AJK Right of Prior Purchase Act 1993 (BIK)

  1. S. 4 — Transfer of Property Act (IV of 1882), S. 54 — Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42 — Suit for pre-emption — Scope — ‘Sale’ and ‘agreement to sell’— Distinction — Alienation in which the ownership or title of property was transferred was “sale” and not otherwise — Right of pre-emption could be exercised only when the title of the property was transferred — According to the provisions of S.4 of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.), if the alienation was of such nature through which the title/ownership of the property was transferred, the Court, was vested with powers to treat the same as sale for the purpose of said Act, but where no transfer of title or ownership occurred, the alienation could not be treated as sale — If the alienation was not sale, the question of right of pre-emption would not arise — Contract of sale of immovable property under S.54, Transfer of Property Act, 1882 was a contract that a sale of such property would take place on terms settled between the parties; and it did not, of itself create any interest in or charge on such property — In case of deed of agreement to sell, further steps of execution of sale-deed or obtaining decree for specific performance, had to be taken by the parties — Suit in the present case had been filed pre-maturely, merely on the basis of agreement to sell, which was not ‘sale’ — No right of agreement of pre-emption existed, in circumstances — Both courts below, had rightly declared that the plaintiff had no cause of action on the basis of the agreement to sell — High Court had not dived into deep for true perception of the word “alienation” and the terms and conditions of the document (agreement to sell) — Impugned judgment and decree of the High Court, were set aside and decree of the Trial Court, was restored by the Supreme Court. Sardar Muhammad Sarwar Khan v. Muhammad Nawaz Khan 2012 SCR 171 (E, F & G) Sikandar v. Sher Baz 2007 SCMR 1802; 2006 SCR 182(sis) and 214 and Raja Muhammad Akram Khan v. Azad Govt. and others PLD 2006 SC (AJ&K) 19 = 2006 CLC 1872 rel.
  2. S. 4 — Transfer of Property Act (IV of 1882), S. 54 — Right of prior purchase — Sale — Definition — Scope — Treating an alienation other than ‘sale’, as ‘sale’ — Validity — Provisions of S.4 of the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.) had empowered the Court to treat an alienation other than ‘sale’ as ‘sale’ — Definition of sale as given in S. 54 of Transfer of property Act 1882, was express, clear and comprehensive which had clearly spoken that sale was a transfer of ownership. Sr. M. Sarwar Khan v. M. Nawaz Khan 2012 SCR 171 (C)  
  3. Section 4 — benami or sham sale — sale or otherwise — determination of — According to the statutory provisions any transaction which is in fact a sale whether it is executed in the garb of mode of any other deed or name is pre-emptble. Khadim H. v. M. Fazal  2015 SCR 792 (I)
  4. Section 4 — contention of the plaintiff that disputed land was sold and was not gifted — power of Court to examine true nature of transaction — transaction which rests of registered document — effect of — Held: it is open to the Court to examine true nature of transaction to find out whether it was a sale or gift. In case of transaction which rests on registered document very strong evidence is required to throw away the same — Further held: Under the proviso attached to section 4 of the Right of Prior Purchase Act, the Court is empowered to declare an alienation purporting to, shown as or couched as other than the sale, i.e. gift, is in fact sale. Muhammad Ayyub v. Muhammad Sadiq Khan & 7 others 2016 SCR 1680 (A)
  5. Section 4 — Contention that the Court has ample powers to hold that an alienation purporting to be other than a sale is in fact a sale — Held: the Court can declare any alienation purporting to be other than a sale — but the onus always lies on the plaintiff to produce the sufficient material wherefrom the Court could ascertain that the alienation is in fact a sale. Ch. Muhammad Hanif v. Muhammad Hanif & another 2016 SCR 1723 (C) NLR 1990 Civil 297, rel.
  6. — section 4 — the Court is empowered to hold an alienation purporting to be other than a sale is in effect a sale. Abdul Waheed Khan v. Aurangzeb Khan & others 2023 SCR 282 (A)
  7. Ss. 4 & 6 — Suit for pre-emption — Right of prior purchase — Trial Court and Appellate Court below having concurrently dismissed suit for pre-emption appeal was accepted by High Court — Validity — Suit filed by the plaintiff was decreed while setting aside the concurrent findings of the Courts below — Both the said Courts, on question of facts, had concurrently recorded their findings — Second appeal was only competent on question of law and not against concurrent findings of facts. Sardar Muhammad Sarwar Khan v. Muhammad Nawaz Khan 2012 SCR 171 (A & B)
  8. Section 6 — AJ&K Right of Prior Purchase Act, 1993 BIK — repugnant to injunctions of Islam and Sunnah — as declared by the AJ&K Shariat Court — effect of judgment of the Shariat Court, titled Tanveer Hussain Shah & others vs. Azad Govt. & others, Shariat Petition No. 16/1994; Haji Suleman Khan vs. Azad Govt. & others, Shariat Petition No.61/1997; and Abdul Rehman Khan vs. Raja Muhammad Maqboob Khan, Shariat Petition No. 30/1998 — date of effect of the Judgment in Tanveer Hussain Shah’s Case — even if legislature not made amendment in this regard — provision cease to effect — The survey of the referred case law clearly reveals that the judgment in Tanveer Hussain Shah’s case under section 6 of the Shariat Court’s Act, 1993 had attained finality and it shall have to take effect from the date specified in the decision. On coming into effect of the judgment of the Shariat Court, the statutory provision declared against the injunctions of the Holy Qur’an and Sunnah shall have to cease its effect. Either the legislature has deleted the said statutory provision from the statute book while taking legislative steps for making it in conformity with the injunction of the Holy Qur’an and Sunnah, in compliance of the judgment, but after taking effect of the judgment of the Shariat Court, such statutory provision shall have no legal status and value. We find support from the referred judgments that even due to failure of the legislature in compliance of the judgment, in the state of vacuum, the common law of Islam i.e. the injunctions of Islam as contained in the Holy Qur’an and Sunnah shall deemed to be the law on the subject as held by the Supreme Court of Pakistan in the Federation of Pakistan’s case, supra. Manzoor Hussain v. Feroz Khan & another 2016 SCR 1534 (C)
