PLJ 2012 SC 130
N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
----S. 20--Constitution of
ILR 19 A 466, 1994 SCMR 279, 2010 SCMR 539, ref.
Mr. Gulzarin Kiani, Sr. ASC and Mr. M.S. Khattak, AOR for Appellants.
Kh. Muhammad Farooq, Sr. ASC for Respondent.
Date of hearing: 15.6.2011.
PLJ 2012 SC 130
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ. Tariq Parvez Khan & Amir Hani Muslim, JJ.
FAIZULLAH KHAN and others--Apellants
versus
Haji ABDUL HAKEEM KHAN--Respondent
heard on 15.6.2011.
(On appeal from the judgment dated 29.12.2010 passed by the Peshawar High Court, D.I. Khan Bench passed in Civil Revision Nos. 240, 241, 242 of 2005).
Judgment
Iftikhar Muhammad Chaudhry, CJ.--Above noted direct appeal under Article 185(2)(d) of the Constitution as well as the petitions for leave to appeal have arisen from the judgments dated 29.12.2010 passed by the Peshawar High Court, D.I.Khan Bench, separately, in Civil Revisions No. 240/2005, 241/2005 and 242/2005, covered by Civil Petitions No. 159 & 160/2011 and Civil Appeal No. 87/2011 respectively.
2. In all these cases respondent/pre-emptor instituted three Suits Bearing Nos. 37/1, 38/1 and 39/1 for possession of the property by way of pre-emption. The land, subject matter in all the three cases, situated at Mouza Pai, Tehsil & District Tank Bearing Khata No. 372 (Khasra Nos. 3725, 3726, 3729, 3730, 3731, 3732, 3733/1, 3733/2), Khata No. 373 (Khasra No. 1579, 1580), Khata No. 389-390 and Khata No. 555, was sold to vendees i.e. Faizullah Khan, Saadullah Khan, Shah Nawaz Khan, Falak Naz Khan, Rehmatullah Khan all sons of Muhammad Naeem Khan, details of which as mentioned in the respective suits are as under:--
Suit No. 37/1 The land measuring 130 Kanals, 16 Marlas, transferred by Mst. Naseem Bibi etc. in favour of appellants/ petitioners vide Mutation No. 374 attested on 30.9.2000.
Suit No. 38/1 The land measuring 144 Kanals and 5 Marlas transferred by LRs. of one Shahnawaz Khan in favour of appellants/petitioners vide Mutation No. 195 attested on 30.10.1999.
Suit No. 39/1: The land measuring 294 Kanals, 6 Marlas transferred by the LRs. of Muhammad Nawaz Khan in favour of petitioners vide Mutation No. 286 attested on 28.7.2000.
3. As per the plaints the respondent claimed himself to be vested with superior right of pre-emption in respect of suit lands and the moment he came to know about the fact that bargain has been struck, immediately he made Talb-e-Muwathibat followed by Talb-e-Ishhad through issuance of notices and subsequent thereto filed above mentioned suits. The petitioners/defendants contested the suits as they submitted written statements but without claiming right of pre-emption even vendees being joint Khatadars in one Khata No. 372.
4. However, the trial Court framed issues in each case which were somehow similar, therefore, issues framed in Suit No. 39/1 are reproduced hereinbelow:--
(1) Whether the plaintiff has got the cause of action?
(2) Whether the suit of the plaintiff is time-barred?
(3) Whether the plaintiff has made talbs in accordance with Section 13 of the N.W.F.P Pre-emption Act, 1987?
(4) Whether the plaintiff has got the superior rights of pre-emption?
(5) Whether the defendants have made an improvement on the suit land?
(6) Whether plaintiff's suit is liable to be dismissed due to non-payment of Court fee?
(7) What is the market value of the suit land?
(8) Whether the plaintiff is entitled to the decree asked for?
(9) Relief.
5. After recording of evidence, learned trial Court vide separate judgments dated 13.11.2003, decreed the suits to the following effects:--
Suit No. 37/1:
Findings on Issues No. 1 & 4: .....Thus, in view of the above discussion, it stands proved that the parties have been contiguous owners of the suit property. Hence, on account of equal rights, this land 39 Kanals and 18 Marlas Bearing Khata No. 372 would be equally distributed between both the parties. Thus, both the issues are answered in affirmative.
