MAZHARUL HAQ vs MUHAMMAD SHAFIQ And Other
This matter originated as a suit for possession by pre-emption filed by the petitioner, claiming a superior right as a co-sharer in the suit land. The trial court and the first appellate court decreed the suit in favor of the petitioner. However, the High Court, in its revisional jurisdiction, set aside these concurrent findings, concluding that the defendants, despite being minors, had permanently settled in the village where the land was purchased, thereby qualifying for the exemption under the pre-emption law. The core legal question before the Supreme Court was whether the High Court was justified in interfering with the concurrent findings of the lower courts regarding the defendants' residence and the validity of the land purchase. The Supreme Court upheld the High Court's decision, finding that the evidence supported the conclusion that the defendants' guardian had permanently settled in the village. The Court affirmed that the law of pre-emption does not bar a minor from purchasing land for house construction, thus allowing the exemption provided under the relevant statute. The petition was consequently dismissed as meritless.
- Does the law of pre-emption bar a minor from purchasing land for the construction of a house?
- Can a High Court in revision interfere with concurrent findings of fact if the evidence supports the conclusion reached by the High Court?
- Does the purchase of land by a minor for the construction of a house qualify for exemption under the N.-W.F.P. Pre-emption Act?
- Section 5(c), N.-W.F.P. Pre-emption Act 1950
ORDER
MIAN BURHANUDDIN KHAN, J.--Mazharul Haq petitioner instituted a suit for possession by pre- emption of land measuring 5 Kanals and 11 Marlas claiming superior right i.e. Being co-sharer in the suit land. The suit was contested by the respondents. The learned trial Court decreed the suit of the petitioner. Respondents filed an appeal before the learned District Judge which failed. Respondents then filed revision before the High Court which was allowed, vide the impugned judgment, dated 10-4-1985, setting aside the judgments of both the Courts below.
2. The only question raised before us by the learned counsel for the petitioner is that the concurrent finding of the two Courts below should not have been upset in revision by the learned High Court without any legal flaw. The learned Judge had omitted from consideration that respondent No.3 is a minor who had his own parents and family; that there was no evidence worth the name nor any indication whatsoever that he or his parents gave up their residence in Waziristan the respondent's guardian ad litem, in course of his service, could have moved from place to place. In his statement he did not even mention that he had shifted his residence from Waziristan. The learned High Court Judge was not justified in reversing the finding of- the two Courts below.
3. We have gone through the evidence on record, and examined the contention, of the learned counsel. The learned High Court Judge observed in the impugned judgment as follows:- "The plaintiff while giving the address of the defendants in the plaint had shown them as the residents of village Mandhra in which the suit land was purchased. Besides it is also proved from record that the guardian of the defendants stands posted as a Compounder in Civil Hospital, D.I.
Khan. It thus stands established particularly when in rebuttal the plaintiff has adduced no cogent evidence that the guardian of the defendants who are minors is a resident of village Mandhra. He has purchased the land for the construction of the house for his minor sons the defendants.
Undoubtedly the defendants being Mahsood do not originally hail from the village in which the land was purchased but from the evidence it has been proved that he has been permanently settled in village Mandhra. Learned counsel for the plaintiff respondent, however, contended that the defendants being minor, the land could not be purchased for construction of houses and that with a view just to defeat the pre-emptive rights of the plaintiff respondent the defendants have given the colour to the transaction as for construction of houses. I, however, do not agree with this contention of the learned counsel because the law of pre-emption has placed no bar on purchasin the land for the construction of house on a minor and thus t invoke exemption as envisaged by section 5(c) of the N.-W.F.P. Pre-emption Act. In this view, I am fully fortified by the 6 observation in Gul Jawar v. Nawab Khan and another reported as PLD 1967 Pesh. 234."
Thus, we find no reason to interfere with the impugned judgment. The petition is without merit and is, consequently, dismissed.