TARIQ MAHMOOD And Others vs MUHAMMAD ZAMAN
This matter concerns a petition for leave to appeal against a judgment of the Lahore High Court in a pre-emption suit. The dispute arose from the sale of 80 Kanals of land by a vendor, Mst. Nasim Akhtar, from a joint un-partitioned Khatta. The respondent, claiming to be a tenant on 72 Kanals of the sold land, filed a suit for pre-emption. The trial court limited the respondent's pre-emption rights to 6 Kanals, reasoning that he was a tenant of all co-sharers, not just the vendor. The High Court, however, allowed the respondent's appeal based on an admission made by the petitioners during the trial that the respondent was cultivating the land under the vendor, thereby entitling him to pre-empt the entire area. The petitioners challenged this, arguing that the admission was made by a layman, contradicted the record of rights, and that the vendor could not legally sell specific pieces of land from a joint Khatta without prior partition. The Supreme Court granted leave to appeal, finding these legal questions required further examination.
- Can a vendor sell a specific piece of land from a joint un-partitioned Khatta without first seeking partition?
- Does an admission made by a layman during trial that contradicts the record of rights bind the parties?
- Is a tenant of a co-sharer entitled to pre-empt the entire land sold by that co-sharer from a joint holding?
ORDER
1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment, dated 3rd Apri1,1982, of the Lahore High Court; whereby a Regular Second Appeal arising out of a pre-emption suit filed by the respondent, was allowed.
2. Mst.Nasim Akhtar vendor had sold to the petitioners her share of land amounting to 80 Kanals from a joint un-partitioned Khatta. The respondent claimed to be the tenant on 72 Kanals out of the sold land and filed a suit for pre-emption. It was held by the trial Court that the respondent would be deemed to be a tenant of all the co-sharers and Mst.Nasim Akhtar having sold about 1/12th part of the joint Khata the respondent was entitled to claim pre-emption only regarding 6 Kanals of land.
3. Respondent's suit regarding the remaining land was dismissed. He filed an appeal, which met the same fate. On his Second Appeal a learned Judge in the High Court, inter alia, held that during the trial an admission was made from the petitioner-side that the respondent was cultivating land under Mst. Nasim Akhtar. That being so, he was entitled to get the entire land under his cultivation as tenant of Mst.Nasim Akhtar the vendor.
4. Amongst others, learned counsel for the petitioners has also raised the following points: One:That the admission being against the entries in the record oil rights was made by a layman without any basis and should not have been acted upon, and, Two:That in any case Mst. Nasim Akhtar could not have Sold specifics piece of land from a jointly owned Khata without seeking partition in the first instance.
5. Questions raised in this petition require examination. Leave to appeal accordingly is granted.
6. Security Rs . 2 , 500.