Relief: As sequel of my findings on various issues, it is concluded that the plaintiff has succeeded to establish his case. I, therefore, pass a decree for possession through pre-emption in respect of land measuring 110 Kanals, 17 Marlas in favour of the plaintiff and against the defendants with a sale price of Rs. 1,59,459/94 Paisas. While, to the extent of 19 Kanals, 19 marlas on account of equal right, the suit stands dismissed. As pre-emption money of Rs.2,11,517/- already deposited is even more than market value, therefore, the plaintiff can withdraw balance deposited in excess. Parties are left to bear their own costs.
Suit No. 38/1:
Findings on Issue No. 1: ......In these circumstances, it stands proved that the plaintiff is vested with superior right as compared to defendants except in few Khasra numbers, as mentioned herein before Bearing Khata No. 372, wherein both the parties have been proved to be the contiguous owners. Thus, on account of equal right, this land measuring 44 Kanals 18 Marlas Bearing Khata No. 372 would be equally distributed between both the parties. In these circumstances, the issue is answered in affirmative.
Relief: As sequel of my findings on various contentious issues, it is concluded that the plaintiff has succeeded to establish his case. I, therefore, pass a decree for possession through pre-emption in respect of land Measuring 121 kanals, 16 marlas in favour of plaintiff and against the defendants with a sale price of Rs.54,030/48 paisas while to the extent of land measuring 22 kanals 9 marlas on account of equal right, the suit stands dismissed. As pre-emption money of Rs.3,34,000/- already deposited in even more than market value, therefore, the plaintiff can withdraw balance deposited in excess. Parties are left to bear their own costs.
Suit No. 39/1:
Findings on Issues No. 1 & 4: ....Hence on account of equal right, this land measuring 93 Kanals & 17 Marlas Bearing Khata No. 372 would be equally distributed between both the parties. Thus, both the issues are answered affirmative.
Relief: As sequel of my findings on various issues, it is concluded that the plaintiff has succeeded to establish his case, I, therefore, pass a decree for possession through pre-emption in respect of land measuring 247 kanals and 8 Marlas in favour of the plaintiff and against the defendants with a sale price of Rs.3,34,732/-. While, to the extent of 46 Kanals & 18 Marlas on account of equal right, the suit stands dismissed. As pre-emption money of Rs.6,66,667/- already deposited is even more than market value, therefore, the plaintiff can withdraw balance deposited in excess. Parties are left bear their own costs.
6. The petitioners filed appeals before the District Judge, whereas the respondent filed cross objections to the extent of value of the property. The District Judge disposed of the appeals of the petitioners vide judgment dated 28.3.2005, concluding para therefrom is reproduced hereinbelow:--
"ISSUE # 1 & 6: Patwari Halqa while appearing as CW-1 produced goshawara-e-malkiyat of the parties and according to goshawara-e-malkiyat, the plaintiff and defendant both are contiguous owners of the suit land comprising Khata # 373, 389 & 390 hence, the learned lower Court was justified in holding that the plaintiff and defendant both have got equal pre-emption rights in Khata @ 372 and that plaintiff was having superior pre-emption right in Khata # 373, 389 & 390 and that the defendants were stranger in these three Khatas, however, the record further reveals that the lower Court has also passed decree in favour of plaintiff against the defendants in Khata # 555 while according to goshawara-e-malkiyat, the plaintiff is neither co-sharer, nor contiguous owner to this Khata nor have any other-rights as Shafie Khaleet, therefore, the plaintiff was not entitled for decree to the extent of Khata # 555.
...........In the light of what has been stated above, I partially accept the instant appeal and modified the judgment and decree of the learned lower Court to the extent that the plaintiff is not entitled to the decree in respect of land comprising Khata # 555 and in Khata # 372........."
