Critically evaluate the case laws given in the light of pre-emption act, 1991

and extract the legal principle

(Assignment 2)

Course: land laws

Submitted to: Ms. Munazza

Submitted by: Fehmida kanwal

(Registration No: LLB-2017-05)

Semester: LLB-IV (2017-2022)

Spring 2020

Date of Submission: May 5, 2020

Department of Law
Fatima Jinnah Women University, Rawalpindi
Content
s
1. Introduction to pre-emption Act 1991.........................................................................................1
2. Liaquat khan V Muhammad Ibrahim Khan.................................................................................3
2.1 Facts.......................................................................................................................................3
2.2 Issue.......................................................................................................................................4
2.3 Judgment................................................................................................................................4
2.4 Legal principle.......................................................................................................................4
2.5 Critical analysis of this case...................................................................................................5
3. Badl (deceased) through his L.Rs and others V Lashkari (deceased) through his L.Rs and
others................................................................................................................................................5
3.1 facts........................................................................................................................................5
3.2 Issues......................................................................................................................................7
3.3Judgment.................................................................................................................................7
3.4 Settled legal principle.............................................................................................................8
3.5 Critical analysis of this case...................................................................................................8
4. ABDUL AZIZ V. Sheikh FATEH MUHAMMAD....................................................................9
4.1 Facts.......................................................................................................................................9
4.2 Issues....................................................................................................................................10
4.3 Judgment..............................................................................................................................10
4.4 Legal principle.....................................................................................................................11
4.5 Critical analysis of this case.................................................................................................11
5. Bibliography..............................................................................................................................13
Abstract
The right to have an offer of an intended sale is inherent in and continuously attached to the pre-

emptive property and passes along with it to transferred individuals, delegated persons, legal

representatives and heirs. In other words, it is a right attached to, and is inseparable from, the

pre-emptive property. This right is transferable through the transfer of the pre-emptive property.

Throughout this assignment I will talk about right of pre-emption through different case laws.

i
1. Introduction to pre-emption Act 1991

Right of preemption means the right of a person to purchase a property sold to another in

preference to that other person by paying a price equivalent to that agreed or paid by the later;

and its origin in the Muhammadan system is due to reasons of convenience and a desire to

prevent the entry of a foreigner among co-sharers and neighbors likely to cause inconvenience.

The phrase preemption consists of two words: prae means before, and emptio means purchase or

purchase. 'shuffa' simply means the amalgamation or merger of a property with another property

as the pre-emptor property is co-joined with the sold land. Legally, it means being the owner of

the property sold on payment of the price paid by the seller even if he does not agree to it.

Accordingly, the right of preemption requires the right to obtain an immovable property by

purchase in preference to another person on the grounds of that right. 1

Hence the right of preemption means the right to obtain an immovable property by acquisition in

preference to another person on the basis of such a right. As part of the Islamic legal system,

preemption laws are derived directly from one of the primary sources of Islamic law, i.e. Sunnah.

Sunnah. It was implemented via judicial decisions in the Sub-Continent during the Muslim rule.

Under Muslim administration these were uniformly enforced regardless of faith, sex, and

ethnicity. Even now in Pakistan the same applies without prejudice to Muslims and non-Muslims

alike. As a special privilege, preemption is an exception to the general selling and purchase rule,

and by this privilege preemptor may demand revocation of a legal sales contract for an

immovable property. If pre-emptor is successful in his argument, the seller of sold immovable

1
MAHWISH MOAZZAM, An Introduction to Pre-emption Act Pakistan, https://www.pljlawsite.com/2011art27.htm.

1
property is obliged, after obtaining the selling price, to turn over the property to him, whether or

not he wishes to do so with free will.2

The objects of the pre-emption laws are several layers, including but not limited to:

 Exclude the outsider from a particular neighborhood

 Maintain the dignity and homogeneity of a particular community

 Promote family comfort

 Safeguard native feelings as regards privacy and elitism; and ·

 Avoid disintegration of holding

As only following three classes of persons are entitled to claim this right:

 Shafi-e-Sharik    (co-owner of the property sold)

 Shafi-e-Khalit     (participator in easement rights over the property sold)

 Shafi-e-Jar          (neighbor, owner of immovable property adjacent to the sold property)

In order to claim a pre-emption, the pre-emptor must follow the procedure specified below,

 Talab-e-Mawathibat ·

 Talab-e-Ishhad ·

 Talab-e-Khusumat

Talab-e Mawathibat literally means a 'jumping demand' or immediate demand, where the pre-emptor has

to declare his intention to immediately assert his right to receive sale information.