  9. Section 6 — ceased to have effect on 5.10.1999 — Govt. powers to give exemption to the area from operation of pre-emption — In view of the above enunciated principle of law , on the strength of the statutory provision as well as the principle of law enunciated in the referred judgment, we hold that the judgment of the Shariat Court in Tanveer Hussain Shah’s case had taken effect on 5-10-1999, thus statutory provision of section 6 of the Right of Prior Purchase Act, 1993, BIK, as was enforced earlier in Azad Jammu and Kashmir had ceased to have its effect. Consequently, the discretionary power of the Government to exempt the property from operation of the right of pre-emption in the town area becomes ineffective w.e.f. 5.10.1999. Therefore, after this date the exemption of town property notified under the provisions of section 6 of the Right of Prior Purchase Act, 1993, BIK, ceased, hence, the pre-emption suit relating to sale of such property which took place after 5-10.1999, is maintainable. Manzoor H. v. Feroz Khan 2016 SCR 1534 (D)
  10. S. 6(2)-Exemption from pre-emption – notification-limits of local area exempted from pre-emption – not necessary to be defined under S. 6(2) – such limits can be defined under S. 5 of AJK Local Government Ordinance. Muhammad Hussain Shah & others. v. Ejaz Hussain 1992 SCR 13 (B)
  11. Ss. 6, 14, 18 & 19 — Suit for pre-emption — Waiver and acquiescence — Scope — Both the Trial Court and Appellate Court below dismissed suit filed by the plaintiff/pre-emptor on the ground of acquiescence and waiver, but High Court decreed the suit — Counsel for pre-emptor had contended that vendor had offered the plaintiff to purchase the land, but he refused to purchase the same; and that after refusal he could not turn around and file suit for pre-emption — Contentions had no force as oral evidence that a mere offer was made to the plaintiff by the vendor that he wanted to sell the land to him and he refused, could not constitute waiver, as notice under S.18 of Azad Jammu and Kashmir Prior Purchase Act, 1993, was mandatory — When any person wanted to sell any agricultural land or village immovable property in respect of which any person had right of prior purchase, a notice to sell such land would be given through court of competent jurisdiction — Said notice must be in  accordance with provisions of O.V, C.P.C. —  Before entering into definite contract, vendor should have issued notice to sell property against a definite price — Said notice would contain the details of title, property proposed to be sold and the price at which he wanted to sell the same — If after receipt of notice, the pre-emptor would fail to respond, he would be deemed to have waived the right of pre-emption — Mere presence of plaintiff/pre-emptor at the time of sale, when bargain was struck, would not prove acquiescence in the sale — Defendants had failed to prove the alleged waiver — Plaintiff having not waived his right of pre-emption, Trial Court and Appellate Courts had recorded the findings against the law. M. Ejaz Khan v. Sikandar Shah 2012 SCR 318 (A, B, D & E)
  12. Ss. 6, 14 & 21 — Azad Jammu and Kashmir High Court Procedure Rules, 1984, R.44 — Civil Procedure Code (V of 1908), S.115(1), proviso II — Suit for pre-emption — Failure to deposit 1/5th of ostensible price of suit-land — Revision — Limitation — Plaintiffs having failed to deposit 1/5th of ostensible price as ordered by the Trial Court on fixed date, suit was dismissed for said failure — Order to deposit 1/5th of ostensible price was passed by the Trial Court in presence of counsel for the plaintiffs — Knowledge of the counsel being knowledge of the party, if the plaintiff would fail within the time fixed by the Court to deposit 1/5th of suit-land as required under S.21(1) of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993(B.K.) the plaint would be rejected or his appeal dismissed — Revision petition against judgment of the Trial Court which was to be filed within the period of 90 days having been filed after a period of about 4-1/2 years, was rightly dismissed by the High Court being barred by time — Appeal was dismissed by the Supreme Court. Noor Dad v. Muhammad Rafique 2012 SCR 311
  13. S. 14 — Whether any provision of S. 14 of Right of Prior Purchase Act are violative of Shariah or not fall within the exclusive jurisdiction of the Shariat Court and no other forum is competent to take cognizance of the same. Mst. Fatima Bibi v. Farzand Ali 1992 SCR 236 (C)
  14. S. 14 — The question as to whether S. 14 is violative of the Shariah, falls within the jurisdiction of Shariat Court and not the High Court. M. Iqbal v. M. Siddique and others 1993 SCR 255 (C)
  15. S. 14 — If contrary intention does not appear in the relevant statute, the suits which were pending at the time of amendment of section 14 of the Prior Purchase Act would be governed by unamended provisions which were in force at the time of the institution of the suit and not in view of the amended law. Muhammad Hussain v. Mst. Muniza Bi 1996 SCR 243 (A)
  16. S. 14 — Amendment — Limitation is a procedural law and generally it is given retrospective effect even if statute does not so provide — There is one exception that if such retrospectivity takes away, destroys or nullifies the vested rights, old law of limitation would govern the matter and new statute would not affect the vested right of litigants. Fazal Dad v. Sakina Bibi 1997 SCR 178 (A)
  17. S. 14 — Limitation — Amendment of — If the amendment period of limitation is given retrospective effect, the suit would become hopelessly time-barred and would destroy vested rights — Therefore old period of limitation would apply. Fazal Dad v. Sakina Bibi 1997 SCR 178 (B)
  18. Section 14 — co-owner in the corpus of undivided property — determination of status — according to the statutory provision, for determination of pre-emptor’s status as co-owner the basic criteria is the corpus of undivided immovable property sold. The corpus of the undivided immovable property sold is synonymous to the word ‘Mahal’. Muhammad Yaqub v. Zaman Ali & 6 others 2014 SCR 684 (C,C`) Muhammad Yousaf Khan v. Mirza Muhammad Hanif Khan & another (Civil Appeal No.5/2006, decided on 9.5.2013): and PLD 1984 SC AJ&K 38 ref.