7. Being aggrieved of the judgment of the District Judge, the appellants/petitioners approached the High Court by means of Civil Revisions Nos. 40 to 42 of 2005. The learned High Court vide separate judgments dated 29.12.2010 dismissed all the Civil Revisions, however, in Civil Revision No. 42/2005, certain modifications were made in the judgment/decree of the appellate Court to the extent of area of land, which was the entitlement of the respondent/pre-emptor. Hence the instant appeal and petitions.
8. Learned counsel for the appellants/petitioners submitted that land was sought to be pre-empted in three Khatas Bearing Khata Nos.372, 373, 389/390 and 555; out of land sold from Khata No. 372, pre-emptor as well as vendees, who are brothers inter se (five in number), were found at par with each other being contiguous owners and the same was ordered to be divided equally; whereas, in terms of Section 20 of the NWFP Pre-emption Act, 1987 [hereinafter called as "the Act, 1987"], the distribution of pre-emptive property between equi-classed pre-emptor and vendees would be per capita amongst them. According to him in case of more than one vendee or more than one pre-emptor, the property would be distributed amongst all of them equally. To substantiate his arguments, learned counsel relied upon the cases reported as Amir Hasan v. Rahim Bakhsh and others (ILR 19 All. 466), T. Rajaram v. Radhakrishnayya (AIR 1961 5C 1795), Muhammad Hanif v. Sultan (1994 SCMR 279) and Khan Gul Khan v. Daraz Khan (2010 SCMR 539).
9. Learned counsel for the respondent at the very outset stated that there is no dispute regarding Khata No. 555. He, however, contended that in view of the law laid down by this Court in Muhammad Tariq v. Asif Javed (2009 SCMR 240), when the Courts below had declared that both the pre-emptors and the vendees are entitled to the land in Khata No. 372 the property shall be divided equally between appellants and respondent i.e. 50-50 as both of them belong to separate classes i.e. `pre-emptor' and `vendee'. He further contended that the appellants/defendants, in their written statement, did not raise the plea of having equal right of pre-emption with pre-emptor; therefore, they were not entitled to get the benefit of Section 20 of the Act, 1987.
10. We have heard learned counsel for the parties and have gone through the judgments of the Courts below as well as the case-law cited at the Bar.
11. The question for consideration before this Court is the mode of distribution of pre-empted land between the vendee and pre-emptor where there are more than one vendees or pre-emptors and they have equal right of pre-emption following within the same clause.
12. In the first instance, it would be advantageous to have a glance at Section 20 of the Act, 1987 which reads as under:--
"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 or pre-emption, the property shall be shared by them equally."
13. The Amir Hasan's case is the basic judgment on the subject wherein Allahabad High Court has held as under:--
"These texts, the authority of which has not been questioned by Mr. Abdul Majid on behalf of the respondents, establish, as we have said two, propositions; first, that even when the buyer is himself a pre-emptor, that is, a person who would have the right of pre-emption against an outsider, other persons having a similar right of pre-emption are entitled to claim pre-emption against the buyer; and, secondly, that in such a case the rights of the claimants to pre-emption should be determined in the same way in which they would have been determined, had the buyer acquired the property by enforcing his right of pre-emption against a stranger, in the absence of the other pre-emptors and the absentee pre-emptors had appeared subsequently and claimed pre-emption. In this view, as all persons having equal right of pre-emption are only entitled under the Muhammadan law to divide the property equally per capita, and as the purchasers in this case are two in number, the plaintiff appellant is entitled to only a third share of the property sold."
14. The case law from our own jurisdiction the implications of Section 20 of the NWFP Pre-emption Act, 1987 have been discussed in the cases of Kala Khan v. Ayyub Khan (1993 SCMR 543) Hakeem v. Khalid Wazir (2003 SCMR 1501), Abdul Latif v. Shaukat Ali (2006 MLD 735), Raja Muhammad Riaz v. Akber (2007 MLD 844), Haji Muhammad Iqbal Khan v. Gul Badshah (2008 CLC 1549), Aman Ullah Khan v. Gul Badshah (PLD 2011 Peshawar 105).
