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

Section: 2(d),5

Summary

The Court held that the transaction recorded in Mutation No. 3437 dated 5th November 2008 was an exchange and not a sale; therefore, the plaintiff was not entitled to the right of pre-emption under the Khyber-Pakhtunkhwa Pre-emption Act. The judgments and decrees of the lower courts were set aside, dismissing the plaintiff’s petition while allowing the defendant’s appeal.

Core Points

• The dispute involved a land transaction classified by the parties as an exchange for better management, but the plaintiff claimed it was a disguised sale.
• The trial court incorrectly shifted the burden of proof to the defendant, concluding the transaction was a sale without sufficient evidence.
• Plaintiff failed to present credible evidence of payment or promise of price to prove sale; the mutation and witness testimony confirmed it was an exchange.
• The right of pre-emption under Section 5 of the Act applies only to sales, not exchanges.
• Courts must strictly construe the right of pre-emption and require clear, convincing proof that a transaction is a sale.
• In cases of ambiguity or multiple interpretations, the transaction should not be classified as a sale.
• The High Court’s dismissal of revision applications was flawed; the appellate Court set aside those judgments, dismissing the plaintiff’s suit.

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