  19. S. 14 — The point taken for review of the judgment is that, only occupancy rights were transferred and not the ownership rights at the time of sale and the whole occupancy rights were transferred, therefore, there was no more co-sharer of occupancy tenancy available, thus, the right of pre-emption was extinguished which is against the unamended section 14 of Prior Purchase Act. Held: after going through the above said provision it is spelt out that the clog has been imposed, that after transfer of tenancy right of whole land, there shall be no right of pre-emption in the owner in a khewat.  Further held: we are not convinced with the arguments that after sale of whole tenancy rights there remains no right of pre-emption. The khewat consists of more than one khasra number and the record shows that the land was transferred from some specific khasra numbers out of khewat, therefore, the co-owner in khewat has a right of prior purchase.  Munshi Khan & 2 others v. Muhammad Sadiq & another 2014 SCR 1012 (C)
  20. Section 14 — For exercise of the right of pre-emption, the pre-requisite is the existence of sale. Ch. Muhammad Hanif v. Muhammad Hanif & another 2016 SCR 1723 (A)
  21. —Section 14—Right of Prior Purchase shall vest firstly in Shafi-sharik— first class shall exclude the second and the second shall exclude the third— vendees became co-sharers and attained the status of first class—held: the suit cannot be decreed on the claim of second or third class. Dildar v. Malik Dad Shamim & others 2019 SCR 363 (B)
  22. — section 14 — categories of persons having right of preemption — Held: under Section 14, the lineal descendants and agnates are included in the categories of the pre-emption. Qazi Muhammad Ishaque v. Sain Muhammad (deceased) represented by legal heirs & others 2023 SCR 216 (A)
  23.  — section 14 — Transfer of Property Act, 1882 — section 118 — pre-emption suit — right of pre-emption can be defeated by legitimate device like exchange and gift — the device must possess all the essentials of exchange and gift — if law exempts transaction of exchange from pre-emption, it is open to a person to resort to the same to save his land from pre-emption and the Cours of law permit such device to be pursued. Zeenat Begum & others vs Zaffar Ali Qaiser & others 2024 SCR 123(C)  1981 CLC 527, PLD 1983 Peshawar 13 & PLD 1961 Peshawar 62 rel.
  24. — section 14(b) — categories of persons having Right of Pre-emption — when the sale is of a share out of the joint property then the right of pre-emption firstly vests in the lineal descendants, secondly in the co-sharers who are agnates in order of succession and thirdly the person, not included in the first and second category but on the death of the vendor is entitled to inherit the land sold. Qazi Muhammad Ishaque v. Sain Muhammad (deceased) represented by legal heirs & others 2023 SCR 216 (B)
  25. —section 15—persons in whom right of prior purchase vests in urban immovable property—sixth category—owner of contiguous property—in light of the provision of section 15 of the Right of Prior Purchase Act, 1993, if the plaintiff-respondent’s suit does not fall in any other category at least it falls in the category, ‘sixthly’ which speaks that the right of prior purchase in respect of the urban immovable property vests in the owner of the property contiguous to the property sold. Kamal Hussain v. Muhammad Shabir& others 2017 SCR 236 (C)
  26. Section 16 read with section 14 — Pre-emption suits — Determination of rights of prior purchase among several pre-emptors — Exercise of right of prior purchase where several persons equally entitled — Where several persons are found by the Court to be equally entitled to the right of prior purchase the said right shall be exercised, if they claim as owners of mahal, in proportion among themselves to the shares which they already hold in the mohal — The right of contesting pre-emptors being equal. Held: Pre-emption decree has to be recorded by the trial Court in proportion among themselves, to the shares which they already hold in the mahal. Further held: The term “owner of mahal” under section 16, category ‘C’ refers to a person termed as Shafi-Jar (under section 14) as the holds the property adjacent to property sold —  Case remanded to the trial Court to pass a decree keeping in view section 16 — the trial Court shall determine the proportion among rival pre-emptors to the shares which they already own adjacent to property sold. Wazir Hussain Shah & 7 others v. Ali Shan & 3 others  2011 SCR 1 (E & F)
  27. Section 16 — equal rights of pre-emeptors — determination of shares — method of — proportionate to respective share in mahall — the trial Court shall record his statement for determining the share of the rival pre-emptors held by them in the mahal at the time of pre-empted sale-deed. After determination of the respective shares, the decree proportionate to their shares in the mahal shall be passed and not on the basis of the volume of the adjacency of the land. Ali Shan v. Wazeer Hussain Shah 2015 SCR 945 (A)
  28. S. 18 — See Azad Jammu and Kashmir Right of Prior Purchase Act, 1993(B.K.), S.6. Muhammad Ejaz Khan v. Sikandar Shah 2012 SCR 318 (A)
  29. S. 20-A — See AJK Supreme Court Rules, 1978, O.XLVI, R.1. Muhammad Saleem Khan v. Mst. Muqarab Jan and 2 others 2013 SCR (SC AJ&K) 777 (D)
  30.       Section 20-A— improvement in the status by the vendee prior to the institution of suit is protected and only after the institution of suit, the improvement of status shall not affect the right of pre-emption. Dildar v. Malik Dad Shamim & others 2019 SCR 363 (A) 1999 SCR 83 rel