15. Section 20 of the Punjab Pre-emption Act, 1991 is identical to Section 20 of the Act, 1987, therefore, cases in which the effect of Section 20 of Punjab Pre-emption Act have been discussed in the cases of Muhammad Ismail Qureshi v. Government of Punjab (PLD 1991 FSC 80), Feroze Khan v. Ahmad Yar (1992 MLD 1570), Muhammad Hayat v. Faiz Ali (2002 MLD 938), Muhammad Nawaz v. Ahmad Khan (2005 YLR 197), Haq Nawaz v. Bashir Ahmad (2008 YLR 3024), Wali Khan v. Noor Ahmad (2006 CLC 1715), Muhammad Arif Khan v. Muhammad Anwar (2006 MLD 625), Muhammad Khan v. Ameer Khan Gaddi Balloch (2008 YLR 296), Muhammad Tariq v. Asif Javed (2009 SCMR 240) and Khan Gul Khan v. Daraz Khan (2010 SCMR 539).
16. In all these judgments it has been consistently held that the pre-emptor(s) and vendee(s) are entitled to share the property equally pro rata on per capita basis as they are joint owners in the land subject of pre-emption having equal right of pre-emption whereas in the cases cited by the learned counsel for the respondents, the property shall be distributed per capita and pro rate basis. At this juncture, it would be advantageous to consider the definitions of `equally', `per capita' and `pro rata' which are as under:--
THE CONCISE
(i) Equally: in an equal manner (treated them all equally). 2. to an equal degree (is equal degree (is equally important).
(ii) Per capita: for each person
(iii) Pro rata: proportional, proportional (according to the rate)
THE DICTIONARY OF ENGLISH LAW (By Earl owitt):
(i) Per capita: by heads; by stocks
(ii) Pro rata: In proportion
ADVANCE LAW LEXICON (3RD Edition 2005):
(i) Equally: The words "equally" or "equally to be divided" or "equally amongst them", or "to be distributed in joint and equal proportions," occurring in a testamentary gift creates a "Tenancy in common" (Rigden v. Villier, 3, Atk.733; Stroud).
(ii) Per capita: Per head, (counting) by heads. A distribution per capita is when a number of individuals, e.g. a class, even though in different degrees of relationship, take the fund distributable among them in equal shares. Its opposite strips.
Latin for `by the head'. It usually indicates that a sum will be divided equally among a group. Thus per capita income is calculated by dividing the total income received by a group by the number of people in the group. (Investment; International Accounting; Business Term)
(ii) Pro rata: According to a measure which fixes proportions; according to a certain part; in proportions; according to the rate in proportion; implying the disposition of a fund or sum indicated in the proportion to same fixed rate or standard.
17. It is to be mentioned here that this Court has taken conflicting views in two recent judgments in the cases of Muhammad Tariq (supra) and Khan Gul Khan (supra). In Muhammad Tariq case a two member Bench of this Court has held that the Legislature has divided the pre-emptor and the vendee into two distinct classes, and if the pre-emptor and the vendee have equal right of pre-emption the property would be shared by them equally notwithstanding the number of pre-emptors or the vendees; if the other version of per capita basis is to be accepted then the whole sense of the section would altogether be damaged, all the rulings of this Court are in favour of the division of the property in equal shares i.e. 50/50 or 1/2 each because the contesting parties are two different classes. Whereas, in Khan Gul Khan's case another two member Bench of this Court after through examination of the case law on the subject, while taking a different view has held that the conclusion drawn in Muhammad Tariq's case that legislature has divided the pre-emptor and the vendee into two distinct classes i.e. the pre-emptor and the vendee, is not, in consonance with the provisions of Section 20; it is the qualification of the vendee which qualified him to share the property in terms of Section 20; the law laid down in Amir Hasan's case and other cited judgments, mentioned therein, is the correct law; therefore, the parties were declared to be entitled to share the property on the principle of per capita.
18. In the light of the above two conflicting decisions of this Court, the question arises as to whether the pre-emptor and vendee belong to two different classes or not? Even if it is declared that they belong to two different classes, whether after having been declared to have equal right of pre-emption, they would fall within one class?
