MAHMOOD AHMED and 16 others vs AZIZ and 2 others
This matter concerns a petition for leave to appeal arising from a pre-emption suit involving agricultural land. The land was sold to multiple vendees via an oral mutation, with each vendee's specific share clearly delineated. Respondents filed a suit for possession through pre-emption, which was decreed by the Trial Court. During the pendency of the appeal, the First Appellate Court dismissed the petitioners' appeal on the ground that one co-vendee had not joined the appeal, rendering the transaction indivisible and precluding a decree for partial pre-emption. The Lahore High Court upheld this dismissal. The Supreme Court granted leave to appeal to examine whether the specification of individual shares in the mutation effectively negated the finding of indivisibility and partial pre-emption. Furthermore, the Court sought to determine whether the non-joinder of a co-vendee who was also the brother of the pre-emptors constituted a fatal defect in the proceedings. The case addresses the legal implications of specific share allocation in pre-emption transactions and the procedural requirements regarding the joinder of parties in appellate proceedings.
- Where the share of each vendee is specified in a mutation, does this prevent the transaction from being considered indivisible for the purposes of partial pre-emption?
- Is the non-joinder of a co-vendee in an appeal against a pre-emption decree fatal to the appeal?
ORDER
' SH. RIAZ AHMED, J.---The facts in brief giving rise to the institution of this petition for leave to appeal are that agricultural land measuring 42 Kanals, 18 Marlas situated in village Khaneki More, Tehsil Chunian, District Kasur was sold by Mst. Rehmat Bibi widow and other legal heirs of Ahmed Din in favour of the petitioners Nos.1 and 2 and predecessor-in-interest of petitioners Nos.8 to 17 and respondent No,3 through an oral sale vide Mutation No, 1028, dated 13-12-1973. The share of all the five vendees was different from each other and had been specifically mentioned in the mutation.
2. Respondents Nos.1 and 2 filed a suit for possession through preemption on the ground that they were collaterals of the vendor and also their land was contiguous and irrigated through a common watercourse. The suit was contested by the petitioners and predecessor-in-interest of petitioners Nos.3 to 7 and petitioners Nos.8 to 17 through common written statement. Respondent No, 3, who was the real brother of the plaintiff, did not contest the suit. Vide order dated 19-5-1982, the suit was decreed by the learned Civil Judge.
' Petitioners Nos.1 and 2 and the predecessor-in-interest of petitioners Nos.3 to 7 and 8 to 17 filed an appeal and during the pendency of the appeal, the Shariat Appellate Bench gave its verdict in Said Kamal's case (PLD 1986 SC 360). The First Appellate Court vide judgment and decree dated 19-5- 1997 dismissed the appeal of the petitioners on the sole ground that respondent No,3, a co-vendee had not joined as appellant to assail the judgment and decree of the Trial Court and the transaction of the disputed land was indivisible and, therefore, decree for partial pre-emption could not be passed. A revision petition filed against the said judgment was also dismissed by the Lahore High Court vide order impugned.
3. After hearing the learned counsel at length, we are of the view that it is a fit case in which leave should be granted to consider inter alia the following questions:--
(i) Since the share of each of the vendee had been specified in the mutation, could it be said that it was a case of partial pre-emption?
(ii) Whether non joinder of the real brother of respondents Nos.1 and 2 (pre-emptors) was fatal?
Order accordingly.
Leave to .