  31. —Section 20-A—This provision postulates that “any improvement made in the status of the vendee-defendant after institution of the suit for pre-emption shall not affect the right of pre-emptor-plaintiff in such a suit”. Raja Khalid Mehmood & others vs Muhammad Hussain &others 2018 SCR 1195 (A)
  32. Section 20-A—inserted through                amendment—improvement in the status—before the insertion of this section— effect of —Held: Section 20-A inserted through amendment, procedural in nature and the vendee has no statutory right to improve his status before insertion of this section, therefore, the improvement in the status will not affect the statutory right of pre-emption after insertion of 20-A. Raja Khalid Mehmood & others vs Muhammad Hussain &others 2018 SCR 1195 (B)
  33. S. 21 — The provisions of section 21 of the Right of Prior Purchase Act have been held time and again mandatory in nature and the same are to be construed strictly — The right of pre-emption is a piratical right witch deprives lawful owners of their right to purchase certain property on the basis of their right of prior purchase. Zulaikha Khatoon v. M. Yasin & 5 others 2004 SCR 535 (B)
  34. S. 21 — These provisions arise out of a special statute which are mandatory in nature and the same are to be construed strictly — The right of pre-emption is a piratical right which deprives lawful owners to their right to purchase certain property on the basis of their right of prior purchase. Zulakha Khatoon v. Ch. Muhammad yasin & 5 others 2004 SCR 27 (B)
  35. S. 21 — Contention that before filing of written statement the order to deposit 1/5th of price could not be made, has no merit — Provisions of law clearly provide that order can be made at any time before or at the time of settlement of issues. Raquia Bibi v. M. Azeem 2005 SCR 161 (A)
  36. S. 21 — Before settlement of issues the Court may require the plaintiff to deposit 1/5th of probable value of land or property within such time as fixed by the Court. Altaf Hussain Shah v. Muhammad Nasim Khan & another 2009 SCR 370 (D)
  37. S. 21 — Discretion of Court — It is entirely the discretion of Court to pass order either for execution of surety bond or for deposit of amount. Altaf H. Shah v. M. Nasim Khan  2009 SCR 370 (I)
  38. S. 21 — Discretion of the Court — Court has discretion to extend time — Such discretion has to be exercised in judicial manner not arbitrarily and capriciously — Courts always insisted that no latitude or undue concession should be allowed against a person who acquired title in property by bona fide transaction  — While exercising discretion the Court has to satisfy itself that omission on part of pre-emptor was bona fide not mala fide — The conduct of pre-emptor has to be adjudged — Discretion could be exercised in favour of plaintiff if it is established that there was sufficient cause for non-compliance of order of Court and conduct of pre-emptor is bona fide not mala fide — Discretion could not be exercised in favour of a pre-emptor who has no reason for seeking further extension of time — Time could not be extended without a genuine cause — It is paramount duty of plaintiff seeking extension of time to establish sufficient cause for such extension. Altaf Hussain Shah v. Muhammad Nasim Khan & another 2009 SCR 370 (F)
  39. S. 21 — Law of pre-emption is creation of a statute — It defeats the legitimate and legal transaction — No equity involved in it — Held: Doctrine of equity is not applicable to pre-emption cases. Altaf Hussain Shah v. Muhammad Nasim Khan & another 2009 SCR 370 (A)
  40. S. 21 — Where plaintiff fails to deposit 1/5th of ostensible price — Plaint has to be rejected unless some strong and cogent reasons are assigned. Altaf H. Shah v. M. Nasim 2009 SCR 370 (B)
  41. Section 21 — deposit of sum of 1/5th of the probable value of the subject matter — under sub-section (1) of section 21, it is mandatory for the Court to order for deposit of security to the plaintiff whether equal to 1/5th of the probable value of the land or require him to give the security to the satisfaction of the Court not exceeding the probable value of the property — this power has to be exercised before the settlement of issues — provisions of section 21 are to be construed strictly. A. Rashid Abbasi v. Jamil Ahmed Malik 2014 SCR 1075 (A) PLJ 2004 SC (AJ&K) 115, rel.
  42. Section 21 — if the plaintiff fails to deposit 1/5th of the consideration amount within time fixed by the Court or within such further time as the Court may fixe to make the deposit, the plaint shall be rejected. M. Rafique v. District Judge Kotli & others 2015 SCR 1593 (A) 2004 SCR 535 ref.
  43. Section 21 — The plaint of the plaintiff shall be rejected if the plaintiff fails to deposit the 1/5th amount of ostensible price within fixed time or extended time — The plaint shall be rejected instead of dismissal. M. Rafique v. Dist. Judge Kotli & others 2015 SCR 1593 (B)2014 SCR 1075 ref.
  44.  Section 21 — deposit of 1/5th of probable value or security — pre-emption suit — in every suit the Court shall, before the settlement of issues, require the plaintiff to deposit such sum as is in the opinion of the Court equal to 1/5th   of the probable value of the land or property or require the plaintiff to give security to the satisfaction of the Court — Sub-section 4 deals with the time as may be fixed or within such further time if it extended, to make deposit or furnish the security — on failure, the plaint shall be rejected or appeal dismissed as the case may be. Zaheer Ahmed Mughal & 3 others v. Muhammad Ejaz & 4 others 2016 SCR 544 (A)
  45. Section 21 — The provisions of law are mandatory in nature and non-adherence to the same, results into penal consequences. Zaheer Ahmed Mughal & 3 others v. Muhammad Ejaz & 4 others 2016 SCR 544 (B) 2004 SCR 27 & 2009 SCR 370 ref.
