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

Section: 5

Law: Constitution of Pakistan, 1973

Section: 199

Law: Civil Procedure Code (V of 1908)

Section: O.XXI,R.35(2)

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)--- ----S. 5---Civil Procedure Code (V of 1908), O.XXI, R. 35(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Decree for joint possession of immovable property---Pre-emptor (respondent) filed suit for possession through right of pre-emption against vendees (petitioners) being co-sharer in the suit land, which was decreed in his favour---Pre-emptor filed execution of such decree against which vendees submitted an objection application with the contention that pre-emptor was granted some shares in the joint Khata and therefore, pre-emptor was entitled to only symbolic possession and not physical possession of the suit property without partition---Objection application of vendees was dismissed by Trial Court and revision filed thereagainst before court below was also dismissed---Validity---Pre-emptor was granted a decree to the extent of 1/37th share by exercising his right of pre-emption in joint khata----In view of Order XXI, Rule 35(2), C.P.C, when decree was passed in favour of a pre-emptor regarding shares out of a joint property, pre-emptor would be entitled to the issuance of warrant of symbolic possession to the extent of shares regarding which the suit had been decreed---Pre-emptor was entitled to the issuance of warrant of symbolic possession to the extent of 1/37 shares in joint khata regarding which the suit had been decreed and not a warrant of delivery of actual physical possession through partition of the land, which was not the job of the executing court, but rather that of the revenue hierarchy---Constitutional petition was accepted and impugned orders were set aside with direction to executing court for the delivery of symbolic joint possession to the pre-emptor. (b) Civil Procedure Code (V of 1908)--- ----O. XXI, R. 35(2)---Khyber Pakhtunkhwa Pre-emption Act (X of 1987), S.5---Constitution of Pakistan, Art. 199---Constitutional petition---Decree for joint possession of immovable property---Principles---When decree was passed in favour of a pre-emptor regarding share out of a joint property, pre-emptor would be entitled to the issuance of warrant of symbolic possession to the…

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