In Talab-e-Ishhad, pre-emptor after Talab-e-Mawathibat's declaration must confirm his intention with the

least possible delay; specifically referring to the fact that Talab-e-Mawathibat has already been made a

either in the presence of the purchaser or seller, or in the premises to be sold

2
MAHWISH MOAZZAM, An Introduction to Pre-emption Act Pakistan, https://www.pljlawsite.com/2011art27.htm.

2
Talab-e-Khusumat is the third claim which is litigation evidence. The pre-emptor does this by filing pre-

emption suit in a court of competent jurisdiction to enforce his right of preemption. 3

2. Liaquat khan V Muhammad Ibrahim Khan

2.1 Facts
 property in dispute was purchased by respondent through Mutation No. 148 attested on

26-5-1999

 Plaintiff filed suit to challenge impugned sale which had affected his right of pre-emption

and claimed to have performed Talb-e-Mawathabat immediately and thereafter Talb-e-

Ishhad

 Trial Court after recording evidence of the parties dismissed the suit

 Impugned sale had taken place and attested on 26-5-1999 whereas through Exh. D2,

which is Mutation No.149 also attested on the same day by Arshad and others, sons of the

respondent who had alienated by way of sale and land measuring 6 Kanal, 4 Marlas in

favor of the present petitioner just after the impugned sale and at the relevant time Mst.

Shahnaz

 Attestation of the impugned mutation was done in presence of wife of the plaintiff which

had been mutated along with other mutation of another sale on the same day

 Petitioner had come to know about impugned sale on the same day when it was attested,

therefore, his claim of having acquired knowledge on another date could not be accepted

in peculiar facts and circumstances of the case

 High Court declined to interfere with the concurrent findings of the Trial Court and the

Appellate Court..4

3
MAHWISH MOAZZAM, An Introduction to Pre-emption Act Pakistan,
https://www.pljlawsite.com/2011art27.htm.
4
Liaquat khan V. Muhammad Ibrahim, (2010) YLR 42 (Pak.).

3
2.2 Issue
 The first issue in this case is that whether mutation is impugned or not?

 And second is that petitioner is aware of sale at that time when sale occur or on some

other date he came to know about this sale.

2.3 Judgment
Attestation of the two mutations i.e. impugned mutation and Mutation N'o.149 by way of which

the sons of the respondent mutated multiple pieces of land at the same time and that in the

presence of Mst 'Shahnaz too. The wife of the petitioner, Shahnaz Akhtar, cannot be inferred

other than that on the same day the petitioner had become aware of the impugned offer.

Consequently, its assertion of information acquired on 18-7-1999 cannot be recognized in the

specific facts and circumstances of the case. The concomitant decisions of the Courts below

cannot conflict with what has been mentioned above. This petition has no validity, and is

therefore denied.5

2.4 Legal principle

To maintain right of preemption one must satisfy court that the talab should be appropriate one

and the condition for talab must be fulfill. A person cannot claim talab of pre-emption right

where he has already know about the sale of property or circumstances of case make it clear that

he has already know about facts of sale of property than he is claiming talab therefore right of

pre-emption under talab is not valid. It can be noted that the ownership of petitioners was

secured by annual deposit of mesne profit with the Court of learn trial court. The same shall be

disbursed to the respondent if the said profits have been deposited, and if the same has not been

deposited, the learned executing court may determine the same which may be recovered via

execution process. High Court ordered the vendor to disburse the mesne profits if deposited by

5
Liaquat khan V. Muhammad Ibrahim, (2010) YLR 42 (Pak.).

4
the pre-emptor otherwise executing court will assess the same and recover from the pre-emptor

through execution method.

2.5 Critical analysis of this case

In this case it is clear that for maintaining right of pre-emption one must satisfy the court with all

their evidences that the right of pre-emption is maintainable at these grounds and where if there

is any doubt or plaintiff is not able to satisfy court that right of pre-emption cannot be maintain.