  46. —Section 21—The vendee can improve his status before institution of the suit and not after that. Hanif Khan vs Muhammad Hanif Khan&others 2018 SCR 1303 (A)
  47. Section 21, sub-section 4 — in case of non depositing of 1/5th of ostensible price or furnishing of security in the like amount within the stipulated or extended time, the plaint shall be rejected. Zaheer Ahmed Mughal & 3 others v. Muhammad Ejaz & 4 others 2016 SCR 544 (C)
  48. Section 21 — deposit of security in pre-emption cases — sub-section (3) of Section 21, in clear terms provides that the amount deposited under sub-section (1) or (2) shall be available for the discharge of the costs — if the plaintiff fails to deposit or furnish the amount of security within the time specified by the Court the plaint shall be rejected or appeal shall be dismissed. Abdul Rashid Abbasi v. Jamil Ahmed Malik & 4 others 2014 SCR 1075 (B)
  49. S. 21 (4) Extension of time for deposit of pre-emption amount — A person who files a suit to seek acquisition of same property by way of prior purchase he must have the necessary funds for completing the transaction. Muhammad Arif Khan v. Jahandad Khan 1993 SCR 230 (A)
  50. S. 21 (4) r/w  S. 148 CPC — Extension  of time — Where the decree or the order of the Court does not provide that suit shall dismissed then the Court has seisen over the matter and can extend time — S. 148 CPC can be pressed in the service for that purpose. M. Arif Khan v. Jahandad Khan 1993 SCR 230 (B)
  51. S. 21(4) — A plaint can only be rejected and the suit can be dismissed — If the suit is deemed to have been ‘dismissed’ or it is taken to be a case of ‘rejection’ of the plaint, in both the eventualities it would mean the end of the present suit — The contention of the learned counsel for the appellant that the appeal should have been accepted by the Courts below on the aforesaid ground is not tenable.M. Hussain v. Hassan  M. 1996 SCR 88 (A)
  52. S. 21(4) is mandatory in nature and has to be construed strictly — The time fixed by the Court to make the deposit or to furnish the requisite security can be extended by the Court but for doing so there should be a reasonable explanation as to why the order of the Court has not been complied with — S. 21(4) is mandatory in nature and has to be strictly construed — If an explanation for the default is given the Court is legally bound to consider whether the circumstances were such as to justify an extension of time. — The explanation is to be given by the person who has failed to comply the orders of the Court and it is not for the Court to seek it — From the phraseology of sub-section (4) the requirement of seeking an explanation is not spelled out — Appeal dismissed as per majority. Muhammad Hussain v. Hassan Muhammad 1996 SCR 88 (D)
  53. S. 21(4) — Contention that order for deposit of 1/5th of consideration amount did not contain any stipulation that in case of non-compliance of order, the suit shall be dismissed, therefore, suit could not be dismissed, has no substance — Where 1/5th of consideration amount is not deposited within the stipulated time, the suit shall be rejected — Held: Trial Court has rightly rejected the suit. Altaf Hussain Shah v. Muhammad Nasim Khan & another 2009 SCR 370 (J)
  54. S. 21(4) — If plaintiff fails to deposit the amount fixed then the plaint has to be rejected — The aforesaid provision of law is mandatory — It is to be complied with strictly. Altaf Hussain Shah v. Muhammad Nasim Khan & another 2009 SCR 370 (E)
  55. Section 21(4) — Argument that the penal direction for dismissal of suit while passing order to deposit 1/5th of price of suit land or security is not necessary because under section 21 of the Right of Prior Purchase Act if the plaintiff fails, the rejection of plaint is mandatory. The phraseology of the codal provisions empowers the Court to extent time for depositing 1/5th of price of suit land or furnishing security. This codal provision does not speak that in all cases if the order not complied within initially fixed time, the plaint will be rejected rather it speaks that “within such further time as the Court may fix”, — Held: therefore, in our estimation this codal provision vests the trial Court with the power to extend time for making deposit or furnishing security. Muhammad Shabbir Khan v. Abdul Qayyum Khan 2010 SCR 528 (C)
  56. S. 22 — Prayer for extension of time for deposit of one-fifth of the sale money-proved. Muhammad Yaqoob  v. Kala Khan 1994 SCR 52 (A)
  57. —Section. 26—Determination of the market value of the sold land—duty of the Court—The determination of the market value of the sold land is primary duty of the Court and it has to be considered while keeping in view the provisions contained in section 26. Raja Khalid Mehmood & others vs Muhammad Hussain &others 2018 SCR 1195 (C)
  58. S. 27 of the Right of Prior Purchase Act read with rule 14 of order 20 of the C.P.C., in case of more than one pre-emption suits, the hearing of the suits is to be held simultaneously after their consolidation — Decree passed in favour of Manzoor Ahmad, appellant herein, by the trial Court without consolidating both the suits as envisaged under section 27 of the Right of Prior Purchase Act is not binding on Rehmat Ali or  his legal representatives, especially so when his suit had already been remanded to the trial Court —  Irrespective of decree of pre-emption in favour of the appellant, herein, the fact remains that the same being in violation of the above mentioned provisions of law was not binding upon the rival pre-emptor or his legal representatives. Manzoor Ahmad v. Rehamat Ali and 5 others 2000 SCR 227 (A)
  59. R. 44 — See Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K), S.6. Noor Dad v. Muhammad Rafique 2012 SCR 311
  60. Punjab Pre-emption Act and AJK Right of Prior Purchase Act- Not pari materia-It is dangerous to apply one Act to the other Act if not pari materia. M. H. Shah v. Ejaz Hussain 1992 SCR 13 (A)
  61. Consideration amount determination of — It is settled law that if there is no satisfactory evidence regarding consideration amount not paid before the Sub-Registrar, the decree in a pre-emption case should be passed on the payment of market value of land. Muhammad Fazal v. Muhammad Shamoon & another 1994 SCR 185 (A)
  62. Payment and fixation of price — Onus of proof — Onus of proof of payment and fixation of price of a land in a pre-emption case is always on the vendee. The pre-emptor is not bound either by the endorsement made by the Sub-Registrar at the time or registration of the sale deed or by any admission of vendor. Adalat Khan v. Fazal Hussain & another 1995 SCR 151 (A)
  63. It is a cardinal principle of law that in a suit for pre-emption the plaintiff/pre-emptor is bound to prove the qualifications alleged in his pleadings and not on the basis of any other qualification which emerges out of the evidence of the plaintiff/pre-emptor. Sain v. M. Din 1995 SCR 208 (C)
  64. Appellant-plaintiff was ordered by the Court to deposit 1/5th of the probable value of the suit land on or before 22.08.1992 — Presiding Officer was on leave on 22.08.1992 and the Clerk of the Court adjourned the case to 31.08.1992, the Presiding Officer was on leave and the case was further adjourned by the clerk to 09.09.1992. On 09.09.1992 some other Advocate deputized for the counsel for the plaintiff — There was no application for extension of time by the appellant-plaintiff — The Court dismissed the suit on the ground that 1/5th of the probable value was not deposited — The plaintiff went into appeal claiming that since the Presiding Officer was on leave on the said three dates, therefore fresh orders of the Presiding Officer had to be obtained. Held: Even if the Presiding Officer was on leave it was not necessary for the plaintiff to obtain a fresh order in this regard. Neither extension was sought nor the Presiding Officer extended the time. The failure to deposit 1/5th of the probable value was not explained and the plea raised by appellant-plaintiff was repelled. Muhammad Hussain v. Hassan Muhammad 1996 SCR 88 (B)
