NIZAM DIN vs Syed ASHFAQ ALI SHAH And 2 Other
This matter concerns a petition for leave to appeal against an order of the Lahore High Court involving a dispute between rival pre-emptors regarding the superior right of pre-emption over a suit property. The core legal question was whether the petitioner, who claimed a right based solely on contiguity, possessed a superior right compared to the respondents, who claimed rights based on both contiguity and the existence of an easement (windows opening towards the suit property). The Supreme Court held that the respondents established a superior right because the petitioner failed to specifically deny the respondents' claim regarding the easement, and the petitioner admitted that the respondents' windows opened towards the suit property. Consequently, the Court found the respondents' case fully covered under the relevant statutory provisions of the Punjab Pre-emption Act. The Supreme Court affirmed the findings of the lower courts, concluding that the respondents held the superior right of pre-emption, and dismissed the petition for lack of merit.
- Does the existence of an easement, such as windows opening towards a suit property, establish a superior right of pre-emption under the Punjab Pre-emption Act 1913?
- Is a failure to specifically deny an opponent's claim in a written statement considered an admission of that claim in pre-emption litigation?
- Section 16, Punjab Pre-emption Act 1913
ORDER
ALI HUSSAIN QAZILBASH, J: --This is a petition for leave to appeal from the order of a learned Division Bench of the Lahore High Court, dated 4-7-1988.
2. The contest is between the two rival pre-emptors. The suit of respondents 2 and 3 has been decreed throughout for having a superior right of pre-emption qua the petitioner being the owners of dominant property. The above findings have now been challenged through the present petition.
3. After hearing the learned counsel for the parties, we have not been able to find any fault with the findings arrived at by the Courts below. In the plaint submitted by the petitioner he claimed superior right of pre-emption on the basis of contiguity only. This was refuted by the respondents, the rival pre-emptors. As against this, the respondents' suit was based on contiguity and also that the windows of their property opened towards the suit property; that they had been enjoying this right of easement for over seven decades and thus have a superior right of pre-emption. The fact that the windows of the house of the respondents opened towards the suit property has not at all been specifically denied in the written statement submitted by the petitioner. On the other hand, the petitioner has admitted that the windows of the house of the respondents do open towards the suit property. The case of the respondents is thus fully covered under the provision of section 16 clause fifthly of the Punjab Pre-emption Act and, therefore, the Courts below were justified in non- suiting the petitioner.
4. Finding no merit in the petition, the same is dismissed.