Law: Khyber Pakhtunkhwa Pre-emption Act, (X of 1987)

Section: 13

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)--- ----S. 13---Transaction, nature of---Sale or exchange---Procedure---Contention of defendants was that transaction being exchange was not pre-emptible---Suit was decreed concurrently---Validity---Framing or non-framing of issues would lose significance if parties had produced their evidence---Trial Court had wrongly placed burden of proof on the plaintiff to prove exchange of land---Framing of issues and shifting burden of proof on the party who was not bound to prove the same was incorrect---Exchange of land did not fall within the ambit of sale and same was not pre-emptible---Defendants were bound to prove exchange of land as they had taken the shelter of the same to ward off right of pre-emption---Patwari halqa had neither produced 'Fard' of ownership of plaintiff nor impugned mutation had been brought on record---Right of pre-emption was substantive right and same should not be defeated by technicalities---Evidence got recorded by both the parties was deficient to reach on just conclusion---For just decision of the case it was necessary to call patwari halqa as court witness to submit relevant mutations, Fard Jamabandi of ownership of both the parties and price of land adjacent to the suit land sold out in near past---Revision was accepted and impugned s and decrees of both the courts below were set aside and case was remanded to the Trial Court with the direction to examine patwari halqa as court witness and decide the case afresh. Fazal Rehman v. Khursheed Ali and others 2004 CLC 359; Amir Nawaz Khan and 2 others v. Rahmatullah Khan 2010 CLC 1474; Muhammad Ashraf v. Haji Muhammad Yar and 3 others 2012 MLD 1426 and Said Kamal Shah's case PLD 1986 SC 360 rel. JUDGMENT MUHAMMAD DAUD KHAN, J.--- Through this revision petition, the petitioners challenged the judgment and decree of learned Additional District Judge/Izafi Zilla Qazi, Matta dated 29-11-2011, vide which the appeal preferred by petitioners against the judgment and decree of Civil Judge/Illaqa Qazi, Matta dated 31-5-2011, was dismissed and maintained the decree of learned trial Court whereby suit of respondent/plaintiff for possession through…

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