MUHAMMAD ALI vs MUHAMMAD SHARIF
This matter involves two petitions arising from a pre-emption suit where the pre-emptor claimed a right based on being a co-sharer, while the vendee-defendant resisted the suit claiming tenancy rights. The High Court had granted a pre-emption decree to the pre-emptor for a 2/3 share of the land, while allowing the vendee to retain 1/3 share based on his tenancy. The vendee challenged this, arguing the entire suit should have been dismissed because he held tenancy rights over the whole land. The Supreme Court rejected this, holding that since the vendee purchased only a 1/3 share of the total joint holding, he was only entitled to retain that specific proportion under his tenancy. The pre-emptor also sought leave to appeal, alleging a lack of opportunity for a hearing before the appellate court. The Supreme Court dismissed this petition as well, ruling that it would not grant leave to appeal on mere technicalities when the petitioner could not demonstrate that a remand would alter the outcome of the case.
- Is a vendee entitled to retain tenancy rights over the entire land when they have only purchased a fractional share of a joint holding?
- Will the Supreme Court grant leave to appeal based solely on procedural technicalities where the outcome of the case would remain unchanged?
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--These two petitions; one by a pre-emptor and the other by vendee- defendant arise out of the same case. Therefore, they are being disposed of together.
2. ' Muhammad Sharif, petitioner (C.P. No,498/81) sued for pre-emption on the ground that he and his brother Muhammad Shafi vendor were co-sharers in the suit land. Muhammad Ali vendee petitioner (C.P. No,352/81) resisted the suit on the ground of tenancy.
3. ' The present position is that after the decision of the High Court, there is a pre-emption decree in favour of Muhammad Sharif to the extent of 2/3 share in the suit land (51 Kanals 13 Marlas) and 1/3 share therein has been allowed to remain with the vendee Muhammad Ali on the ground of tenancy.
4. ' The learned counsel for Muhammad Ali has argued that the entire suit relating to the suit land i.e, 51 Kanals 13 Marlas should have been dismissed because Muhammad Ali is the tenant regarding the entire 51 Kanals 13 Marlas. This plea cannot be accepted because Muhammad Ali did not purchase any specific area of 51 Kanals 13 Marlas in the joint holding of the vendor and the pre- emptor. He got a share which amounted to 1/3 of the total joint holding therefore he would be entitled to retain 1/3 of the total area under his tenancy. Reliance of the learned counsel on Lal Khan v. Faiz Ahmad 1986 SCMR 1962 is of no help to him as the same is distinguishable. Moreover, all the facts of the case are not given in the report. The petition No,352/81 is, therefore, dismissed.
5. ' The learned counsel for pre-emptor-petitioner in Civil Petition No,498/81 contended that the petitioner was not afforded enough opportunity of hearing by the first appellate Court. Therefore, the decision of dismissal of the suit by the trial Court should not have been reversed by the appellate Court. We asked him to satisfy us that if the case is remanded for affording Muhammad Sharif an opportunity of hearing the results would be different. He did not urge anything in this behalf. We would, therefore, not grant leave to appeal on mere technicalities. The other petition No,498/81 is also dismissed.
6. ' Leave to .
Cited by 2 cases
- GHULAM QASIM vs MAHMOOD and others 1991 CLC 319
- SHARIF MUHAMMAD vs KHUDA BAKHSH Represented By His Legal Heirs And 3 1989 CLC 2092