Maulana ABDUL WAHID And Others vs Haji RASOOL BAKHSH
This appeal arises from a dispute over the alleged sale of land, where the respondent filed a pre-emption suit under the West Pakistan Civil Courts Ordinance 1962 (referred to as Ordinance I of 1968 in the judgment). The core legal question was whether a pre-emption suit is maintainable and requires a reference to a Tribunal when the alleged sale is categorically denied by both the purported vendor and vendee, and no documentary evidence of the sale exists. The Supreme Court held that the existence of a sale is the fundamental prerequisite for a cause of action in pre-emption matters. Since the parties unequivocally denied that any sale occurred and no evidence supported the respondent's claim, no "civil dispute" existed to warrant a reference to a Tribunal. Consequently, the Court set aside the High Court's order, restoring the decisions of the Deputy Commissioner and the Board of Revenue. The key principle laid down is that in pre-emption cases, the fact of sale must be established as a condition precedent to the existence of a justiciable dispute; absent such proof, the suit lacks a cause of action.
- Does a pre-emption suit maintainable when the alleged sale is denied by both the vendor and the vendee?
- Is a reference to a Tribunal under Ordinance I of 1968 required when no evidence of a sale exists?
- What is the fundamental prerequisite for a cause of action in a pre-emption suit?
- Ordinance I of 1968
1. NASIM HASAN SHAH, J.--This appeal, by leave of this Court, is directed against the judgment dated 15-3-1982 passed by a Division Bench of the High Court of Baluchistan, Quetta, in Constitutional Petition No. 153 of 1979.
2. The relevant facts are that Appellants Nos. 2 and 3 are the owners of a piece of land in Khata No. 40, Khatooni No. 41, comprising of 8 Rakhis of land and water situated in Mauza Dehpal Pao Beha, Shakh Rasul Bakhsh. Respondent Haji Rasul Bakhsh filed a suit for pre-emption in the Court of the Deputy Commissioner, Sibi, on 28-1-1975under Ordinance-I of 1968 (hereinafter referred to as Ordinance No.1 of 1968) in respect of the said land on the allegation that the said property had been purchased by appellant No.1 (Maulana Abdul Wahid) from appellants Nos. 2 and 3 for a consideration of Rs.80,000. The appellants in their respective written statements challenged the claim of the respondent claiming that no sale had at all taken place, arid, therefore, the suit was not maintainable and no "civil dispute" at all existed between the parties which could be referred to the Tribunal. The objection of the appellants prevailed with the Deputy Commissioner, Sib:, who, vide his order dated 5-4-1975 dismissed the suit.
3. Feeling dissatisied, Haji Rasool Bakhsh, respondent, preferred an appeal in the Court of the Commissioner, Sibi Division, who accepted the same holding that a genuine dispute over the sale of the land in question had arisen between the parties and, as a dispute existed, the same had to be decided under the mechanism provided under Ordinance I of 1968. This order was passed on 27-6-1978.
4. The appellant No.1 challenged the above order by filing a revision before the Board of Revenue. The revision was heard by Shahzada Sultan Hamid, Member-II, Board of Revenue Baluchistan, who held that the order of the Deputy Commissioner dismissing the plaint was correct and that of the Commissioner' allowing the appeal against that order unsustainable. He observed that no documentary evidence for the sale of the land was produced by the plaintiff (respondent herein).
5. He further observed that for a cause for pre-emption, some documentary evidence must be produced to establish the fact of sale. Since no such evidence was available there was no cause of action or dispute and, therefore, it was not incumbent upon the Deputy Commissioner to refer the case to a Tribunal. He, accordingly, accepted the revision petition by his order dated 23-5-1979.
6. The respondent, feeling dissatisfied, filed a constitutional petition in the High Court of Baluchistan at Quetta. The learned Judges of the Division Bench of the said Court hearing the said petition were inclined to agree with the conclusion reached by the Commissioner that the question of sale could also be determined by the Tribunal to whom the reference has to be made and, accordingly, allowed the Constitutional Petition, set aside the orders of the Deputy Commissioner, Sibi and Member, Board of Revenue. Baluchistan and restored that of the Commissioner with the result that the matter was to be referred to the Deputy Commissioner, Sibi, for constitution of a Tribunal after framing issues in accordance with the provisions of Ordinance I of 1968. Hence this appeal against the order of the High Court by leave of this Court.
7. Appellant No.1 was present in person and was heard. He has categorically stated before us that no sale has been made to him by appellants Nos. 2 and 3. Neither he had purchased the land in question from them nor he is in possession of it but that the land in dispute continues to be in their possession. He has also submitted, in his own handwriting, a statement which is duly signed by him to the above effect which has been placed on the record.
8. We may observe that in matters of pre-emption it is the sale alone which gives rise to a cause of action. Unless the sale of the property in dispute is established no question of the existence of a dispute arises which requires to be adjudicated upon through the forums Created under Ordinance I of 1968. In the instance case, admittedly there is no document of sale. The appellants Nos. 2 and 3, who are the alleged vendors, as well as appellant No.1, who is a vendee, unequivocally dispute the assertions of the respondent that no sale of the land in question has taken place. There is no material at all with the respondent to indicate the sale of the disputed property. In the absence of any basis whatever for the assertion that a sale has been affected, the question of the existence of any cause of action or the existence of a "Civil dispute" does not arise. The conclusion of the Deputy Commissioner, Sibi, that he had no lawful jurisdiction to make reference to the Tribunal for adjudication in the circumstances of the present case which was upheld by the Member, Board of Revenue, was obviously correct. The order of the High court, whereby the said orders were found to have been passed without lawful authority and to be contrary to law, was not, therefore, tenable in law. The impugned order of the High Court must, accordingly be set aside and this appeal allowed.
9. The result is that this appeal succeeds and is allowed with costs.