  65. The trial Court should seek an explanation from the plaintiff-appellants as to why the order of the Court was not complied on or before 22.08.1992 and thereafter decide the matter afresh. Muhammad Hussain  v. Hassan Muhammad 1996 SCR 88 (C)
  66. A co-sharer in a specific survey number of a ‘khewat’ has right of pre-emption in respect of the other survey numbers of the same ‘khewat’ in which he is not recorded as co-sharer in the revenue record. Rehmat Ali and another v. Soofi Muhammad Azam 1996 SCR 191 (A)
  67. Extension of time for depositing pre-emption money — Appeal-Revision — Objection to the competency of appeal — The High Court also possesses the revisioned jurisdiction — And even if it is assumed that no appeal was competent, the High Court was competent to pass the order extending the time for depositing pre-emption money in exercise of revisioned jurisdiction. Muhammad Iqbal v. Anwaar Anwar 1996 SCR 293 (A)
  68. Waiver — Waiver defined in Law Terms & Phrases by Sardar Muhammad Iqbal Khan Mokal. Ghulam Rasool v. Muhammad Khan & another 1998 SCR 235 (A)
  69. No hard and fast rule can be laid down for constitution of waiver but it has to be seen in light of the facts of a particular case. Ghulam Rasool v. Muhammad Khan & another 1998 SCR 235 (B)
  70. Acceptance of Rs.1000/- for an undertaking to refrain from filing the pre-emption suit, clearly constitutes a waiver. Ghulam Rasool v. Muhammad Khan & another 1998 SCR 235 (C)
  71. The concurrent findings of fact recorded by the trial Court and the first appellate Court cannot be disturbed unless a case for misreading, non-reading or gross injustice has been made out — Even if on appraisal of evidence a different conclusion is arrived at by the High Court or this Court, the same cannot be ground for setting aside the concurrent findings however erroneous the same may be. Ghulam Rasool v.  Muhammad Khan & another 1998 SCR 235 (D)
  72. Principle of the stages would apply only if the right has not defeated or taken away the right of pre-emption. Ameera Begum and 6 others  v. Noor Hussain 1998 SCR 372 (B)
  73. Limitation — Amendment of — Period of limitation four months provided through amendment would govern the matter whether the sale-deed was executed prior to the amendment or after the same — Provided period of four months or any part of it remains to be expired and can be utilized for filing a suit of pre-emption — Where the whole period of four months has expired or where remains no breathing space unamended law would govern the matter. Muhammad Yousaf and 3 others v. Fazal Dad and 12 others 1999 SCR 184 (A)
  74. Waiver — Witnesses on the question of waiver were not relied upon by the Courts below, merely their alleged presence at the time of bargain of the land in question would not debar them from exercising the right of pre-emption — There must be some positive overt act, such as active participation in the negotiations of the bargain of the land to show positively that they lost their preferential right by their conduct. Umar Hayat v.  M. Asghar & 2 others 2000 SCR 381 (A)
  75. ‘Mahal’ “estate” meaning of — Mere fact that property owned by the plaintiff was adjacent to the property sold — Not sufficient to hold that the said lands are situated in the same ‘Mahal’ — It was necessary for the plaintiff to prove that the land owned by him and assessed to land revenue treating the same as one entity or unit etc. ‘Mauza’, ‘village’, ‘estate’ or ‘Mahal’. Muhammad Khan and another v. Muhammad Sharif & another 2001 SCR 49 (G)
  76. It is well settled principle of law that a vendee can improve his status during the pendency of the suit — The right of prior purchase should be existing on the dates namely, date of execution of sale deed, date of institution of suit and the date pre-emption decree in favour of pre-emptor. Muhammad Malik v. Yaqoob Javed Batalvi & another 2002 SCR 47 (C)
  77. A pre-emptor can enforce his right of prior purchase against a purchaser on the grounds permissible under law within the period of limitation provided for it. Amanat Ali v. Sr. Bibi 2002 SCR 265 (B)
  78. Deposit of 1/5th — Extension of time — It is well settled principle of law that the order regarding 1/5th cannot be extended by the trial Court without sufficient reasons in that regard. Yousaf Shah v. Muhammad Sharif & 3 others 2002 SCR 228 (A)
  79. Even in case the suit property was transferred to the vendors by the vendee, the superior right of pre-emptor cannot be defeated as the vendors cannot claim any right against him — The pre-emptor has not to enforce his superior right of pre-emption against the subsequent vendee — However, in case of transfer of property with its possession, he is to be added to as a party for which the period of limitation either would be under Article 120 or 144 of the Limitation Act. Amanat Ali v. Sardar Bibi and 2 others 2002 SCR 265 (D)
  80. Filing of an independent suit against the subsequent vendee particularly when a suit asserting the right on various grounds, was filed against the original vendee, is meaningless as the rights are to be determined between the pre-emptors and the first vendee. Amanat Ali v. Sardar Bibi and 2 others 2002 SCR 265 (E)
  81. The right is exercisable against the first vendee and in case of a transfer of the property by the first vendee in favour of the subsequent vendee/transferee, he has to take the transfer subject to the rights of the pre-emptor against the original purchaser — If a pre-emptor exercises his right of pre-emption against the vendee, the transfer of property in favour of subsequent vendee is subject to the rights of the pre-emptors against the first vendee — the cause of action arises to the plaintiff shall not be defeated by transfer of the property in favour of the subsequent vendee. Amanat Ali v. Sardar Bibi and 2 others 2002 SCR 265 (C)
  82. Plaintiff was ordered for deposit of 1/5th of consideration amount — The plaintiff filed an application for modification of order — It was requested that instead of depositing 1/5th of the consideration amount the plaintiff may be allowed to furnish personal surety — The application for extension of time was dismissed but through the same order the time for depositing 1/5th of consideration amount was extended — In fact there was no request for extension of time — Totally a new and inconsistent case was put up by the plaintiff — On presentation of application objection were called — However, the trial Court rejected the application but at the same time extended the time for depositing 1/5th of consideration amount — Where the order for extension of time was passed the trial Court had become functus officio and had no jurisdictional competence whatsoever — The suit filed by plaintiffs stood automatically dismissed as the same was dependent upon deposit of 1/5th of consideration amount — Trial Court had no option but to dismiss the application — Moreover, there was no prayer for further extension of time supported by some cogent reasons. Zulaikha Khatoon  v. Muhammad Yasin & 5 others 2004 SCR 535 (A)
  83. Price of the land — The owner cannot be compelled to sell his property at a price which is acceptable to a desirous vendee less than the actual market price of land. Muhammad Razzaq & another v. Nazir Hussain & 4 others 2005 SCR 50 (C)
  84. Non-deposit of 1/5th amount of consideration — On 15.10.2003 trial Court ordered for depositing 1/5th amount — Counsel for plaintiff was not present — Initially the Court fixed the case for 15.11.2003 —Subsequently the order was amended — No penal provision was incorporated  in the order in case the plaintiff fails to comply with the order — When trial Court has not ordered  that if the amount is not deposited within specified time the suit shall be dismissed — Held: The trial Court was not functus officio and it had had power to enlarge the time. Ghulam Din v. Nazir Ahmed & another 2008 SCR 530 (A)   1993 SCR 230 rel.
