Khan Mir Khan (decd) through L.Rs. and others vs Ibrar Latif Khan and others
This petition for leave to appeal arose from a judgment of the Lahore High Court, which set aside concurrent judgments and decrees of the lower courts that had decreed a suit for pre-emption filed by the petitioner. The core legal question concerned whether the pre-emptor established the requisite contiguity with the suit property based on the revenue record, where a specific Khasra number out of a Khata was sold by a sole owner. The Supreme Court held that when a full owner of a Khata sells a specific Khasra number, the vendee becomes the full owner of that specific property and a new Khata is created, meaning contiguity must be determined with reference to the specific Khasra number sold rather than the entire Khata. The Court laid down the principle that a pre-emptor must accept the sale as made and that the sale of a specific Khasra number by a sole owner carves out that specific parcel, rendering general Khata contiguity arguments inapplicable unless established against the specific sold unit.
- Whether a pre-emptor can claim contiguity to an entire Khata when a specific Khasra number has been sold by a sole owner?
- What is the legal effect on the revenue estate when a full owner of a Khata sells a specific Khasra number?
- Does a pre-emptor disputing a sale need to accept the sale as transacted to succeed in a pre-emption suit?
- Article 185(3), Constitution of Islamic Republic of Pakistan, 1973
ORDER
AM IN-UD-DIN KHAN, J. Through this petition filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 leave has been sought against the judgment and decree dated 08.06.2016 passed by the learned Single Judge of the Lahore High Court, Lahore whereby Civil Revision No. 2709 of 2009 filed by the respondents-defendants was allowed and judgments and decrees of two courts below, whereby suit of pre-emption filed by the petitioner was decreed, were set aside.
2. Brief facts of the case are that respondents-defendants purchased the suit property measuring 1 Kanal 10 Marla falling in Khata No. 155, Khatooni No. 172 Khasra No.671, Register Haqdaran Zameen for the year 1999 through mutation No. 1358 attested on 10.09.1999. Suit was filed on the basis that plaintiff is having property contiguous to suit property, therefore, he has right to pre-empt the suit property. Written statement was filed. Suit was contested and it was denied that plaintiff is having property contiguous to suit property. The learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. Learned trial court was pleased to decree the suit vide judgment and decree dated 15.01.2009. Appeal filed by the vendees/defendants was dismissed by the learned Additional District Judge Camp at Isa Khail vide judgment and decree dated 21.5.2009. The vendees/defendants challenged the concurrent judgments and decrees before the Lahore High Court through Civil Revision which was allowed vide judgment dated 8.6.2016. Hence, this petition for grant of leave.
3. Learned counsel for the respondents/defendants is also available as caveator. We have heard the learned counsel for the parties.
4. Learned counsel for the plaintiff-petitioners has mainly argued that admittedly suit property is falling in Khata No. 155 which consists upon Khasra Nos. 650 and 671 whereas plaintiff was having property in Khewat No. 115/114, Khatooni No. 452/582 which consists upon Khasra Nos. 649 and 653.
Learned counsel argues that he has produced Exh.P7 Aks Masavi (Shajra Parcha) to show that Khasra Nos. 649 and 650 are adjacent whereas Khasra No. 671 is adjacent to Khasra No. 650. In this view, the argument of learned counsel that the sale was made in favour of vendees/defendants through the impugned mutation in Khewat No.155 in which Khasra No. 649 exists, the plaintiff is recorded owner in Khewat No. 115, therefore, the contiguity is proved and the findings recorded by the High Court are not sustainable. We are afraid that arguments advanced by the learned counsel for the plaintiff are not only against the record and settled principles of law enunciated by this Court but the revenue record also. It was plaintiff who has preemted the sale of land in in favour of vendees; through Mutation No. 1358. Admittedly through mutation No. 1358 out of Khewat No. 155, Khatooni No. 172 the total area of Khasra No. 671 measuring 1 Kanal 10 Marla was sold in favour of vendees/defendants and the plaintiff has preempted the sale.
5. It is settled that if pre-emptor disputes the sale, he cannot succeed in preemption suit unless he totally accepts the sale and in case he succeeds he is substituted to the vendee/vendees. In this case as per record Mst. Memoona Bibi vendor was owner of full Khewat No. 155 consisting upon two Khasra numbers i.e. Khasra No. 671 consisting upon 1 Kanal 10 marlas, which is the suit property whereas Khasra No. 650 consists upon 2 kanals 2 marlas. In the mutation specific Khasra No. 671 measuring 1 kanal 10 marlas has been sold which was the right of the seller when she was sole owner of the full Khata she was having a right to sell specific khasra number. Even this khasra number was preempted which is mentioned in the headnote as well as in the body of the plaint.
Further the remaining land of the vendor Mst. Memoona falling in Khasra No. 650 measuring 2 kanals 2 marlas was sold in favour of a third person namely Ghulam Qadir son of Umar which was preempted by the present plaintiff/petitioner and he succeeded in his preemption suit and mutation No. 2916 for specific property Khasra No. 650 was attested in his favour on 11.11.2008 on the basis of said pre-emption decree dated 31.10.2008, which fact confirms that plaintiff admits that the vendor has rightly sold Khasra No. 671 in favour of vendees/defendents and remaining Khasra No. 650 remained with the vendor who subsequently sold in favour of Ghulam Qadir and that sale was preempted by the plaintiff himself and when he succeeded, he got attested mutation No. 2916, in his favour regarding Khasra No. 650 measuring 2 Kanals 2 Marlas. In this view of the matter, the stance taken by the plaintiff before this Court that when sale was from Khewat No. 155 which is adjacent to Khewat No. 115, therefore, plaintiff has a right of preemption, is absolutely incorrect and against the record. Needless to observe that when a person sells shares of property from a khewat, if he is full owner of the khewat or he is a shareholder along with other owners in the khewat in the sale share of the land sold in favour of a vendee is mentioned. Suppose a khewat consists upon 10 kanals of land and the vendee purchases 1 kanal, it will be mentioned 1/10 share for vendee whereas 9/10 share will remain in the ownership of the sole vendor or the shareholders of the khewat, as the case may be. In this eventuality, the new purchaser will become owner in every inch of the land of the khewat in accordance with his share of purchase. When a full owner of a khewat sells a specific khasra number, part of khewat, through sale in favour of a vendee, the vendee becomes full owner of that specific khasra number and in the next Register Haqdaran Zamin a new khewat is to be created in favour of such vendee.
6. In this view of the matter, learned counsel failed to make out a case for grant of leave.
Consequently, leave to appeal is refused. Petition stands dismissed.