Khizar Hayat and Muzaffar Khan from one Mehdi Khan vide registered sale-deed, dated 5-5-1977 for a consideration of Rs,1,17,000 as mentioned in the sale-deed. The petitioners claiming themselves to be the collateral of Mehdi Khan, co-sharer in Khatta and owner in village, filed a suit for pre-emption. Pending disposal of the suit of the petitioners, respondents Nos. 3 to 7, the children and wife of Mehdi Khan vendor, also filed a suit for preemption. The learned trial Judge consolidated both the suits and during proceedings, Muzaffar Khan one of the vendee defendant conceded the right of respondents Nos. 3 to 7 for grant of decree in the suit filed by them. The learned trial Judge on conclusion of the proceedings, passed the decree in favour of respondents Nos.3 to 7 vide judgment, dated 13-12-1982 subject to the deposit of an amount of Rs,13,510 as sale price by 19-12-1982 and in case of their failure to deposit the sale price, the suit would stand decreed in favour of the petitioners, the rival preemptors for the sale price of Rs,32,000 before 23- 12-1982. In appeal, learned Additional District Judge, Gujrat, by reversing the judgment of the trial Court held that the suit filed by respondents Nos.3 to 7 who are the wife and children of the vendor, was collusive and while dismissing their suit, maintained the decree in the suit of present petitioners. The respondents Nos.3 to 7 filed the Regular Second Appeal (R.S.A. No,269 of 1984) against the judgment and decree of First Appellate Court in the High Court and the learned Single Judge in the High Court vide the impugned judgment, while setting aside the judgment of First AppellateCourt allowed the appeal and restored the judgment and decree passed by the trial Court.
3. Learned counsel for the petitioners with reference to the evidence on record, contended firstly that respondent-pre-emptors being members of the family of vendor, were living with him in the same house with no clash of interest and they in collusion with the vendees of the land and for their benefit, filed the suit to defeat the superior right of pre-emption of the petitioners. Secondly, the sale price of the land given in the sale-deed was Rs,1,17,000 whereas the learned trial Judge passed conflicting decrees by fixing sale price of Rs,13,510 in the suit of respondents Nos. 3 to 7 and Rs,32,000 in the suit of the petitioners. In nutshell the argument of the learned counsel was that the learned Judge in the High Court without attending the pivotal issue relating to collusiveness of the suits and non determination of the market value of the land by the trial Court reversed the findings of the First Appellate Court through misreading and non-reading of evidence.
4. We having heard the learned counsel for the petitioners at length and perused the record with his assistance feel it necessary, in the light of above contentions, to examine the legality of the judgment under challenge. We accordingly, grant leave in this petition and direct that interim order, dated 17-5-2001 shall remain continue pending disposal of the appeal.