  85. Whether plaintiff acted bona fidely — He instead of depositing the cash money filed the security inadvertently or he was not diligent in pursuing his case and he deliberately disobeyed the Court order — On 15.10.2003 the counsel for plaintiff was not present — Initially the Court only ordered that on 15.11.2003 issues will be struck — Later on the order was amended — The plaintiff was ordered to deposit 1/5th —amount of consideration price upto next date of hearing — On next date filed security in Court and security bond is written on stamp paper valuing Rs.500/- — Held: The act of plaintiff shows diligence on his part that he was pursuing his case keenly — On 22.12.2003 the Reader of Court informed him that instead of filing 1/5th of consideration price he filed security which is not compliance of the Court order — Plaintiff immediately filed application for extension of time — Held: Circumstances were beyond his control — The plaintiff tried his level best whatever he could do for extension of time. Ghulam Din v. Nazir Ahmed 2008 SCR 530 (B)
  86. Argument that application of plaintiff was dismissed on 23.12.2003 but he did not move application for restoration of same has no force because that application was not registered separately as miscellaneous one — Reader shall have placed this application with original case — Held: Plaintiff was not in knowledge of the dismissal of same — He rightly filed a fresh application for extension of time. Ghulam Din v. Nazir Ahmed & another 2008 SCR 530 (C)
  87. No doubt provisions of AJ&K Right of Prior Purchase Act are mandatory in nature — The same are to be strictly complied with — The trial Court in instant case while ordering for deposing of 1/5th amount of consideration price has not incorporated in its order that non-compliance of order will result in dismissal of suit — The plaintiff acted bona fidely — Held: Enlargement of time was necessary. Ghulam Din v. Nazir Ahmed & another 2008 SCR 530 (D)
  88. On 11.10.2007 an order was passed by trial Court for deposit of 1/5th amount upto 23.10.2007 — The plaintiff neither deposited the amount nor moved any application for further time — Held: The suit was liable to be rejected on the ground that the plaintiff failed to deposit 1/5th of probable value of land on 23.10.2007 — Case was fixed for 30.10.2007 by the Clerk — On 30.10.2007 it was incumbent upon the Presiding Officer to reject the plaint on the ground of non-compliance of order — Appellant made a request before the Court for extension of time but did not move any application — He has not assigned any justification why he could not deposit the amount — But the Court took lenient view and provided one more opportunity — Held: Trial Court was not justified in providing further opportunity merely on verbal request of appellant— Held: Under law it was incumbent upon trial Court to reject the plaint — Law of equity is not involved in pre-emption cases. Altaf Hussain Shah v. Muhammad Nasim Khan & another 2009 SCR 370 (H)
  89. Order for deposit of 1/5th of consideration amount was passed on 11.10.2007 — Plaintiff had to deposit the amount on 23.10.2007 which was date of hearing — On 23.10.2007  the plaintiff neither deposited the said amount nor made any request through some application for extension of time — Although the Presiding Officer was on leave on that day but he had already ordered that 1/5th amount should be deposited upto 23.10.2007 — But plaintiff failed to deposit the amount — Suit was rejected. Altaf H. Shah v. M. Nasim Khan & another 2009 SCR 370 (G) 1996 SCR 88 rel.
  90. Right of pre-emption is piratical one — Courts always leaned against it — And have insisted upon strict compliance of law. Altaf H. Shah v. M. Nasim Khan & another 2009 SCR 370 (C)
  91. Right of pre-emption — Court ordered pre-emptors to deposit 1/5th of probable amount — One of the pre-emptors obeyed the order of the Court whereas, the other two failed — In such a case a right had come to rest in the respondent and it couldn’t at all the pleaded that the Court has applied a stringent provision. Held: Strict compliance of the orders of the Court in pre-emption matter is even otherwise required as the very right of the pre-emption is basically a weak right, which arises out of a special statute and is in fact a piratical right which deprives lawful owners to their right to purchase some property on the basis of their right of prior purchase. Muhammad Ishfaque Khan v. Rehman Khan & 12 others 2011 SCR 18 (A)
  92. Held: the term ‘corpus of the undivided immovable property’ used in relation to land according to system of revenue record prevailing is synonymous to khewat. Muhammad Yaqub v. Zaman Ali & 6 others 2014 SCR 684 (D)
  93. Law of pre-emption — concept of — according to the historical background and unanimous juristic approach, the concept of pre-emption is derived from the Islamic Laws. A legend Jurist, Dr. Tanzeel-ur-Rehman, former Chief Justice of Federal Shariat Court compiled the Islamic Laws known as مجموعہ قوانین اسلام” “ in Vol. VI of  this book the basic foundation dealing with the pre-emption laws has been discussed. Khadim H. v. Muhammad Fazal & others 2015 SCR 792 (A)
  94. Right of — principles to be followed — of Islamic or English law — section 3 — AJ&K Interim constitution Act, 1974— held — Islamic law to be followed — as the right of pre-emption  is derived from Islamic law — we are unable to affirm the view expressed that in pre-emption matters, rule of English Jurisprudence has to be followed. As discussed hereinabove the right of pre-emption is derived from Islamic law and not from English Law. Even otherwise, due to subsequent legislative developments now it is no more debatable proposition that in pre-emption matters, the principle of English Jurisprudence has to be followed or Islamic Law. According to the spirit of the enforced laws especially, the provision of Section 3 and sub-section (5) of Section 31 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the principle of Islamic Jurisprudence has to be applied and followed and not the English law. Khadim H. v. M. Fazal 2015 SCR 792 (F) PLD 1984 SC (AJ&K) 122 rel.
