AHMAD SULTAN KHAN Versus SANIN KAUSAR

ORDER

1. MUHAMMAD AFZAL ZULLAH, J. ‑‑Leave to appeal has been sought from judgment, dated 2‑5‑1984 of the Peshawar High Court; whereby a Civil Revision filed by the respondent‑side arising out of a pre‑emption suit was allowed and the petitioner's suit for pre‑emption was dismissed.

2. Umar Khan respondent purchased 12 Marlas of land for building a house for his minor daughter Sanin Kausar respondent, in her name‑‑the land being 12/62 share of an un-partitioned Khasra number. The petitioner filed a pre‑emption suit which was dismissed by the learned trial Court on the ground that the sale in question being for the purpose of building a house was exempt from pre‑emption under the N.‑W.F.P. Pre‑emption law. The appeal of the petitioner however, was accepted by the learned District Court and consequently, a decree for pre‑emption was passed. On respondents revision the appellate judgment having been reversed the petitioner's suit stands dismissed. He has now sought leave to appeal.

3. Two points have been raised in support of this petition: One, that Mst. Sanin was a Benami purchaser the real purchaser was her father Umar Khan who though a resident of the village owned a house, therefore, the exemption should not have been applied. Secondly, that even if it be assumed that the land was purchased for building a house for Sanin Kausar, it could not be built because the land was not partitioned and a house could not be built on an un-partitioned piece of land.

4. Same arguments had been advanced before the High Court. We agree with the learned Judge of the High Court that there was nothing wrong or unusual for a father, in a society to which the parties belong, purchasing a plot of land for building a house for a minor daughter in her name. The question of Benami transaction or the purchase having been made by Umar Khan for his own sake, therefore, did not arise. Reliance of the learned counsel on Iman v. Saifur Rehman 1982 P S C 1474 is of no avail to the petitioner because that case is distinguishable from the present case.

5. On the question of un-partitioned share of land the learned Judge in the High Court relied on Qasim Khan v. Nawaz Khan and others 1979 S C M R 358 to hold that 'the vendee could get his share separated through partition and since the area purchased was not more than two Kanals the sale was, therefore, exempt from pre‑emption as the vendee had purchased the land for constructing a house'. We have no reason to differ with the High Court on this point.

6. There is no force in this petition and the same is dismissed.

7. M . Y . H . ?????????????????????????????????????????????????????????????????????????????? ??????????? Petition dismissed.