SHER MUHAMMAD vs GHULAM MUSTAFA
This appeal challenged a High Court judgment that had remanded a pre-emption suit to the trial court, relying on a Full Bench decision of the Lahore High Court. The core legal question was whether the right of pre-emption based on relationship (being the son of the vendor) survived in light of the Supreme Court's decision in Said Kamal Shah (PLD 1986 SC 360). The respondent had filed the suit claiming pre-emption solely on the basis of being the son of the vendor, not as a co-sharer. The Supreme Court held that the ratio decidendi of its judgment in Sardar Ali and others (PLD 1988 SC 287) was applicable, which established that the right of pre-emption could not be claimed on the basis of relationship. Consequently, the Supreme Court allowed the appeal, set aside the High Court's judgment, and restored the judgments and decrees of the trial court and the District Judge, which had dismissed the respondent's suit. The principle laid down is that pre-emption claims based on relationship are not maintainable following the legal position established in Said Kamal Shah.
- Does the right of pre-emption based on relationship survive after the judgment in Said Kamal Shah?
- Is a claim for pre-emption maintainable if based solely on the relationship of being the son of the vendor?
AJMAL MIAN, J.---Leave to appeal was granted against the judgment dated 28-2-1988 passed by a learned Single Judge of the Lahore Court in Civil Revision No. 182/D of 1987 to consider the question, that as no decree was passed in favour of any of the respondents/pre-emptors before 31-7-1986, the ratio decidendi of the judgment of this Court in the case of Sardar Ali and others PLD 1988 SC 287 was applicable.
2. The facts to be noted are that the respondent filed a pre-emption suit in respect of the suit property but the same was dismissed in view of the judgment given by this Court in the case of Said Kamal Shah PLD 1986 SC 360 on the ground that right of the pre-emptor as a relation did not survive. Appeal against the above judgment was also dismissed on 25-2-1987 by the learned District Judge, Attock. Thereupon, the respondent filed aforesaid civil revision which was allowed alongwith other connected revisions and the case was remanded to the trial Court after setting aside the two judgments and decrees of the two Courts below on the basis of a Full Bench judgment of the Lahore High Court in the case of Abdul Ghaffar Khan and others v. Saghir Ahmad Aslam and others PLD 1987 Lah. 358. It seems that the judgment of this Court in the aforesaid case of Sardar Ali and others was not brought to the notice of the learned Single Judge of the High Court in which a contrary view to the view found favour by the Full Bench of the Lahore High Court in the aforesaid case was taken. It was held that on the basis of relationship right of pre-emption could not have been claimed. The respondent had filed the suit on the basis of the averment that he was the son of the vendor and not on the basis that he was a co-sharer.
3. Mr. Muhammad Munir Paracha, learned Advocate Supreme Court for the respondent, has not been able to controvert the above legal position. However, he submitted that, according to his information, the suit has already been dismissed by the trial Court. On the other hand Mian Inamul Haq, learned Advocate Supreme Court appearing for the appellant stated that he has no such information. We would, therefore, allow the above appeal and set aside the judgment under appeal and would restore the judgments and decrees of the two Courts below. However, there will be no order as to costs.