SARFARAZ KHAN vs NIAMATULLAH KHAN

' SARDAR MUHAMMAD RAZA KHAN, J.---Sarfaraz Khan son of Muzaffar Khan of Village Abbasa, Tehsil and District Lakki Marwat, seeks leave to appeal against the judgment dated 8-2-2001 of the Peshawar High Court, Circuit Bench, D.I. Khan passed in Civil Revision No,44 of 2000.

2. Through Mutation No,12529 attested on 19-8-1997, petitioner Sarfaraz Khan had purchased two Kanals of land which stands successfully pre-empted by respondents Niamatullah Khan through a decree dated 27-7-1999 of Civil Judge, Lakki Marwat against which the appeal filed before the Additional District Judge was dismissed on 24-1-2000. The revision before the High Court was also dismissed with certain modification in the amount to be paid by the pre-emptor, vide the impugned judgment dated 8-2-2001.

3. The pre-emption decree is assailed before us on two-fold grounds, firstly, that no doubt the pre- emptor had a superior right of pre-emption through contiguity but the vendee also had become contiguous owner through sale and thus, the pre-emptor failed to maintain his superior right at three stages, of the time of sale, the institution of suit and the passing of decree. The second ground was that the pre-emptor had failed to perform Talb-i-Muwathibat in accordance with law and thus, his very right of preemption is not activated.

4. So far the second objection is concerned, it is a question of fact which in the light of evidence is rightly answered in positive by all the three Courts below and hence we decline to interfere, particularly when the finding also happens to be in accordance with evidence.

5. Coming to the equal right claimed by the vendee, we have no doubt in our mind that joint right of pre-emption can be exercised by a person, by a class or group of persons either jointly or severally as provided under section 8 of the N.-W.F.P. Pre-emption Act; 1987. We are also mindful of the fact that under section 9 of the Act, where more than one person are found by the Court to be equally entitled to the right of pre-emption the property shall be distributed amongst them in equal shares. In the instant case, there is no rival suit before us but the vendee claims improvement in his status which is unequivocally explained by section 22 of the Act which lays down that no improvement made in the status of a vendee shall be taken into consideration if made after the institution of suit for pre-emption. Before us, the learned counsel for the petitioner has very candidly admitted that the contiguous property was purchased by the vendee during the pendency of present suit for pre-emption. We are afraid, the vendee can derive no premium therefrom.

6. In the circumstances, the three Courts below have rightly decreed the suit against the petitioner/vendee. Leave to appeal is declined and the petition is hereby dismissed.