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Petitioner: AZAD VS Respondent: KARAM KHANHonorable Justice Muhammad Haleem
1988 S C M R 1381
1988 S C M R 1381
Present: Muhammad Haleem, C. J. Shafiur Rahman and Usman Ali Shah, JJ
AZAD and others‑‑Petitioners
versus
KARAM KHAN‑‑Respondent
Civil Petition No.26‑R of 1988, decided on 30th May, 1988.
(On appeal from the judgment and order dated 5‑12‑1987 passed by the Lahore High Court, Rawalpindi Bench, in Civil Revision No.23‑D of 1985).
Punjab Pre‑emption Act (I of 1913)‑‑
‑‑‑S.21‑‑Pre‑emption suit‑‑Right to pre‑empt on the basis of being an owner in the estate was not available in view of decision of Supreme Court in the case of Government of N.‑W.F.P. v. Said Kamal Shah P L D 1986 S C 360 and suit could not be decreed on 5‑12‑1987 in view of judgment of Supreme Court P L D 1988 S C 287.
Government of N.‑W.F.P. v. Said Kamal Shah P L D 1986 S C 360 and P L D 1988 S C 287 ref.
Muhammad Munir Paracha, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑ on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing: 30th May, 1988.
ORDER
MUHAMMAD HALEEM, C.J.‑‑The respondent herein pre‑empted the sale of land measuring 100 Kanals 16 Marlas situate in village Parri, Tehsil Fateh Jang, District Attock, through a suit for possession claiming to possess superior right as a co‑sharer as well as an owner in the estate.
The trial Court held him to be an owner in estate and not a co‑sharer in the Khata on 11th of June, 1983, but dismissed the suit as it found that he had failed to pay the court‑fee within the period of limitation and allowed the suit to become time‑barred The appeal failed as it was dismissed on 24th September, 1984.
The respondent thereupon preferred a revision in the High Court and the suit was decreed as the deposit of the court‑fee after the period of limitation had expired was not held to be fatal.
Before us it was urged that the right to pre‑empt on the basis of being an owner in the estate was not available in view of the decision in the case Government of N.‑W.F.P. v. Said Kamal Shah, P L D 1986 S C 360 and also that the suit could not have been decreed on 5th December, 1987, in view of the judgment of this Court in Civil Appeal No.208 of 1980 ‑ PLD 1988 SC 287.
On hearing the learned counsel for the petitioner notice was issued to the respondent who did not appear today to contest the legal objection raised.
In this view of the matter, as the High Court erred in decreeing the suit which it could not do so, we would convert this petition into an appeal and allow it with the result the suit shall stand dismissed but there will be no order as to costs.
M.B.A./A‑246/E Appeal allowed.