MUHAMMAD SHARIF AND ANOTHER vs KHURSHID AHMAD
This matter concerns a petition for leave to appeal arising from a pre-emption dispute where the lower courts upheld the respondent's preferential right of pre-emption. The core legal question addressed is whether a finding of fact regarding a preferential right of pre-emption can be sustained when it relies solely on an averment in the plaint that was explicitly controverted in the written statement, without the respondent or any witness appearing in the witness-box to support the claim or prove the supporting documentary evidence (a school leaving certificate). The Supreme Court granted leave to appeal, observing that the lower courts' findings appeared to be based on no evidence. Additionally, the Court addressed the petitioners' request for a stay of the decree, noting that the previous condition requiring payment of Rs. 6,000 as annual compensation for use and occupation was potentially onerous given the land's actual profitability. Consequently, the Court directed the local Tehsildar to conduct an inquiry and submit a report to determine the appropriate amount of compensation for use and occupation during the pendency of the appeal.
- Can a finding of a preferential right of pre-emption be sustained if it is based solely on an averment in the plaint that was controverted in the written statement?
- Is a school leaving certificate sufficient to establish a relationship for pre-emption purposes if it is tendered by counsel without any witness appearing to support the claim?
- What is the appropriate procedure for determining the quantum of compensation for use and occupation when a stay of execution is granted pending appeal?
ORDER
1. NASIM HASAN SHAH, J.-It has, inter alia, been argued that the respondent in order to prove his preferential right of pre-emption relied only upon the school leaving certificate which too was tendered in evidence by his counsel. Neither the respondent nor any body on his behalf appeared in the witness-box to support this claim. The learned Judge in the High Court relied only A upon the averment made by the respondent in his plaint that he was the son of the vendor but the same was controverted by the petitioners herein, in their written statement. Hence the finding of the Courts below that the respondent had established his preferential right was based on no evidence.
2. ' Leave is, accordingly, granted.
3. ' Security for costs of the respondent shall be furnished in the sum of Rs, 1,00,.
4. As regards the question of stay we observe that a learned Single Judge had passed an order in Chambers on 20-11-1982 allowing stay to the petitioners, subject to their paying Rs, 6,000 to the respondent within fifteen days by cash or money order as compensation for use and occupation for one year (in 1982 January to December, 1982). It was further directed that if the matter remains pending beyond a year this direction shall be deemed to be repeated on expiry of every year. The learned counsel states that the stay was granted on onerous terms since the profits of the land in dispute do not exceed more than about rupees three thousand per year. He wishes the stay to be extended on payment of Rs, 3,000 per year as compensation for use and occupation during the pendency of the appeal.
5. ' Let the Tehsildar of the area, in which the property is located, hear the parties on this question and submit a report, as to the proper amount that should be fixed for compensation for use and occupation of the land in dispute, to this Court within three months after making necessary inquiry into the matter.