Pakistan Case Law
1990 PLD Supreme Court 897

SULTAN and anothers vs HABIB AHMAD and others

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Citation1990 PLD Supreme Court 897
CourtSupreme Court of Pakistan
Judge(s)Nasim Hasan Shah, Shafiur Rahman, Naimuddin, Abdul Qadeer Chaudhry, and Ajmal Mian
ResultAppeals allowed
AI Summary — generated from this judgment; read the full text below and verify before relying on it.

This matter concerns two consolidated civil appeals involving the right of pre-emption in Pakistan. The core legal question addressed is whether a suit for pre-emption based on the right of a co-sharer could be decreed after the target date of 31-7-1986, following the Shariat Appellate Bench's judgment dated 26-5-1990 (PLD 1990 SC 865). In both cases, the pre-emptors had not secured a decree for pre-emption prior to the specified target date. The Supreme Court held that the view previously held by the High Court, which allowed such suits to proceed based on the survival of the co-sharer's right as discussed in Said Kamal Shah's case, was no longer tenable in light of the Shariat Appellate Bench's ruling. Consequently, the Court determined that because the pre-emptors had not obtained a decree before 31-7-1986, their suits could not be decreed thereafter. The Court allowed both appeals, set aside the impugned judgments and decrees, and dismissed the pre-emption suits, establishing that the Shariat Appellate Bench's judgment must be given effect according to its tenor.

Questions settled in this judgment
  • Can a suit for pre-emption based on the right of a co-sharer be decreed after 31-7-1986 if no decree was granted before that date?
  • Does the judgment of the Shariat Appellate Bench dated 26-5-1990 (PLD 1990 SC 865) preclude the decreeing of pre-emption suits after the target date of 31-7-1986?
pre-emptionco-sharerShariat Appellate Benchtarget datecivil appealsuit dismissal

1. ' NASIM HASAN SHAH, J.--This judgment will dispose of the above mentioned two appeals, as the question of law involved in both of them is common.

(1) Civil Appeal No,528/1988 (Sultan v. Habib Ahmad etc.): ' This is an appeal by a vendee in a pre-emption matter against the dismissal of his civil revision by the High Court vide order dated 19-6-1988.

2. ' The learned High Court, in its impugned judgment held that since the pre-emption right of co- sharer has survived the scrutiny made in Said Kamal Shah's case reported as PLD 1986 SC 360 the suit of the respondent based on such a right could be decreed even after the target date i.e, 31-7- 1986. This view is no longer tenable in view of the latest judgment of the Shariat Appellate Bench dated 26-5-1990 (PLD 1990 SC 865) and in so far as the respondent-pre-emptor was not granted the decree for pre-emption at any stage by any Court before 31-7-1986. Accordingly, his suit could not be decreed thereafter. In our judgment of even date in the case of Mst. Aziz Begum etc. v.

3. Federation of Pakistan (Civil Petition No,1-R of 1988) [PLD 1990 SC 899] we have held that the aforementioned judgment must be given effect to in accordance with its tenor.

4. ' This appeal, accordingly, must succeed and is allowed. The order of the High Court is set aside and the suit filed by the respondent for pre-emption shall stand dismissed. No costs.

(2) Civil Appeal No,63/1989 (Ch.Barkat Ali v. Bagh Ali): ' In this case, the pre-emption suit was filed by a co-sharer. However, this suit based on his superior right on the ground of being co-sharer of the suit land was decreed by the trial Court for the first time on 13-12-1987. This could not have been done as explained in the recent judgment of the Shariat Appellate Bench on 26-5-1990 (PLD 1990 SC 865).

5. ' This appeal must succeed and is, accordingly, allowed. The decree in favour of the pre-emptor is set aside and the suit shall stand dismissed. No costs.

6. ' The upshot is that both these appeals are allowed, but the parties are left to bear their own costs.

7. ' SHAFIUR RAHMAN, J.--I agree but for different reasons which are given in my separate note.

8. ' (Sd.) Naimuddin, J. Abdul Qadeer Chaudhry, J. Ajmal Mian, J.

Cited by 14 cases

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