Siraj Hussain Vs Aashiq Hussain

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

C.R. No.1138-P of 2019 with CM No.1504-P of Siraj Hussain VS. Aashiq Hussain & others

JUDGMENT

Date of hearing: 01.11.2019

Mr. Bashir Khan Wazir, Advocate, for petitioner.

AHMAD ALI, J.- The petitioner preferred present Civil Revision against the Order dated 19.09.2019 passed by the learned Additional District Judge-II /Model Civil Appellate Court, Kurram, whereby the appeal filed by petitioner was dismissed.

2.Brief and essential facts, necessary for the disposal of the present civil revision, are that the brother of petitioner namely Naimat Ali, in February-2016 sold his property to Aashiq Hussain, respondent No.1, and the respondent

No.2 filed a pre-emption suit against said respondent No.1 before the then Political Administration of erstwhile Kuram Agency.

Thereafter, parties (i.e. pre-emptor and vendee) privately patched up the matter whereby rights of pre-emptor Hussain Jan were admitted by the vendee Aashiq Hussain and on the basis of said compromise the then political administration passed a pre-emption decree in favour of Hussain Jan (the respondent No.2) vide order dated 27.07.2016. On 21.07.2019 the father of petitioner submitted application to the FCR Commissioner Kohat seeking the return of property to him and expressed his readiness to pay the price of land to Hussain Jan. Thereafter on 14.01.2018, the petitioner filed pre-emption suit against Hussain Jan before APA Upper Kurram. Tehsildar Kurram submitted a detailed report dated 08.08.2017 wherein he mentioned the factum of previous litigation. The APA Upper Kurram recorded his finding/order dated 22.08.2018 in the footnote of said report and thereby consigned the pre-emption suit of

petitioner being already decided matter. The petitioner preferred an appeal which too was dismissed by the learned Additional District Judge-II Kurram vide judgment dated 20.09.2019. Hence, the present petition.

3.Arguments heard and record gone through.

4.Meticulous sifting of the record reveals that the property was sold by the brother of petitioner to respondent No.1 and thereafter the said property on the basis of consent pre-emption decree was decreed in favour of respondent No.2 vide decree dated 27.07.2016. After that on 14.01.2018 petitioner filed a pre-emption suit again respondent No.2 before the then APA Upper Kuram. However, the suit of petitioner was filed vide order dated 22.08.2018 without any further proceedings. Interestingly, the petitioner filed an appeal only against the pre- emption decree dated 27.07.2016 and did not challenge the vires of order dated 22.08.2018 as to dismissal of his suit. Similarly, before this Court too, the petitioner has not challenged the

order dated 22.08.2018, and instead he challenged the pre-emption decree dated 27.07.2016 and the Judgment dated 20.09.2019 of learned appellate court below.

5.Yet there is another devastating aspect of the petitioner case i.e. the petitioner in his suit only arrayed respondent No.2 as defendant. After consignment of the suit, he filed appeal wherein he, by himself and without the permission of court, introduced the respondent No.1 as a party to the appeal. Then after dismissal of his appeal, petitioner took another step by arraying respondent No.3 as party to Civil Revision. This conduct on the part of petitioner is not bearable at all.

6.There is no cavil to the proposition that a decree cannot be challenged through a suit.

Moreover, no pre-emption suit does lie against a pre-emption decree. It is an undeniable fact that the petitioner filed a pre-emption suit over a pre- emption decree against Hussain Jan (pre-emption decree-holder), and this suit was filed by the

APA Kurram vide order dated 22.08.2018 but petitioner has not challenged the same. Instead in the appeal and in present petition as well, petitioner switched to another prayer seeking cancellation of the pre-emption decree despite the fact in his plaint no such prayer was made.

7.As discussed above, the petitioner has deceitfully arrayed respondents No.1 & 3 as party despite the fact that they were not parties to the suit. Besides, petitioner filed pre-emption suit against a sale based on previous pre-emption decree. Moreover, he has not called in question the vires of the order dated 22.08.2018 vide which his pre-emption suit was consigned to record room without any further proceeding.

Instead, he preferred a time-barred appeal on 18.07.2019 against pre-emption decree dated 27.07.2016 i.e. after a lapse of about three years.

8.The learned appellate court below has properly appreciated the facts & circumstances of the case and arrived at a just and proper conclusion of the appeal. The present Civil

Revision being devoid of merits is dismissed in limine with cost of Rs.5,000/-.

Announced

JUDGE

SB Hon’ble Mr. Justice Ahmad Ali