ZILLA MUHAMMAD and others vs QAMAR ALI KHAN and another

' Sh. Azmat Saeed, J.--This civil petition for leave to appeal is directed against the judgment dated 27.10.2014, passed by the learned Peshawar High Court, Peshawar, whereby Civil Revision i.e. C.R. No. 477-P of 2013, filed by the present petitioners, was dismissed.

2. The brief facts necessary for adjudication of the lis at hand are that Respondent No. 2 was the owner of the land in dispute and sold the same to the present petitioners on 18.01.2010. Respondent No. 1 filed a suit for pre-emption, claiming a superior right of pre-emption. It was contended in the plaint that the actual sale consideration was Rs. 56,000/- and a fictitious amount of Rs. 3,75,000/- was displayed as the sale consideration with mala fide intention in Order to defeat the right of pre- emption of Respondent No. 1. The suit was resisted. The learned trial Court seized of the matter, dismissed the suit vide judgment dated 30.11.2012. However, it was held that Respondent No. 1 had a superior right of pre-emption and a finding was also returned that the actual sale price, as claimed by the petitioners, was Rs. 3,75,000/-. Being aggrieved, Respondent No. 1 filed an appeal, which was allowed vide appellate judgment and decree dated 03.05.2013 and the suit was decreed. The finding as to the sale price was maintained. Thereafter, the petitioners invoked the revision jurisdiction of the learned Peshawar High Court through Civil Revision No. 477-P of 2013, which has been dismissed vide impugned judgment dated 27.10.2014.

3. The learned counsel at the very outset conceded the superior right of pre-emption of Respondent No.1. A two-fold grievance was raised; firstly, that Talb-e-Ishhad was not proved in accordance with law and secondly, since Respondent No. 1/Plaintiff had claimed that the sale price was Rs. 56,000/- and not Rs. 3,75,000/-as disclosed in the Sale Deed. The said Respondent having raised a false plea was not entitled to the decree for pre-emption. In-support of his contentions, the learned counsel for the Petitioners, referred to Section 33 of the North-West Frontier Province Pre-emption Act, 1987 (Act of 1987), and the judgment of a two Members Bench of this Court, reported as Subhanuddin and others v. Pir Ghulam (PLD 2015 SC 69).

4. Heard. Available record perused.

5. In the instant case, with regards to Talb-e-Ishhad, Respondent No. 1 not only examined himself but also produced the two attesting witnesses and to prove the delivery of such notice, the official of the concerned Postal Department was also examined. In the above circumstances, the learned First Appellate Court returned a finding that Talb-e-Ishhad had been duly performed in accordance with law. Such finding has been affirmed by the learned Revision Court through a detailed judgment. No misreading or non-reading of evidence has been pointed out at the bar to warrant interference with such finding of fact.

6. The main thrust of the arguments of the learned counsel was that since Respondent No. 1/Plaintiff had raised a plea that the actual sale consideration was Rs. 56,000/- and not Rs.

3,75,000/- as mentioned in the Sale Deed, which was rejected; therefore, the suit should have been dismissed as a false plea had been taken in view of Section 33 of the Act of 1987 and judgment of this Court, reported as Subhanuddin and others (supra).

7. Section 33 of the Act of 1987, is reproduced here under for ease of reference; "33. Matters ancillary or akin to the provisions of this Act.--Matters ancillary or akin to the provisions of this Act which have not been specifically covered under any provision whereof shall be decided according to Sharrah." (emphasis supplied)

' A bare perusal of the aforesaid provision makes it clear and obvious that the same is attracted only with regard to a matter not ek guidance from Holy Qur'an, Sunnah and Fiqah, and Section 33 deals with the matters ancillary or akin to the provisions of the Act which have not been specially covered under any provision thereof shall be decided according to Shariah. There is apparently no ambiguity in the provisions of Section 24 of the Act ibid and in the interpretation and application thereof resort to Sections 3 and 33 was not called for ...."

8. The North-West Frontier Province Pre-emption Act, 1specifically catered for under any provision of the above-said Act of 1987, as has also been held by this Court in the case, reported as Habibullah Khan v. Amir Zaman and 9 others (1995 SCM R 135) in the following terms: "Section 3 of the Act ibid provides that in the interpretation and the application of provisions of this Act the Court shall se987, contains a specific provision for resolution of disputes inter se the parties with regard to the consideration of the sale. Reference in this behalf may be made to Section 27 of the Act of 1987, which is reproduced here under: "27. Fixing of price for purposes of suit in case of sale.--(1) Where in the case of a sale the parties are not agreed to the price at which the pre-emptor shall exercise his right of preemption the Court shall determine whether the price at which the sale purports to have taken place has been fixed in good faith or paid, and if it finds that the price was not so fixed or paid, it shall fix the market value of the property as the price to be paid by the pre-emptor.

(2) If the Court finds that the price was fixed in good faith or paid, it shall fix such price to be paid by the pre-emptor." (emphasis supplied)

It is evident from the_above provisions of law that in the eventuality of a disagreement between the parties with regard to the price, the Court is empowered to determine whether the purported sale price has been fixed in good faith or paid and in case it comes to the conclusion that the sale price has been paid in good faith, it is such price which would be required to be paid by the pre- emptor. Such payment is to be made in terms of the decree passed in favour of the successful pre-emptor as is obvious from Section 25 of the Act of 1987.

9. Thus, when there is a dispute between the parties as to the sale price, such matter has been specifically catered for by Section 27 ibid and, therefore, the provision of Section 33 ibid cannot be resorted to as is not only obvious from the text of Section 33 and as has been held by this Court in the case, reported as Habibullah Khan (supra). Furthermore, it is also clearly stated in Section 27(2) ibid that if the purported sale price is determined by the Court to have been fixed in good faith or paid, the suit is to be decreed on the payment of such price by the pre-emptor and not dismissed as is being canvassed by the learned counsel for the Petitioners. With regard to the case, reported as Subhanuddin and others (supra), it appears that the provisions of Sections 25 and 27 of the Act of 1987, more particularly, sub-section (2) of Section 27 and the judgment of this Court, reported as Habibullah Khan (supra) were not brought to the notice of the Court, hence, we are constrained to observe with respect, that perhaps the same is not good law and, therefore, we find ourselves unable to follow it.

10. In view of the above, this civil petition being without merit is dismissed and leave declined.