Muhammad Rasool vs Aslam Khan

2012 C L C 637

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MUHAMMAD RASOOL----Petitioner

versus

ASLAM KHAN and 3 others----Respondents

Civil Revision No.739 of 2011, decided on 7th October, 2011.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 8, 9 & 20---Suit for pre-emption---Distribution of suit property, in case of more than one person equally entitled---Class or group of persons could jointly exercise their right of pre- emption and in case where more than one person had the same right of pre-emption, then the suit property would be equally distributed amongst all such persons---Provisions of S.8 of North- West Frontier Province Pre-emption Act, 1987 related to the pre-emptors (more than one) having the similar rights could jointly and severally claim their rights of pre-emption---When pre- emptor and the vendee had equal and similar rights of pre-emption, then the property under pre- emption would require to be distributed between them equally---When there was one pre-emptor and one vendee having similar right of pre-emption, then the provisions of S.20 of North-West Frontier Province Pre-emption Act, 1987 could be applied by distributing the property in two equal shares---When there were more than one pre-emptor and more than one vendee on the same pedestal, then property between all the persons on the same footing would be distributed between them in equal shares, and not in the ratio of 1/2 + 1/2 in favour of pre-emptors and the vendees by ignoring their total strength---In the present case there being one pre-emptor and four

vendees, the simple distribution of the property in two equal shares between them would not be correct approach and not permissible under the law---All of them would get equal shares as per capita---Petition was dismissed.

Muhammad Hayat v. Faiz Ali and another 2002 MLD 938 and Muhammad Khan and 9 others v. Ameer Khan Gaddi Baloch 2008 YLR 296 ref.

Abdul Latif v. Shaukat Ali and 2 others 2006 MLD 735; Sarfaraz Khan v. Niamatullah Khan 2002 SCMR 751 and Khan Gul Khan and others v. Daraz Khan 2010 SCMR 539 rel.

Syed Muhammad Atliq Shah for Petitioner.

Aseel Khan Khattak for Respondents.

Date of hearing: 7th October, 2011.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.--- The plaintiff/ petitioner feeling himself aggrieved of the judgment and decree of appellate Court dated 7-3-2011 whereby appeal of the vendee/defendants against the judgment and decree dated 17-12-2009 was allowed and grant of decree of 1/2 share of the suit property in favour of pre-emptor petitioner as per section 20 of N.- W.F.P. Pre-emption Act, 1987 was modified to one as per capita of the parties, has filed instant revision petition.

2.The learned counsel for the plaintiff/petitioner mainly contended that he being pre-emptor in the case was entitled to the grant of decree to the extent of half of the property under section 20 of the N.-W.F.P. Pre-emption Act and submitted that the findings of the appellate Court by declaring him entitled to the decree of the suit-land as per capita along with the vendee respondents was against the provisions of section 20 of the Act ibid by placing reliance on

Muhammad Hayat v. Faiz Ali and another (2002 MLD 938) and Muhammad Khan and 9 others v. Ameer Khan Gaddi Baloch (2008 YLR 296) and Abdul Latif v. Shaukat Ali and 2 others (2006 M L D 735).

3.As against that, the learned counsel for the vendee/respondents submitted that the findings of the appellate Court were in accordance with the provisions of N.-W.F.P. Pre-emption Act and the parties were declared to get decree as per capita and placed reliance on Sarfaraz Khan v. Niamatullah Khan (2002 SCMR 751) and Khan Gul Khan and others v. Daraz Khan (2010

SCMR 539).

4.Learned counsel for the parties were heard and record of the case was perused.

5.Before discussing the merits of the case, it would be appropriate to reproduce the relevant provisions of N.-W.F.P. Pre-emption Act 1987.

"8. Joint right of pre-emption how exercised.--- 2 Where a right of pre-emption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly, and if not exercised by them all jointly, by any two or more of them jointly, and if not exercised by any two or more of them jointly, by them severally.

9.Method of distribution of the property where more than one person equally entitled.--- 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.

20.Where the pre-emptor and vendee equally entitled.--- Where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by them equally."

6.A look at the above provisions of law would reveal that a class or group of persons can jointly exercise their right of pre-emption and in case when more than one person has the same right of pre-emption, then the suit property would be equally distributed amongst all such persons. The provisions of section 8 are only with regard to pre-emptors that in case of more than one having

the similar rights can jointly and severally claim their rights of pre-emption. But in case of pre- emptor and the vendee having equal and similar rights of pre-emption, then the property under pre-emption requires to be distributed between them equally. For this purpose, one has to read the provisions of sections 9 and 20 of the Act, 1987 in conjunction and independent reading would be confusing one. Yes, when there is one pre-emptor and one vendee having similar right of pre-emption, then the provisions of section 20 ibid can safely be applied by distributing the property in two equal shares. But when there are more than one pre-emptor and more than one vendee on the same pedestal, then what should be the ratio of distribution according to law. The reading of the above provisions of law in conjunction would make it clear that the property between all the persons on the same footing would be distributed between them in equal shares and not in the ratio of 1/2 + 1/2 in favour of pre-emptor and the vendees by ignoring their total strength. Here in this case, there is one pre-emptor and four vendees. So, the simple distribution of the property in two equal shares between them would not be correct approach and not permissible under the law. All of them would get in equal shares. Findings of this Court would also get support from the decisions of the apex Court in the cases of Sarfaraz Khan and Khan Gul Khan (supra). The case of Abdul Latif relied upon by the learned counsel for the petitioner is also based on the same ratio and would not be helpful to him. When this is the situation, then the pre-emptor and the vendee would get the suit property equally distributed between them as per capita.

7.So, in this view of the matter, the findings of the appellate Court appear to be in accordance with law, hence, call for no interference. Instant2revision petition for the reasons stated above, is dismissed as such leaving the parties to bear their own costs.

H.B.T./327/P Petition dismissed.