FAIZ BAKHSH vs ALI MUHAMMAD
This petition for special leave to appeal arises from a judgment of the Lahore High Court, which set aside an appellate court decree and restored the trial court's dismissal of a pre-emption suit. The petitioner, claiming a right of pre-emption based on being a co-sharer in the Khata, had his suit initially dismissed by the trial court for failing to prove co-sharer status. The first appellate court reversed this, finding the petitioner became a co-sharer through a 1968 exchange. The High Court, in revisional jurisdiction, disagreed, ruling the petitioner lacked a preferential right. The core legal question before the Supreme Court is whether the High Court erred in its determination regarding the petitioner's status as a co-sharer and the subsequent application of pre-emption law. The Supreme Court, finding that the contention regarding the misapplication of law and the petitioner's co-sharer status requires further examination, granted leave to appeal. The Court also ordered the maintenance of the status quo regarding possession pending the final disposal of the appeal.
- Does a co-sharer in a Khata possess a superior right of pre-emption over an outsider?
- Can an exchange of land effectively confer the status of a co-sharer for the purposes of a pre-emption suit?
- Is the determination of a party's status as a co-sharer a question of law or fact in pre-emption litigation?
ORDER
' SAAD SAOOD JAN, J.---This is a petition for special leave to appeal from the judgment dated 20- 6-1992 of the Lahore High Court, Bahawalpur Bench, whereby in revisional jurisdiction a learned Single Judge set aside the judgment and decree of the first appellate Court and restored the judgment of the trial Court whereby the suit for pre-emption of the petitioner was dismissed.
2. One Muhammad Nawaz Shah sold about 20 Kanals of land in village Kotla Mahmood Khan of Tehsil Rahimyar Khan to the respondent for a sum of Rs,25,000. The transaction was an oral one and it was evidenced by a mutation attested on 20-3-1974. The petitioner filed a suit for pre- emption. He inter alia alleged that he was a co-sharer in the Khata of which the land sold formed a part and that the respondent was an outsider so far as the said Khata was concerned. The trial Court found that the petitioner was not a co-sharer in the joint Khata and as such he did not possess a better right than the respondent to acquire the land. Accordingly, it dismissed the suit.
The petitioner filed an appeal before the Additional District Judge, Rahimyar Khan. The learned Additional District Judge held that by virtue of an exchange which took place in 1968 the petitioner had become a co-sharer in the Khata; consequently, he was a co-owner therein and for that reason he did possess a superior right to acquire the land in dispute. Accordingly, by his judgment dated 7-4-1983 he decreed the petitioner's suit. The respondent filed a revision petition in the High Court to call in question the legality of the judgment of the first appellate Court. A learned Single Judge took the view that the petitioner did not possess the preferential right; accordingly, he accepted the revision petition, set aside the judgment of the Additional District Judge and restored that of the trial Court. The petitioner seeks leave to appeal from this Court.
3. In support of this petition it is contended that the finding of the learned Single Judge with regard to the superior right of the petitioner is founded on misapplication of the relevant law and that it erred in holding that he was not a co-sharer in the relevant Khata.
4. After hearing the learned counsel for the petitioner we consider that the contention raised in support of this petition needs examination. Leave to appeal is granted.
5. Status quo with regard to possession to be maintained during the pendency of the appeal.