Qazi MUHAMMAD SHAHABUDDIN vs MUHAMMAD QASIM

ORDER

' An area of 8 Kanais and 11 Marlas of land situated within the territorial limits of Town Committee, Dajal, District Rajanpur (fully described in the plaint) was purchased by Muhammad Qasim respondent-vendee vide sale-deed registered on 4-11-1993. Haji Muhammad Shahab-ud-Din instituted his suit on 16-2-1994 to pre-empt the said sale on the alleged qualifications of being the co-sharer, Banna Sharik and watercourse participant. According to him the vendee-respondent did not .Possess the aforesaid qualifications. He averred that he had fulfilled all the prerequisites of Talabs as required by law. The sale price in the sum of Rs,1,37,000 was admitted by the pre- emptor/petitioner.

2. On 13-9-1994 Muhammad Qasim respondent-vendee filed an application for the rejection of the plaint on the ground that the sale-deed was registered on 4-11-1993 which was the date of sale' and according to the provisions of the Punjab Pre-emption Act, 1991 the right of pre-emption was not available to the pre-emptor with respect to the property in dispute situated within the limits of Town Committee, Dajal. It was narrated in the application that on the date of inception of sale, institution of suit and final decision of the suit the pre-emptor must possess the right of pre- emption which was lacking in the instant matter on the date of the sale on 4-11-1993. It was maintained that the right of pre-emption was made applicable to the immovable property situated within the Town Committee/urban area with effect from 31-12-1993 while the sale in the instant matter took place earlier to that on 4-11-1993. The application was resisted by the petitioner/pre-emptor who contended in the written reply that there was no justification to grant the same and that the suit for possession by pre-emption in respect of the dispute property instituted on 16-2-1994 could proceed.

3. On the basis of the respective assertions of the parties pertaining to the application filed under Order 7, rule 11, C.P.C. Following issues were framed for determination:-- Issues:

(1) Whether the plaint is liable to be rejected under Order 7, rule 11, C.P.C.? OPA (Defendant).

(2) Relief.

4. The parties did not produce their evidence. After hearing the parties the Trial Court held that on 4-11-1993 the date of sale under pre-emption, the right of pre-emption was not available to the pre-emptor in view of section 2(1) of the Punjab Pre-emption Act, 1991 as the immovable property is situated within urban area of Town Committee Dajal while such a right could be exercised with effect from 3.1-12-1993 in view of the ruling published as Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1). Consequently the application was accepted and the plaint was rejected. The appeal preferred by the petitioner/pre-emptor met with the same fate entailing the filing of this revision petition.

5. I have heard the preliminary arguments addressed by the learned counsel for the petitioner who canvassed before me that about an immovable property situated within the urban area the right of pre-emption could be exercised with effect from 31-12-1993 and the suit having been instituted on 16-2-1994 the right of pre-emption could be exercised and the petitioner/preemptor could not be non-suited. I do not agree with him. It would be convenient to reproduce as under section 2(a) of the Punjab Pre-emption Act, 1991:- "An ' immovable property' means immovable property situated in an area other than an urban area or within cantonment limits as declared by any law relating to Local Bodies or Cantonments, as the case may be, for the time being in force."

5-A. The sale under pre-emption stood completed on 4-11-1993 and on that date the right of pre- emption with respect to the suit property situated within the urban area of Town Committee Dajal was not available to the pre-emptor through the statutory law. On the said date of accrual of cause of action the right of pre-emption could not be exercised and that being the target date in the matter, the institution of the suit on 16-2-1994 after the provision of section 2(a) of the Punjab Pre-emption Act, 1991 was not operative with effect from 31-12-1993, would not be of any help to the petitioner/pre-emptor. The plaintiff must possess the right of pre-emption with respect to the property in dispute on the date of the sale which stands eclipsed in the instant matter as the sale took place on 4-11-1993. Legally the pre-emptor has to show that he had the superior pre-emptive right and could exercise the same on the date of the sale, the date of the institution of the suit and the date of the final judgment. The factual and legal position is that in the instant matter the petitioner could not exercise the said right with respect to the suit property at the initial stage on 4- 11-1993 and I hold that his plaint has rightly been rejected on 27-11-1994 and the appeal was correctly dismissed. No irregularity has been committed by the lower Courts whose judgments and decrees are unexceptional.

6. I, therefore, am not inclined to admit this revision petition for regular hearing which is dismissed in limine.