Syed NAZAR HUSSAIN SHAH and anothers vs SHAH MUHAMMAD and 3 others
This matter arises from a petition for leave to appeal directed against a judgment of the Lahore High Court, which dismissed the petitioners' civil revision and upheld the dismissal of their pre-emption suit. The petitioners had filed a suit for pre-emption claiming a superior right to purchase the suit property sold by Bashir Ahmed to the respondents. The trial court initially dismissed the suit, holding that the petitioners lacked a superior right, which decision was subsequently reversed in appeal by the Additional District Judge who decreed the suit. Upon civil revision by the respondents, the High Court set aside the appellate decree and dismissed the suit, prompting the current petition. The core legal question concerns the determination of superior pre-emption rights and the proper evaluation of evidence regarding possession and title documents. The Supreme Court granted leave to appeal, holding that the contentions raised by the petitioners regarding the application of the Transfer of Property Act and the evaluation of documentary and possession evidence require a deeper examination of the record.
- Whether the High Court erred in omitting to examine the title documents produced by the pre-emptor petitioners?
- Does the question of possession play a crucial role in determining pre-emption suits in the Bahawalpur area where the Transfer of Property Act is applicable?
- Whether a co-sharer or pre-emptor loses their right of pre-emption by joining a stranger in purchasing the suit land?
- Transfer of Property Act 1882
ORDER
' MUKHTAR AHMED JUNAJO, J.---Leave to appeal is sought against a judgment, dated 17-3-1993 passed by the Lahore High Court, Bahawalpur Bench, in Civil Revision No,94-D of 1983-BWP.
2. The petitioners filed Suit No,410 of 1970 (1985) in the Court of Administrative Civil Judge, Bahawalnagar, for pre-empting sale of suit property by one Bashir Ahmed in favour of respondents 1 to 4. The petitioners claimed having right of pre-emption superior to that of respondents 1 to 3 for purchasing the suit land. They conceded similar right of pre-emption vesting in respondent No, Muhammad Tahir but took stand that his right had vanished for having joined respondents 1 to 3 in purchasing the suit land. Sale price was challenged to be Rs,22,000 and not Rs,30,000 mentioned in the deed. Mst. Sardar Begum was joined in the suit as a defendant being another pre-emptor but later on her name was deleted.
3. The suit was contested by the respondents who took legal pleas about the suit being not maintainable and barred by time. The sale was said to have been effected on consideration of Rs,30,000 and possession of the suit property was claimed to have been received by the respondents on 12-9-1962. The respondent claimed to be Pattidars in the Khata of the suit land. The petitioners were alleged to have waived their right of pre-emption. The respondents claimed to have spent Rs,12,000 on development of the suit land.
4. After settlement of issues and recording of evidence, the trial Court under the judgment and decree, dated 25-1-1972, dismissed the suit, after holding that the petitioners had no superior right of pre-emption; that Rs,22,000 were proved to have been paid as sale consideration and that the suit was filed within the period of limitation. On the point of improvements and waiver, the learned trial Court found that no evidence was led and said issues were decided against the respondents.
5. In appeal the learned Additional District Judge-III, Bahawalnagar, under his judgment and decree, decreed the suit subject to deposit of Rs,30,000 as pre-emption money minus the amount already deposited and if said amount was not deposited by 3-4-1983, the suit was to be treated as dismissed. The judgment and decree passed by the appellate Court on 3-3-1983 was assailed in Civil Revision No,94-D of 1983-BWP which was accepted under the impugned judgment, dated 17- 3-1993 by which the suit was ordered to have been dismissed. Hence this petition.
6. Rana Muhammad Sarwar, learned counsel for the petitioners argued that the suit property was situated in Bahawalpur area where the Transfer of Property Act was applicable and that the High Court. Omitted to examine the documents produced by the petitioners. It was also argued that in a suit of the present nature, the question of possession was important but the point of possession was not given any importance by the High Court. In respect of the possession, the learned counsel pointed out that Muhammad Tahir had filed a suit where he had taken stand that he had not given possession.
7. The points raised by the learned counsel for the petitioners require examination in the light of the evidence on record. Accordingly, we grant leave to appeal.