BAHADUR SHER vs LAL SHAH
This petition for leave to appeal arose from a pre-emption suit concerning the sale of land, including 'Shamilat' (common) land. The petitioner, a vendee-defendant, challenged the concurrent findings of the lower courts, which had decreed the respondent's suit for pre-emption. The core legal question was whether the respondent's suit for pre-emption was defective for failing to specifically mention 'Shamilat' land in the plaint, thereby allegedly violating the requirements of the West Pakistan Land Dispositions (Saving of Shamilat) Ordinance, 1959. The Supreme Court dismissed the petition, holding that the lower courts correctly interpreted the pleadings and evidence. The Court found that the respondent had effectively pre-empted the sale of the 'Shamilat' land by using the phrase 'mae jumla hukuk mutaliq aan arazi mutadawia' (along with all rights pertaining to the land in dispute). The Court affirmed that the appreciation of evidence by the lower courts, which included examining the sale deed, mutation, and party depositions to determine the intent to pre-empt, was sound and did not contravene any legal principle.
- Can a suit for pre-emption succeed if the plaint uses general language to include 'Shamilat' land rather than specifying it explicitly?
- Does the appreciation of evidence by lower courts regarding the intent to pre-empt 'Shamilat' land constitute a legal error if based on the totality of pleadings and depositions?
- Does Section 3 of the West Pakistan Land Dispositions (Saving of Shamilat) Ordinance 1959 prohibit the pre-emption of 'Shamilat' land if the land is not specifically described in the plaint?
- Section 3, West Pakistan Land Dispositions (Saving of Shamilat) Ordinance 1959
1. ' MUHAMMAD AFZAL ZULLAH, J.-This is a petition for leave to appeal by a vendee-defendant. It calls in question the judgment of the Peshawar High Court dismissing a civil revision filed by the petitioner against the judgment of the two learned lower Courts decreeing the respondent's suit for pre-emption qua about 12 kanals of land and dismissing the ' The petitioner's plea before the High Court was that the respondent's entire suit should have been dismissed because he had failed to mention in his plaint "Shamilat" land which also formed part of the sale in favour of the petitioner. The learned Courts below after carefuxamination of the pleadings of both the parties and their depositions during the trial came to the conclusion that the respondent did also pre-empt the sale of "Shamilat land by using the phrase "mae jumla hukuk mutaliq aan arazi mutadawia". An additional circumstance was that the petitioner himself in his deposition had not used specific languge to indicate either that he had purchased any "Shamilat" land. Or that the suit did not relate to the "Shamilat" land.
2. The learned counsel has advanced the same argument in support of this petition and has contended that section 3 of West Pakistan Land Dispositions (Saving of Shamilat) Ordinance. 1959, did not permit the "disposition" of Shamilat without specifying the Shamilat or the relevant portion thereof ; and that being so the plaintiff in his suit for pre-emption regarding Shamilat land could not succeed without specifying the Shamilat land. He has also relied on two cases in this behalf one from Azad Jammu & Kashmir and another from the Peshawar High Court.
3. ' There is a peculiar feature of evidence in this case. The averments made in the plaint have been examined by all the learned Courts below with reference to the written statement filed by the petitioner, the contents of the registered sale deed, the mutation which was attested as a result of the sale deed and the depositions made by both the parties. The appreciation of the aforementioned entire material for coming to the finding that the plaintiff intended to pre-empt the sale of the share of the Shamilat land also, did not contravene any law or principle. In the circumstances of this .Case, therefore, the argument raised by the learned counsel is without any force. This petition accordingly fails and is dismissed.