Hassan Hafeez & 3 others through Attorney Vs Muhammad Ishtiaq

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

C.R. No.76980 of 2024

Hassan Hafeez, etc.

Versus Muhammad Ishtiaq

JUDGMENT

Date of hearing: 28.01.2026.

Petitioners by: Mr. Tahir Munir Malik, Advocate.

Respondent by: Mr. Khurram Shahzad Baig, Advocate.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through the instant revision petition, the petitioners have assailed the vires of the judgment dated 08.11.2024, passed by the learned Additional District Judge, Pattoki, whereby the respondent’s appeal against the order of the learned Trial Court dated 14.03.2024 was allowed with the direction to requisition the original case file and proceed with the suit in accordance with law.

2.The factual matrix is that the respondent filed a suit for possession through pre-emption in respect of the suit property, detailed in the plaint, claiming his superior right of pre-emption. The petitioners contested the suit, asserting that the suit constituted partial pre- emption, which is barred under Section 19(2) of the Punjab Pre- emption Act, 1991 (“the Act of 1991”). The learned Trial Court accepted this contention and rejected the plaint under Order VII, Rule 11(d) CPC, holding that the suit did not challenge the entire sale transaction. On appeal, the learned Appellate Court reversed the Trial Court’s decision, holding that the respondent was entitled to maintain the suit, being a co-owner (Shafi-Sharik), adjacent owner (Shafi-Jar),

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and having participatory rights (Shafi-Khalit) in the property, vide judgment dated 08.11.2024. Hence, the instant revision petition.

3.Learned counsel for petitioners contends that the appellate court erred in law by allowing partial pre-emption. He argues that a pre- emptor cannot selectively challenge part of a sale transaction and that the entire property sold must be made subject to the claim. Reliance is placed on precedent to the effect that a pre-emption suit must cover the entire property sold. Reliance is placed on Ghulam Muhammad and 3 others v. Khushi Muhammad and another (PLD 1973 SC 444), Samar Qand and another v. Muhammad Yunis (PLD 1972 Peshawar 115), Muhammad Rafique v. Qurban Hussain (2015 YLR 357) and Muhammad Sharif and another v. Muhammad Aslam (2015 YLR

4.On the other hand, learned counsel for respondent submits that the suit is legally maintainable, all statutory requirements have been fulfilled, and the pre-emption right extends over the entire transaction mentioned in the sale deed, not just a portion. Reliance is placed on Muhammad Ali v. Muhammad Anwar (2005 CLC 603).

5.Arguments heard. Record perused.

6.The record shows that while the parties initially agreed to sell land measuring 17 Kanals 16 Marlas, the transaction was ultimately completed through two separate sale deeds executed on the same date:

(i)Sale Deed No. 2240 covering 8 Kanals 16 Marlas, described as agricultural land; and (ii) Sale Deed No. 2241 covering 9 Kanals, described as industrial/commercial land. Each sale deed represents an independent conveyance. Since the property covered by Sale Deed No. 2241 is industrial in nature, it was not legally subject to pre-emption. Consequently, the respondent was neither required nor entitled to include it in the suit. Section 19(2) of the Act of 1991 cannot be interpreted to compel a pre-emptor to claim property over which no right of pre-emption exists. The statutory requirement applies only to

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the entirety of the pre-emptible property, not to non-pre-emptible property transferred simultaneously.

7.The petitioners' principal objection is that the respondent sought pre-emption only for the 8 Kanals 16 Marlas comprised in Sale Deed No. 2240 dated 26.09.2023, while failing to challenge the 9 Kanals transferred through Sale Deed No. 2241 of the same date. According to the petitioners, this omission renders the suit defective under Section 19(2) of the Act of 1991, which provides:

"The claim for pre-emption shall be made on the whole property pre- emptible."

8.The controversy therefore, turns on the proper interpretation of the phrase "whole property pre-emptible." The provision requires a pre-emptor to claim the entirety of property that is legally amenable to pre-emption. It does not mandate the inclusion of property which, by operation of law, is not pre-emptible. The doctrine against partial pre- emption applies where a single, indivisible, pre-emptible property is divided and only a portion is claimed. It does not apply where distinct properties, differing in legal character, are conveyed through separate instruments and only one falls within the scope of pre-emption.

9.It is well established that industrial or commercial property does not attract the right of pre-emption. The Federal Shariat Court in Hafiz Muhammad Ameen v. Islamic Republic of Pakistan (PLD 1981 FSC 23) held that the right of pre-emption is confined to immovable property of the nature recognized under Islamic jurisprudence, such as houses, gardens, and agricultural land, and does not extend to commercial properties like shops and similar establishments. This principle has been consistently followed by the superior courts, including in Abdul Majid through Legal heirs and 4 others v. Sheikh Qamar Hussain through Legal heirs and another (1998 CLC 990), Ubaid Ullah Jan v. Mumtaaz Khan and 3 others (2016 YLR Note 65), and Abdul Qayyum Khan v. Sheikh Muhammad Azeem through Legal Heirs (2017 CLC Note 99), Mohammad Rafique v. Gul Mohammad

C.R. No.76980 of 2024

and others (2017 YLR 308) and Altaf Ahmad v. Muhammad Anwar and others (2023 YLR 1972).

10.The learned Trial Court, in rejecting the plaint under Order VII Rule 11(d), CPC, proceeded on the mistaken assumption that failure to challenge both sale deeds amounted to partial pre-emption. In doing so, it failed to distinguish between (i) the splitting of a single pre-emptible transaction, and (ii) the exclusion of property not amenable to pre- emption by operation of law. The precedents concerning partial pre- emption of homogeneous agricultural property were therefore misapplied. The learned Appellate Court rightly appreciated this crucial distinction and correctly held that the respondent had confined his claim to the entire pre-emptible property comprised in Sale Deed No. 2240. Since the industrial land was legally excluded from the scope of pre-emption, its omission did not render the suit defective under Section 19(2) of the Act of 1991.

11.The impugned judgment suffers from no misreading or non- reading of evidence, no jurisdictional defect, and no material irregularity. The interpretation of Section 19(2) of the Act of 1991 is consistent with both the statutory language and the settled principles governing the right of pre-emption. No ground for interference in revisional jurisdiction has been established.

12.Resultantly, the instant revision petition, being devoid of merit, is hereby dismissed. No order as to costs.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*Sultan*