FAZALA vs WALL MUHAMMAD AND Other
This matter concerns a petition for special leave to appeal against a judgment of the High Court, which had affirmed a decree in a pre-emption suit. The plaintiff-respondent had filed a suit for pre-emption against three defendants, two of whom conceded the claim, while the petitioner contested it. The trial court initially dismissed the suit, but the appellate court reversed this decision, finding the plaintiff possessed a superior right of pre-emption. The High Court subsequently dismissed the petitioner's second appeal. Before the Supreme Court, the petitioner argued that because the other co-vendees were related to the vendor, the suit should have been dismissed, and further contended that the pre-emptor had waived his right. The Supreme Court held that the petitioner failed to substantiate the claim of relationship with the vendor and failed to demonstrate any misreading of evidence regarding the alleged waiver. Consequently, the Court affirmed the lower courts' findings, ruling that the petition lacked merit. The principle established is that a plea of relationship to defeat a pre-emption claim must be specifically pleaded and proven, and factual findings regarding waiver, if not based on misreading of evidence, are not subject to interference in leave to appeal.
- Can a petition for special leave to appeal succeed on the basis of a general, unsubstantiated allegation of relationship between a vendee and a vendor?
- Does the appellate court's finding on the issue of waiver, when supported by evidence, warrant interference by the Supreme Court?
- Is a pre-emption suit liable to be dismissed if some co-vendees concede the pre-emptor's right while others contest it?
ORDER
KARAM ELAHEE CHAUHAN, J.-Wali Muhammad (plaintiff-respondent No. 1 herein) tiled a suit for pre-emption of the land in dispute against three defendants out of 'v, whom two vendees conceded his right but the present petitioner Fazala contested. However, the learned Civil Judge, Sahiwal on 11-11-1975, dismissed that suit.
2. The plaintiff filed an appeal which was accepted by the learned Additional District Judge on 23- 9-1978. He held that the plaintiff had a preferential right of pre-emption against the petitioner/vendee and as such he reversed the judgment of the learned Civil Judge and decreed the suit.
3. The petitioner/vendee filed a second appeal being R. S. A. No. 843/ 1978 but without any success as the same was dismissed by the High Court on 24-3-1980.
4. The petitioner has come up in a petition for special leave to appeal against the same to this Court.
5. It is conceded that no doubt the petitioner himself has no preferential right against the plaintiff/pre-emptor but it is argued that as the other co--vendees were also related to the vendor therefore the suit ought to have been dismissed by the two Courts below. The contention has no merit. So far as the other co-vendees are concerned they had already conceded the right of the pre-emptor and so far as the plaintiff himself is concerned he admittedly had no right against him.
It was submitted that there was a general allegation - that the petitioner was also a relation of the vendor. On being asked as to what was the exact relationship of the petitioner with the vendor, the learned counsel could not give any definite answer. It was then contended that the pre-emptor had waived his right of pre-emption therefore he was estopped from filing the suit. On this point the findings of the learned Additional District Judge and the High Court are against the petitioner and the learned counsel on this factual aspect of the matter has not been able to point out any omission or misreading of evidence) in that respect, warranting interference by this Court.
6. The result is that this is not a fit case for grant of special leave to appeal. The petition has no merit and is dismissed.
Cited by 2 cases
- KHURSHID ALAM vs NAZI R AHMAD AND 2 OTHER 1982 CLC 854
- KHURSHID ALAM vs NAZIR AHMAD AND 2 OTHERS 1982 CLC 854