This case is file under section 2(d) and 5 of pre-emption Act 1991.6 Section 5 says that the right

of pre-emption shall arise in case of sale of immovable property.7 In this case it is clear that the

petitioner challenge the sale of immoveable property under section 4 but the evidence shows that

the sale of immoveable property is not impugned and petitioner is aware of sale of property at

same day when sale has been occur so right of pre- emption cannot be maintain by petitioner and

case is dismissed.

3. Badl (deceased) through his L.Rs and others V Lashkari (deceased) through
his L.Rs and others
3.1 facts
 · The petitioners' predecessors, namely Badl son of Allah Bakhsh, Imam Bakhsh son of

Ali Murad and Wahdoo son of Razi ('the petitioners') filed a lawsuit seeking pre-emption

rights in compliance with paragraph 25 of the Land Reform Regulation, 1972 Acts.

 On 29 May 1983, the Plaintiffs filed a pre-emption lawsuit challenging the sale mutation

No. 642, approved on 30 March 1983 by its owner Ahmed Khan to Lashkari, Ibrahim and

Faiz Ahmed, respectively, for the sale of land measuring 47 channels and 8 marls ('the

land').

6
The Punjab Pre-emption Act S 2(d), no 9 of 1991, PAK.CODE.
7
The Punjab Pre-emption Act S 5, no 9 of 1991, PAK.CODE.

5
  · The land was sold for eighty two thousand nine hundred and fifty rupees according to

the sale mutation (Rs.82,950/-). The purchase price was questioned in the suit and it was

claimed that the price had been charged to deprive the claimants of preempting the sale

and that the amount actually paid to the landowner Ahmed Khan by the contested

respondents was 77,000,350. 8

 The plaintiffs argued that, because they were tenants of the Land, they were entitled to

preempt its sale at the price of Rs.77,350/- in compliance with paragraph 25(3)(d) of the

Law. The disputed Respondents denied that they had paid Ahmed Khan only Rs.77,350/-

and not Rs.82,950/- as the sale price, and also denied that the Plaintiffs were Ahmed

Khan tenants.

 Mr. Muhammad Ibrahim Satti, the learned senior counsel who defended the petitioners,

the legal heirs of the plaintiffs, claims that while the pre-emption suit was dismissed at

the same time, they had all misread the facts and even ignored the fact that the plaintiffs

were tenants. He submits that since the case was resolved by the AC on 10 October 1984

in favor of the plaintiffs.

 Mr. Aftab Alam Yasir, the learned lawyer representing the challenged Respondents,

states that the case against the Plaintiffs is determined by all the fora below, both on the

facts and on the rule, by dismissing their claim and no request is made for the grant of

leave. He further notes that Imam Bakhsh (applicants to No. 2 are his legal heirs) was a

Mustajir (lessee) and was therefore not entitled to invoke the provisions of paragraph

25(3)(d) of the Regulation because he was not a tenant and relies on Mohd's case in this

regard.

8
Badl and other V. Lashkari and others, (2018) SC 611(Pak.).

6
  The learned counsel next argues that Imam Bakhsh revealed himself to be a mazaray-

taab-e-marzi, which was not true as he was a mustajir and his co-plaintiff Wahdoo was a

tenant of Imam Bakhsh, and therefore not a tenant of Ahmed Khan.

 Responding to the request concerning the ejection proceedings claimed to have been

brought by the challenged respondents The learned counsel states that the referred

document does not form part of the record and is also shown to be relevant to the year

2007, which is long after the suit has been brought, and thus has no effect on the merits of

the pre-emption suit filed by twenty-four year earlier.

 The order of the AC was challenged by both sides and was set aside by the Additional

Commissioner. The Plaintiffs challenged the AC’s decision before the Commissioner,

Bahawalpur, and once again the case was remanded to the AC, and the AC again,

dismissed the suit. The Plaintiffs filed Writ before the Lahore High Court.9

3.2 Issues
Petitioners are tenants of respondent or nor?

Plaintiff follows the order of AC or not?