  95. Right of pre-emption — transfer of — devolve upon — to legal heirs — transfer of property carries with it rights and liabilities attached to such  property — the right of preemption is made contingent to the immovable property or to a person possessing a right with reference to the immovable property, thus, it is clear that this right travels with the property. According to celebrated principle of law, when the property is transferred, such transfer carries with it all the rights and liabilities attached to it. On the death of the pre-emptor, surely, his property has to devolve upon the legal heirs, hence, the legal heirs step into shoes of the predecessor-in-interest. Logically, the right of pre-emption in this situation is in fact continuation of the claimed right of the deceased and not a new claim. Khadim Hussain v. Muhammad Fazal & others 2015 SCR 792  (H)
  96. Right of the Prior Purchase can only be exercised by a person under law if a sale of immovable property is made. Ch. Muhammad Hanif v. Muhammad Hanif & another 2016 SCR 1723 (F)
  97. Effect of Judgment — retrospective or prospective — section 51, AJ&K Interim Constitution Act, 1974 — Contention that the judgment in Tanveer Hussain Shah’s case has retrospective effect — Held: — the statutory provision of section 6 of the Shariat Court Act clearly speaks that the judgement will effect from the date specified in the judgment and not retrospectively. Moreover, there is yet another statutory provision i.e. section 51 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which also makes this argument [that effect of judgment is retrospective] ineffective. Under the provision of section 51 of Interim Constitution the laws enforced given protection and continuity — till alteration, repeal or amendment by the act of an appropriate authority. When the provision of section 51 of the Interim Constitution, juxtaposition with section 6 of the Shariat Court, are appreciated, obviously result is that the judgment of the Shariat Court in Tanveer Hussain Shah’s case has prospective effect and not the retrospective. Therefore, the argument having no force stands repelled. Manzoor H. v. Feroz & another 2016 SCR 1534 (E)
  98. Execution of sale deed on  6-8-2003 — judgment of the Shariat Court became effective on 5-10-1999 — exemption of suit property from operation of right of pre-emption had ceased on date of judgment — according to the admitted facts of this case, the pre-empted sale-deed has taken place on 6-8-2003, thus, after the date of taking effect of Tanveer Hussain Shah’s case i.e. 5-10-1999, the exemption of suit property from operation of right of prior purchase has ceased. The plaintiff-appellant cannot be non-suited on the ground of exemption of property from right of prior purchase, therefore, findings of the Courts below on this point are not according to law, hence, not sustainable. Manzoor Hussain v. Feroz Khan & another 2016 SCR 1534 (F)
  99. —Waiver—Quantum of proof— No evidence has been led that the pre-emptor was asked to purchase the land for the same amount and the amount was in his knowledge and thereafter in presence of witnesses he has refused to purchase the land in question. Bashir Khan  v. Ahmed Hussain & another 2019 SCR 279 (A)
  100.  — Waiver— Mere refusal to purchase the suit land at a high price or purchase the same at some less than demanded one has not been considered as waiver. Similarly, mere presence of pre-emptor at the time of bargain is also not considered sufficient for defeating the right of pre-emption of a pre-emptor. In some cases, even a pre-emptor was marginal witness and it was held that the attestation by the pre-emptor on the sale-deed neither established the fact that he was a consenting party. Bashir Khan  v. Ahmed Hussain & another 2019 SCR 279 (B)  
  101. —Waiver—Quantum of proof— No evidence has been led that the pre-emptor was asked to purchase the land for the same amount and the amount was in his knowledge and thereafter in presence of witnesses he has refused to purchase the land in question. Bashir Khan  v. Ahmed Hussain & another 2019 SCR 279 (A)
  102.  — Waiver— Mere refusal to purchase the suit land at a high price or purchase the same at some less than demanded one has not been considered as waiver. Similarly, mere presence of pre-emptor at the time of bargain is also not considered sufficient for defeating the right of pre-emption of a pre-emptor. In some cases, even a pre-emptor was marginal witness and it was held that the attestation by the pre-emptor on the sale-deed neither established the fact that he was a consenting party. Bashir Khan  v. Ahmed Hussain & another 2019 SCR 279 (A)
  103. —Suit for pre-emption—limitation—commencing of— under law, the period provided to enforce the right of pre-emption is four months from the date of sale or taking over the possession of sold property and not from the date of knowledge. Tahir Akbar v. Raja Tahir & others 2022 SCR 189 (A) 2006 SCR 204 rel
  104. — the law is well settled on the point that when a suit is filed by the pre-emptor, the subsequent suit filed by the vendor for cancellation of the sale-deed in question and the decree obtained without arraying the pre-emptor, will not defeat the right of preemption. Raja Khalid Khan & another v. Raja Mahmood Iqbal & others 2023 SCR 261 PLJ 1982 Lah. 272, PLD 2006 SC 448, NLR 1985 Civil 363 & NLR 2006 Civil 4 ref.
  105. — categories of persons having right of pre-emption — in case of more than one pre-emptors — Held: law is well settled on the point that in case of more than one pre-emptors, the right of prior purchase is to be determined on the rules of inheritance. Qazi Muhammad Ishaque v. Sain Muhammad (deceased) represented by legal heirs & others 2023 SCR 216 (C) PLD 1983 SC(AJ&K) 188 & 1983 CLC 2923 ref.
error: Content is protected !!