GULZADA AND OTHERS vs RAZA KHAN AND OTHERS

1. ' MUHAMMAD Gul, J.-The petitioners herein purchased house measuring about 16 marlas situate in Mouza Sheikh Muhammadi, Tehsil and District Peshawar on 15-11.1965 once belonging to one Zaman, from some of his heirs, namely, his son Wasil, daughter Mst. Mehro and widow Mst. Kalu.

2. Another son of Zeman, namely, Raza Khan respondent No, 1 herein, sued to pre-empt the sale on the grounds among others that being a co-sharer in the house which had devolved from his father, he had a superior right of pre-emption as against the petitioners. The suit was mainly resisted by the petitioners on the basis of the provisions of section 5 of N.-W. F. P. Pre-emption Act, 1950 on the ground that they had purchased the house for their personal residence and that they do not own any other house or a vacant site in the village. The section forbids inter alia, the pre-emption of agricultural land or village immovable property not exceeding two kanals sold to a resident in the village who does not own a house or vacant site measuring more than one kanal for constructing a house for his own occupation. Among the issues framed by the trial Court, was: "Whether the sale in dispute was exempt from pre-emption under section 5 of the Pre-emption Act?"

3. ' The trial Court found the above issue in the negative and decreed the suit. On appeal by the petitioner-vendees before the learned District Judge, the finding of the trial Court on the above issue though questioned in the grounds of appeal was not pressed, presumably because of a Full Bench decision of the Peshawar High Court in the case of Muhammad Hassan v. Zafar Ali Khan (1).

4. Accordingly, the decree of the trial Court was upheld by the learned District Judge.

5. ' The aforesaid Full Bench decision of the Peshawar High Court has become obsolete because of the later judgment of this Court in Faqir Muhammad Khan v. Amir Akbar Shah (2). Taking advantage of later decision of this Court, the petitioners herein thought it fit to agitate the matter further in second appeal in the High Court, presumably on the ground that they own only a fractional share in the house, which could not conveniently accommodate their family and dependents. The learned Chief Justice of the High Court in view of the law declared by this Court, permitted the petitioners to withdraw from the concession made on their behalf in the first appellate Court and permitted their counsel to repaginate the matter on the basis of the evidence already produced.

6. In view of the evidence produced in the case, in the opinion of their learned Chief Justice, the above issue was rightly decided by the trial Court. On the balance of evidence produced in the case, the learned Chief Justice and no difficulty to concur in the finding that the petitioners "own consider blew landed property in the village and more than one house, much of which he had rented to one Azim son of Faqir". On this finding, therefore, in e opinion of the Chief Justice, the petitioners could not possibly invoke e provisions of section 5 of the 1950 Pre-emption Act to resist the suit of re-emption.

7. ' Having heard Mr. Muhammad Afzal Bangash, learned counsel at some ngth, we consider that the case was rightly decided by the learned Chief ustice and there is hardly any ground for interference by this Court. The etition is dismissed.