ALLAH RAKHA vs MUHAMMAD BOOTA
This petition for leave to appeal challenged a Lahore High Court judgment that dismissed the petitioners' Regular First Appeal regarding a pre-emption suit. The petitioners had sought to pre-empt a land sale, claiming a preferential right based on ownership of contiguous land and shared amenities, while alleging the sale price was inflated to defeat their claim. The trial court dismissed the suit, finding that the suit was improperly valued for court-fee and jurisdiction, that the petitioners failed to prove the performance of Talbs, and that one petitioner had lost their right by joining with a stranger who lacked preferential status. The High Court affirmed these findings, noting the absence of evidence regarding the performance of Talbs by the petitioners. The Supreme Court upheld the lower courts' decisions, finding the judgments exhaustive and well-founded. The Court held that the petitioners failed to establish the necessary legal requirements for pre-emption, specifically the performance of Talbs, and that the appellate court correctly assessed the evidence regarding the lack of preferential rights, leading to the dismissal of the petition.
- Does a pre-emptor lose their right of pre-emption by joining with a stranger who lacks a preferential right?
- Is the failure to prove the performance of Talbs fatal to a suit for pre-emption?
- Can a court dismiss a pre-emption suit on the grounds of improper valuation for court-fee and jurisdiction?
' MIAN MUHAMMAD AJMAL, J.---The petitioners seek leave to appeal against the judgment of the Lahore High Court, Lahore dated 11-2-2002, whereby Regular First Appeal No,35 of 1995, filed by the petitioners was dismissed.
2. The respondents purchased land measuring 99 Kanals from Syed Sabir Hussain Shah vide registered sale-deed dated 27-8-1992 for sale consideration of Rs,4,00,000. The petitioners pre- cmpted the above sale through a suit alleging therein that the actual sale price was Rs,2,48,000 whereas Rs,4,00,000 was shown to defeat their right of pre-emption. The preferential right was claimed on the ground of being owners of contiguous land and sharer in the amenities.
Performance of the Talbs was also pleaded. The respondents contested the suit and objected that the suit had not been properly valued for the purpose of court-fee and jurisdiction and that Talbs have not been made as required by law. They averred that they paid Rs,4,00,000 which was fixed in good faith. On divergent pleadings of the parties, the trial Court framed necessary issues, recorded evidence of the parties and after hearing learned counsel for the parties dismissed the suit vide its judgment dated 20-12-1994 holding that the suit has not been properly valued for the purpose of court-fee and jurisdiction, that petitioner No,1 and respondent No,2 had equal rights whereas petitioner No,2 had no preferential right and petitioner No,1 by joining with a stranger has lost his right of preemption; that the petitioners failed to prove that Talbs were made as required under the law, and that Rs,4,00,000 had been actually paid as price of the land.
3. Feeling aggrieved the petitioners filed Regular First Appeal No,35 of 1995 before the Lahore High Court, Lahore which also met the same fate vide judgment of a learned Division Bench of the High Court dated 11-2-2002, impugned herein.
4. Learned counsel for the petitioners contended that the Courts below did not afford ample opportunity of hearing to the petitioners and thus violated the principle of natural justice. He further contended that the learned High Court endorsed the findings of the trial Court without application of judicial mind.
5. We have heard the learned counsel for the petitioners and have gone through the record of the case. The contentions raised by the learned counsel are devoid of any substance, inasmuch as, the petitioners have been heard by both the Courts as both the judgments are exhaustive and well- founded. The trial Court has discussed both oral and documentary evidence in detail while dismissing the suit of the petitioners. The learned High Court also after assessing the evidence on record held that Hameeda Bibi, petitioner No,2 had no preferential right qua the respondents, therefore, petitioner No,1 would sink with her. As far as the Talbs are concerned the learned High Court after elaborately discussing the evidence on record observed that "there is no evidence as to the making of Talb by Hameeda Bibi so far as the statement of P.W .5 is concerned that he had made a statement for both the appellants, the same is belied by other witnesses". The learned High Court further observed that "there is nothing in evidence about any notice having been sent by Allah Rakha appellant to the vendees" which leads to an inference that the petitioners failed to fulfil the requirement of Talbs in accordance with law. The plea of the learned counsel for the petitioners that they have not been properly heard is devoid of any substance and is negated by the material on record. Consequently, this petition being without any merits is dismissed and .