2023 SCMR 1305
Pre-emption , decree for --- Scope ---
No partial decree is possible.
Suit for possession through pre-emption --- in a pre-emption suit as the right of pre - emption is one of substitution , even in the case of pre-emption under statute law , unless the statute itself has made a departure in this regard to any extent --- From the doctrine that the right of pre - emption is one of substitution it follows that , unless the statute conferring the right of pre - emption otherwise provides , the pre - emptor must take over the whole bargain , that is to say , the pre - emptor must seek pre - emption of the whole of the subject - matter of the sale and pay the entire price paid by the vendee as consideration --- This , however , is subject to certain limitations which , at any rate , do not include the vendor's defective or want of title --- Pre - emptor is not bound to seek pre - emption of the whole of the property sold and pay the full sale price if his right of pre - emption extends over only a portion of the property sold or if a portion of the property is capable of pre emption and the other is not --- In case of any such limitation , partial pre - emption on payment of proportionate price may be permitted as of necessity and not because the pre-emptor wants it .
Suit for possession through pre emption Talb-i-Muwathibt and Talb-i- Ishhad --- Proof --- Petitioner ( pre-emptor ) produced two witnesses before the Trial Court to establish Talb-i-Muwathibat , however neither of the two witnesses deposed regarding the date on which the petitioner made Talb-i-Muwathibat --- On of them also deposed that he was not aware of the other witnesses / signatories to the notice of Talb-i-Ishhad , and merely speculated as to who they could be , and was unaware of the contents of the notice and its recipients --- Moreover , neither of the two witnesses deposed any specific date on which Talb-i-Ishhad was made --- No receipt of acknowledgement due was produced in evidence , nor was any evidence or witness brought to show that the respondents ( vendees ) had refused to be served with the notice --- It was for the petitioner to produce the postman during the evidence stage in order to establish the factum of Talb-i-Ishhad , which he failed to do --- Suit for possession through pre-emption was rightly dismissed
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