ALLAH DITTA and others vs SAID
This petition for leave to appeal arises out of a judgment of the Lahore High Court upholding the decree in favour of the respondent pre-emptor. The core legal question concerns whether the pre-emptor maintained a subsisting right of pre-emption at all necessary stages, particularly where an intermediate order of eviction was subsequently set aside by the Board of Revenue during the pendency of proceedings. The Supreme Court held that the pre-emptor did not lose his superior right irreversibly, as the initial dismissal decree preceded the temporary eviction order, and the right was duly resurrected when the Board of Revenue recalled the eviction during the pendency of the High Court proceedings. The petition was accordingly dismissed. The key principle laid down is that a temporary or momentary loss of possession or right, which is subsequently revived or resurrected before the final adjudication of the matter, does not defeat a pre-emption suit where the subsisting right requirements are otherwise satisfied at the crucial stages.
- Whether a pre-emptor maintains a subsisting right of pre-emption when an intermediate eviction order is subsequently set aside by the Board of Revenue?
- Does a momentary loss of possession during the pendency of appeal proceedings irreversibly defeat a pre-emption suit?
- At what critical stages must a pre-emptor possess a subsisting right to succeed in a pre-emption suit?
' IRSHAD HASAN KHAN, J.---This petition for leave to appeal is directed against the judgment dated 25-5-1999 passed by a Single Judge of the Lahore High Court, Lahore in R.S.A. No,277 of 1977.
2. Brief facts of the case are that the respondent filed a pre-emption suit, which was dismissed by the learned Trial Court, Faisalabad, by judgment and decree dated 22-3-1976. On appeal filed by the plaintiff/ respondent the suit was decreed by the learned District Judge, Faisalabad, vide judgment dated 30-3-1977. The regular second appeals filed by the defendants in the High Court stood dismissed vide impugned judgment dated 25-5-1999. The learned Judge in Chambers, in view of the material available on record, took the view that the final judgment and decree, even though of dismissal, had been passed on 22-3-1976 by the trial Court, while the ejectment order of the pre-emptor-plaintiff (tenant), on the revenue side, had been secured subsequently on 13-5- 1976, which, too, was set aside by the Board of Revenue, at a time the matter was pending in the High Court. In this background, the High Court was right in holding that the plaintiff could not be said to have lost his superior right at the third stage, A particularly when the decree in the suit had preceded the initial order of eviction in the Revenue jurisdiction. Additionally, while the defendants in execution of such order, dated 13-5-1976. Ejected the plaintiff from the land in dispute and the latter was not in possession at the time of filing the appeal on 22-5-1976 in the Court of Additional District Judge, and the decision of appeal on 30-3-1977, the situation got revived when the said order dated 13-5-1976 was, during the pendency of the High Court proceedings, set aside by the Board of Revenue.
3. When faced with this, Mr. S.M. Rashid learned counsel for the petitioner placed reliance on Hasil v.
Karam Hussain Shah (1995 SCM R 1385). The above decision does not favour the petitioner. It is clearly laid down therein that the pre-emptor, in order to succeed in a pre-emption suit, should have a subsisting right. At three stages namely, on the date of the sale, on the date of institution of the suit and the date of passing of decree. The impugned order is, in no way, in conflict with the rule laid down in the above case.
4. It may also bear mention here that the distinction drawn in the precedent case between a positive and a negative decree (of dismissal) has relevant, essentially in cases where the party concerned (plaintiff whose suit was dismissed) lost the right to pre-empt irreversably and has little significance in cases of momentary loss but subsequent revival of the right. As already seen, the pre-emptor's right was resurrected, while the proceedings were pending, with the Board of Revenue recalling his eviction.
5. Resultantly, the petition for leave to appeal is dismissed and leave declined.
Cited by 2 cases
- ATTA MUHAMMAD vs MUHAMMAD BAKHSH and another 2004 PLJ Lahore 689
- ATTA MUHAMMAD Versus MUHAMMAD BAKHSH 2004 PLD 300