BASHIR HUSSAIN SHAH Versus MASKIN

1. GHULAM MUJADDID MIRZA, J.‑‑ On 28‑5‑1974 Maskin son of Hussain, resident of Maira Jia, Tehsil Mansehra, filed a suit for possession by pre‑emption on the ground that his property was contiguous to the one purchased by defendant Bashir Hussain Shah bearing Khasra Nos.688/526, 689/526, 529 and 479 situated in the area of Maira Jia, Tehsil Mansehra, for Rs.12,960. According to Maskin, the actual price of the land sold was Rs.2,000 but in order to defeat his right of pre‑emption it had been enhanced to Rs.12,960. Defendant Bashir Hussain Shah contested the suit. The trial Court framed the following issues:‑‑

2. "(1) Whether the plaintiff has a cause of action? OPP.

(2) Whether the suit is bad being for partial '"pre‑emption? OPD.

(3) Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP.

(4) Whether a sum of Rs.28,000 was fixed in good faith or actually paid as the sale consideration of the suit property? OPD.

(5) What is the market value of the suit land? O.P.Partes.

(6) Whether the plaintiff has a superior right of pre‑emption? OPP.

(7) Whether the sum of Rs.12,960 was inadvertently recorded in the mutation as sale price by the Revenue Officer and in fact Rs.28,000 were actually paid as the sale price of the suit land? OPD.

(8) Relief."

3. Instead of dealing with the issues seriatim, the trial Court thought it fit to take up issue No.6 first because this was the issue on which the decision of the suit depended. The issue was decided in favour of the plaintiff. Similarly issue No.l was also decided in favour of the plaintiff. Issues Nos.2 and 3 were not pressed. With regard to Issues Nos.4, 5 and 7 the trial Court held that the Revenue Officer rightly recorded Rs.12,960 as the sale price and not Rs.28,000. However, the market value of the suit land with respect to Khasrss Nos.529 and 688/526 was fixed at Rs.3,250.90. The plaintiff's suit was decreed to the extent of Khasras No.529 and 688/526 on payment of Rs.3,250.90. So far as Khasras No.689/526 and 479 were concerned, the suit was dismissed vide judgment dated 30‑11‑197 i . Defendant Bashir Hussain Shah filed appeal against the order of the trial Court. That too was dismissed by the learned District Judge, Mansehra, by judgment dated 14‑5‑1978. Revision filed by Bashir Hussain Shah was dismissed in limine by a learned Judge of the Peshawar High Court.

4. Thereafter Bashir Hussain Shah filed petition for special leave to appeal in this Court. Leave was granted on 13‑2‑1979.

5. Learned counsel appearing in support of this appeal submitted that the ' view taken by the Peshawar High Court was erroneous in law as neither section 17(2) of the North‑West Frontier Province Pre‑emption Act nor the principle laid down in the case of Saadullah Khan v. Mohabat P L D 1975 Peshawar 218 was applicable to the instant case. It was further submitted that the respondent did not have a superior right of pre‑emption nor partial pre‑emption ‑‑ permissible under the law. The only decision cited by the learned counsel in support of his argument was the case of Muhammad Muzaffar Khan v. Muhammad Yusuf Khan P L D 1959 S C 9, which is distinguishable and does not support the case of the appellant.

6. We have considered the submission of the learned counsel for the appellant but we do not find any force in it. In Saadullah Khan v. Mohabat (supra), the question referred to the Full Bench was that 'if a person purchases land bearing more Khasra Numbers than one situated in the same Khata, then can a pre‑emptor of the said sale get a decree for one of the Khasra Numbers on the ground of contiguity, or, can the vendee defeat the claim of pre‑emption even to that one Khasra Number on the basis of contiguity on the ground that he is to remain a co‑sharer in the Khata after the decree': The answer to the question was that:

7. "* * if a person purchases land bearing more Khasra Numbers than one situated in the same Khata, a pre‑emptor to the said sale can get a decree for such Khasra Numbers as are contiguous to his land, that is to say, vendee cannot defeat the claim of the pre‑emptor to the land which is contiguous to his land on the ground that he is to remain a co‑sharer in Khata after the decree."

8. The above view of the Full Bench was referred to and accepted in Ahmad Khan v. Sattar Din P L D 1981 S C 148. In the light of the above we agree with the conclusion arrived at by the Courts below.

9. In the result the appeal is dismissed with costs.

10. M.Y.H./B‑55/S Appeal dismissed.