Pakistan Case LawWALI MUHAMMAD through his Legal Heirs Versus REHMAT ALI
This petition challenged a Lahore High Court judgment that upheld concurrent findings of lower courts decreeing a suit for pre-emption. The petitioner argued that the suit was bad for partial pre-emption because the plaintiff failed to include the 'Wari Chah' (water right) in the plaint, which was allegedly sold along with the land. The Supreme Court examined whether the omission of the water right constituted partial pre-emption. The Court noted that the counsel for the petitioner conceded the plaintiff had offered the full price for the land. Furthermore, the Court found that the 'Wari Chah' was not situated within the boundaries of the land sold but was an appurtenant right to cultivate the land from an adjacent well. The Court held that since the plaintiff had pre-empted the entire land and would enjoy all rights and liabilities appurtenant thereto, the suit was not one of partial pre-emption. Consequently, the petition was dismissed as the impugned judgments suffered from no legal infirmity.
- Does the failure to specifically mention an appurtenant water right in a pre-emption plaint constitute partial pre-emption?
- Is a suit for pre-emption considered partial if the plaintiff offers the full price of the land sold?
- Can a right to cultivate land from an adjacent well be considered part of the land sold for the purposes of pre-emption?
ORDER
This petition is directed against the judgment, dated 23-2-1988 of the Lahore High Court, Lahore through which R.S.A. No,226 of 1982, against the concurrent judgments and decrees of the Courts- below decreeing the suit of the respondent for pre-emption has been dismissed. The suit was contended, by the petitioner on variety of grounds inclusive of partial preemption. Learned counsel for the petitioner since during arguments before us frankly conceded that the only point on which he would pray for grant of leave to appeal is that of partial pre-emption, therefore, we are not called upon to adhere to the other grounds which have been taken. His case was that the land has been sold alongwith Wari Chah, therefore, the respondent/plaintiff was required to pre-empt whole of it whereas he did not mention in the plaint Wari Chah, therefore, it should have been deemed to have been a suit for partial pre-emption. Learned counsel to a question conceded that the respondent had offered the whole of the price of the land at which it was sold. When further questioned, he admitted that the [Urdu text] to which the Wari Chah is related is not situated within the boundaries of the land sold whereas it is situated on the adjacent land and the land in dispute had a right of cultivation from this [Urdu text] therefore; it is only a right to cultivate the land from the said Kunwa which is attached with the land in dispute. In this view of the matter no ground for interference could be made out as it is a suit for pre-emption and whatever rights and liabilities are attached appurtenant to the land in dispute the same would be enjoyed by the respondent who has pre-empted the whole of the land sold.
2.The judgments impugned in this petition do not suffer from any legal infirmity, therefore, we are not inclined to grant leave, consequently, this petition is dismissed.
Judges on this bench
- Munir A. Sheikh1,362 judgments
- Mian Muhammad Ajmal831 judgments