QASIM KHAN vs NAWAB KHAN And Other
This matter concerns a petition for special leave to appeal against a High Court judgment dismissing a pre-emption suit. The core legal question was whether a sale of land, where the vendees purchased the property for the construction of houses, was exempt from the right of pre-emption under the relevant statutory provisions. The petitioner sought to pre-empt a sale of equity of redemption regarding specific land shares. The trial court, the appellate court, and the High Court concurrently held that the sale was exempt from pre-emption because the vendees had purchased the land for the purpose of constructing houses, and the area involved was within the permissible limits. The Supreme Court upheld these concurrent findings, noting that the vendees had become co-sharers and the land was purchased for house construction. The petition was dismissed, affirming the principle that sales of land for the specific purpose of house construction, within statutory limits, are exempt from pre-emption claims.
- Is a sale of land for the purpose of constructing houses exempt from the right of pre-emption?
- Can a vendee who becomes a co-sharer in land resist a pre-emption suit if the land was purchased for house construction?
- Section 5(c), North-West Frontier Province Pre-emption Act 1950
ORDER
1. QAISAR KHAN, J.--Nawaz Khan was the owner of the following land situated in village Gharrenga Payan of the Peshawar Tehsil:-
(1) 7/144th share measuring 18 Marlas out of 18 Kanals 18 Marlas bearing Khasra Nos.290, 273, 333, 330, 350, 306, 329 and 337.
(2) 7/24th share measuring 1 Kanal 15 Marlas out of 6 Kanals bearing Khasra No.74.
2. Nawaz was in possession as co-sharer of Khasra Nos. 306, 329 and 337 measuring 5 Kanals 18 Marlas. He had mortgaged the land on his possession for Rs. 1,400.
3. On the basis of a registered sale-deed dated the 1st of December, 1965 he sold the equity of redemption of the aforesaid land to Zar Wali and Mohabat for Rs. 600. On the 19th September, 1966 Qasim Khan pre-empted the sale. The vendees contested the suit and the learned Civil Judge by his order dated the 16th of February, 1967 held that since the vendees had purchased the land for construction of houses the sale was exempt from pre-emption under section 5(c) of the Pre-- emption Act. He, therefore, dismissed the suit.
4. The plaintiff went up in appeal to the Court of District Judge and a learned Additional District Judge by his order dated the 29th of June, 1967 agreeing with the findings of the lower Court dismissed the appeal. The plaintiff filed a second appeal in the High Court against the judgment and order of the learned Additional District Judge and a learned Single Judge in the High Court by his order dated the 4th of July, 1975 dismissed the second appeal.
5. Qasim Khan the plaintiff-pre-emptor has filed this petition for special leave to appeal against the judgment and decree of the learned Single Judge in the High Court.
6. After hearing Mr. M. Afzal Bangash, learned Advocate for the petitioner and Mr. Abdus Samad Khan, learned Advocate on Record for the respondents who had entered caveat, we have come to the conclusion that there is no merit in this petition. The vendees-respondents had become co-sharers with the other owners in the Khasra numbers in dispute and they could therefore get their share separated through partition and since the area purchased was not more than 2 Kanals and it has been concurrently held by ell the Courts that the vendees had purchased the land for constructing houses, the sale was, therefore. Exempt from pre-emption.
7. There is nothing in this petition and it is, therefore, dismissed.
Cited by 1 case
- FAZAL KARIM and others ITAQIR MUHAMMAD-- LATIFUR REHMAN and others 1989 PLD Supreme Court 764