| Citation(s) |
|---|
| 1965 SLG 4657 = 1965 SLD 4657 = 1965 PLD 231 |
West Pakistan Peshawar
Regular Second Appeal No. 53 of 1962, decided on 21st May 1965,
Presented By: Shakirullah Jan, J
Allah Bakhsh v. Muhammad Abdullah P L D 1961 Pesh. 92 rel. Haji Abdul Aziz v. Shah Afzal First Civil Appeal No: 118/59 and Muhammad Nawaz v. Aghajan Civil Revision No. 199/57 (Unreported) distinguished'. Khan Abdul Latif Khan for Appellants. Khan Peer Bakhsh Khan for
Respondent No. 1. Date of hearing : 10th May 196,5.
Regular Second Appeal No. 53 of 1962, decided on 21st May 1965,
Presented By: Shakirullah Jan, J
Allah Bakhsh v. Muhammad Abdullah P L D 1961 Pesh. 92 rel. Haji Abdul Aziz v. Shah Afzal First Civil Appeal No: 118/59 and Muhammad Nawaz v. Aghajan Civil Revision No. 199/57 (Unreported) distinguished'. Khan Abdul Latif Khan for Appellants. Khan Peer Bakhsh Khan for
Respondent No. 1. Date of hearing : 10th May 196,5.
MIR AB DULLAH AND OTHERS-Appellants
VERSUS
, Mst. BIBI ASMAN PART AND OTHERS-Respondents
Law: N.W.F.P. Pre-emption Act, (XIV of 1950)
Section: 12
Law: Civil Procedure Code (V of 1908)
Section: 100
(a) N.W.F.P. Pre-emption Act (XIV of 1950), S. 12 Pre-emption on basis of being participator in immunities and appendages-Disputed Land discharging rain water on land belonging to plaintiff-Right of pre-emption available to plaintiff' as owner of servient tenement in respect of sale of dominant tenement. (b) Civil Procedure Code (V of 1908), S. 100-Finding of fact-Cannot be disturbed, however erroneous such finding may be. National Bank of India Limited v. Dost Muhammad& Bros. P L D 1957 Lah. 420 ; Abdul Majid v. Khalil Ahmad P L D 1955 F C 38 and Nadir Shah v. Lai Shah P L D 1954 Lah. 447 ref. JUDGMENT On the basis of mutation No. 1945, attested on 7-4-58, Mst. Begum Jan sold land measuring 20 kanals, 7 marlas with a 'bandi' (cattle-shed), situate in the area of village Bafa to Azimullah, who is now dead and is represented by his legal representatives, for the ostensible sum of Rs. 12,210. Mst. Asman Pari, also a resident of the same village, brought a suit for possession by pre-emption of the suit land along with a 'bandi' alleging that it was sold for Rs. 4,000, but the inflated sum of Rs. 12,210 was entered fraudulently and fictitiously with a view to ward off a pre-emption suit. Claiming superior right of pre-emption, she urged that she was the owner of the contiguous land and was also participator in the immunities and appendages, as the disputed land discharged rain water on to her land. The defendant-vendee contested the suit. He urged that the plaintiff was estoppedfrom filing the suit. The suit was barred by time, the plaintiff had no cause of action the plaint had not been properly valued for purposes of Court-fee. On merits while denying the plaintiff's superior right of pre-emption, he urged that he has purchased the suit property for Rs. 12,210, which sum was fixed in good faith and paid. The following issues were framed Has the plaintiff superior right of pre-emption ? Whether the sum of Rs. 12,210 as the sale price fixed in good faith or paid? What is the market value ? Is the suit time-barred ? Is the plaintiff estopped to file the suit ?…