EHSAN ELLA HI vs AKHTAR ALI And Other
This is a petition for special leave to appeal directed against the judgment and decree of the Lahore High Court, which dismissed the petitioner's suit for pre-emption. The core legal question was whether the petitioner possessed a superior right of pre-emption regarding the urban immovable property in dispute. The Supreme Court held that the petitioner failed to prove the existence of the right of pre-emption in the relevant locality under the applicable statute when it came into force, and furthermore, a son of the vendor is not among the persons entitled to pre-emption under the governing provisions for urban immovable property. Consequently, the petition was dismissed. The key principle laid down is that a claim for pre-emption regarding urban immovable property must strictly satisfy the statutory requirements and prove the existence of the custom where required by law, and familial relationship alone without statutory backing does not suffice.
- Whether a plaintiff can claim a superior right of pre-emption without proving its existence in the locality when the Pre-emption Act, 1913 came into force?
- Does a son of the vendor possess a right of pre-emption in respect of urban immovable property under section 16 of the Pre-emption Act, 1913?
- Section 7, Pre-emption Act 1913
- Section 16, Pre-emption Act 1913
SAAD SAOOD JAN J.--This is a petition for special leave to appeal from the judgment and decree of the Lahore High Court which reversed the judgment and decree of the Additional District Judge, Gujrat and restored those of the trial Court, dismissing the suit for pre-emption filed by the petitioner.
2. The property in dispute falls within the limits of Kharian Town. The trial Court found that it had lost its character as agricultural land and that it was now urban immovable property. This finding was reversed by the Additional District Judge. On re-appraisal of the evidence the High Court set-aside the findings of the Additional District Judge and restored that of the trial Court. We find no reason to interfere with the findings of the High Court in this regard. The petitioner led no evidence at the trial to indicate that the right of pre-emption existed in that part of Kharian Town where the land in dispute was located when the Pre-emption Act, 1913, came into force. That being so, in view of the provisions of section 7, Pre-emption Act, the petitioner could not claim a superior right of pre- emption for himself.
3. The contention on behalf of the petitioner is that the right of pre-emption was part of the Islamic Law and wherever the Muslims lived in Pakistan the custom of pre-emption should be presumed to exist. Even if the proposition canvassed on behalf of the petitioner is assumed to be correct, although we make no comments on it, still he cannot succeed in his claim of superior right. It is to be noticed that in his plaint the petitioner had founded his preferential right solely on the ground that he was the son of the vendor. Now, section 16 of the Pre-emption Act, enumerates the persons in whom the right of pre-emption vests in respect of urban immovable property. A son, or, for that matter a collateral of the vendor, is not mentioned therein. We would accordingly reject the contention of the petitioner.
4.This petition is without any merit and is hereby dismissed