19. In the instant case, the respondent produced Halqa Patwari as PW-3 to prove his ownership in the concerned Khata numbers. The Halqa Patwari in his examination-in-chief stated that the respondent was owner of land in Khasra No. 373 which was adjacent to the suit land, whereas, the appellants were not owners in the said Khata, as such they had no superior right of pre-emption vis-a-vis respondent. However, in cross-examination he stated that the appellants were joint owners in Khata No. 397, which was adjacent to land situated in Khata No. 372. The Qanoongo appeared as PW-4 and stated that source of irrigation is common in respect of the land owned by respondent and suit and. In cross-examination he stated that the appellants were not joint owners in Khata No. 373 and both the appellants and the respondent were owners of the properties adjacent to the suit property in Khata No. 372. The learned trial Court on the basis of evidence produced by the respondent held that in few Khasra numbers falling in Khata No. 372 both the parties proved to be the contiguous owners and had equal right of pre-emption. The said findings of the trial Court were upheld by the appellate as well as the High Court.
20. It is to be noted that Section 6 of the Act, 1987 provides that the right of pre-emption shall vest firstly in Shafi-Sharik; secondly in Shafi-Khalit; and thirdly in Shaft-Jar. Whereas, Section 9 of the said Act provides that 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. If aforesaid sections are read with Section 20 of the said Act, it is be clear that if the persons (vendee and pre-emptor) are equally entitled to the right of pre-emption, the property shall be distributed amongst them in equal shares.
21. The evidence on record clearly shows that both the parties are contiguous owners (Shafi-Khalit) of the land situated in Khata No. 372, therefore, notwithstanding the fact that they are vendees or pre-emptors, they all have the equal right of pre-emption. The fact that the appellants have purchased the land in dispute vide mutations in their favour, does not affect their right of pre-emption, which is an independent right. In Amir Hasan's case it has been held that as all persons having equal right of pre-emption are only entitled under the Muhammadan law to divide the property equally per capita, and as the purchasers are two in number, the plaintiff appellant is entitled to only a third share of the property sold. The said view has rightly been adopted by this Court in Khan Gul Khan's case. In the instant case the appellants have been found to be contiguous owners falling within the same class of pre-emptors, therefore, they have equal right of pre-emption and are entitled to share the land on per capita basis.
22. Now turning towards the argument raised by the respondent that in absence of plea of having equal right of pre-emption in the written statement, the appellants are not entitled to benefit of Section 20 of the Act, 1987, it is to be noted that this question has already been dealt with by this Court in Abdul Hakeem's case, wherein it has been held that Section 20 of the Act, 1987 raises purely a legal question that if on the basis of evidence it is found by the Court that both the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the Court will grant a decree in equal shares; the vendee is not bound to take a specific plea under the said section because even if a vendee is proceeded ex-parte and even if there is no written statement on record, the Court is still bound to grant decree in equal shares if ultimately it is found in evidence that both the parties belong to the same class of pre-emptors. In view of the said findings of the Court, we are of the view that there is no substance in the plea raised by the learned counsel for the respondent.
23. It is also contended by the learned counsel for the appellants that if no issue was framed as to whether respondents had preferential rights of pre-emption, the judgments under examination need to be interfered with. It is noteworthy that notwithstanding whether a specific issue was framed or not, parties were aware about their case and they also led evidence as it is evident from the discussion of the same in the judgment, inasmuch as findings have also been recorded in this behalf, therefore, following the judgment in the case of The Province of East Pakistan v. Hasan Askary (PLD 1971 SC 82), argument being without force is not entertained.
24. Learned counsel also argued that except in Civil Revision No. 240, in remaining two Revision Petitions i.e. Nos. 241 and 242 the questions raised on merits have not been discussed. Therefore, cases to this extent deserve to be remanded to learned High Court. As merits of the case were discussed in Civil Revision No. 240, therefore, it was not necessary to repeat the same arguments in each case. However, in the instant proceedings whole case has been discussed thoroughly, therefore, objection of learned counsel is no more sustainable.
25. Thus, for the foregoing reasons, Civil Petitions No. 159 and 160/2011 are converted in to appeals and all the appeals are allowed to the extent that the appellants and the respondent are equally entitled to share the land situated in Khata No. 372 on per capita basis i.e. 1/6 share each. Rest of the findings of learned High Court are maintained.
(R.A.) Appeals allowed
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