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

Section: 2(d),13

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)--- ----Ss. 2(d) & 13---Suit for possession through pre-emption---Sale---Scope---Transaction in the nature of a gift not a sale---Right of pre-emption arises when the sale of land occurs---Sale, as per the definition provided in section 2(d) of the Khyber Pakhtunkhwa Pre-emption Act, 1987, does not include a gift---In the present case, the land was first sold to "M", and before this sale could be pre-empted by the respondent (pre-emptor), it was further transferred to "M's" sons (present appellants) by way of gift mutation---Person is entitled to evade law of pre-emption by all lawful and legitimate devices, like gift, exchange etc.---So, in the given circumstances of the case, respondent (pre-emptor) could not ignore the gift mutation while making his demand---Appropriate course for him was to say, firstly, that the second transaction was a sale (dubbed as a gift), meant to defeat his right of pre-emption; and secondly, that he had made all the requirements of Talbs regarding the second transaction---On the contrary, a perusal of the contents of the plaint showed that neither any Talb was made to pre-empt the second transaction nor any notice of Talb-i-ishhad was sent to the present appellants, which was fatal for his case---Appeal was allowed, and order of Revisional Court, whereby it rejected the plaint of the respondent, was restored. ORDER SHAHID WAHEED, J.---The defendants are the appellants in this appeal. 2. The suit by respondent No.1 (plaintiff) was one for possession under the Khyber Pakhtunkhwa Pre-emption Act, 1987 (Act). The subject matter of the suit was land measuring 1-Kanal, 9-Marlas, and 4-1/2 sarsahi, which was sold to Mst. Gul Zahira Bibi (now represented by her legal heirs), respondent No. 2 herein, vide mutation No.1809 dated 28th of November, 2012. A perusal of the record suggests that immediately upon sanctioning of sale mutation, Mst. Gul Zahira Bibi gifted the land to her sons (appellants herein) by mutation No.1810. 3. The respondent No.1 (plaintiff), on the ground of his superior right, sought to pre-empt the sale made in favour of Mst. Gul Zahida Bibi and asserted that the…

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