3.3Judgment
On finding it was argued that thus the plaintiffs did not comply with the AC's order for the profit

they say. They did not exercise their right of preemption, nor did they pay / deposit the sale

consideration within a reasonable period of the order of the AC dated October 10, 1984. The

findings concerning Imam Bakhsh being a mustajir (lessee) are derived from the exhibits we

have seen, therefore Imam Bakhsh was not a 'tenant' in accordance with paragraph 25(3)(d) of

the Regulation. The documented exhibits further indicate that another complainant, Wahdoo, was

a tenant of Imam Bakhsh, so Imam Bakhsh was Wahdoo's landlord and as such Wahdoo could

9
Badl and other V. Lashkari and others, (2018) SC 611(Pak.).

7
not be Ahmed's tenant Khan, the seller of the Land. Therefore, neither Imam Bakhsh nor

Wahdoo could have initiated right of pre-emption in the Land. Badl had joined two others (Imam

Bakhsh and Wahdoo) in the suit which would attract doctrine of sinker. Badl had joined those

who did not have the right to circumvent the preemptive right of Badl's land should sink. Hence

complaint dismissed here.10

3.4 Settled legal principle

According to the doctrine of sink the right of preemption of the original tenant would vanish if

he sinks those who are not the original tenants of the landowner against whom the right of

preemption is asserted. And if a person holds a lessee status, he cannot but claim a right under

section 25 of the law on tenancy.

3.5 Critical analysis of this case

As the facts of the case is above mention the petitioner who claim right of preemption under

paragraph 25 of land reform regulation 1972 where they claim to be a tenant but when

investigation occur it has been clear that Imam Bakhsh is not tenant he is lessee and lessee don’t

come under definition of tenant. Plaintiff exercise the right of pre emotion to such order and paid

the sale consideration (Rs.82,950) and if so when did they do so. The exhibits on record further

show that another Plaintiff, Wahdoo, was a tenant of Imam Bakhsh, therefore, Imam Bakhsh was

the landlord of Wahdoo and as such Wahdoo could not be a tenant of Ahmed Khan, the seller of

the Land. 11Therefore, neither Imam Bakhsh nor Wahdoo could have initiated right of pre-

emption in the Land so the doctrine of sinker is attracted and where doctrine of sink is attracted

the right of pre-emption is disposed of and cannot maintain suit for pre-emption so petitioners 2

and 3 are not tenant therefore right of pre-emption is vanish. For claiming right of pre-emption

10
Badl and other V. Lashkari and others, (2018) SC 611(Pak.).
11
Badl and other V. Lashkari and others, (2018) SC 611(Pak.).

8
one must be clean hand if anything contrary happen and finds that the person is not clean hand he

cannot claim right of pre-emption.

4. ABDUL AZIZ V. Sheikh FATEH MUHAMMAD

4.1 Facts
The land measuring 8 Kanals, 9 Marlas was sold to Abdul Aziz, appellant in the present appeal

and the sale was pre-empted by the respondent herein, on the ground of common right of passage

and irrigation. The suit was contested by the appellant mainly on the ground that the land falling

within the limits of Municipal Committee, Bhakkar was not pre-emptible and that the

requirement of Talbs for exercise of right of pre-emption was also not fulfilled in accordance

with law. The learned Senior Civil Judge, Bhakkar having come to the conclusion that neither

suit-land was pre-emptible nor plaintiff fulfilled the essential conditions of Talb-i-Muwathibat

and Talb-i-Ishhad for exercise of right of pre-emption, dismissed the suit and appeal filed by the

pre-emptor was also dismissed by the learned District Judge. However, the learned Judge in

Chambers in the High Court reversed the concurrent findings of the two Courts on the above

question in the civil revision filed by the pre-emptor with the observation that the land subject-

matter of sale, being an agricultural land, was not exempted from law of pre-emption and that the

requirement of Talbs for exercise of right of pre-emption was also fulfilled by the pre-emptor in

accordance with law and accordingly allowed the civil revision.12

4.2 Issues
 whether the High Court without pointing out misreading or non-reading of evidence

could interfere in the concurrent findings of the two Courts on the question of non-

performance of requirement of Talbs in its revisional jurisdiction

12
Abdul Aziz V. Sheikh Fateh Muhammad, (2007) SCMR 336(Pak.).

9
  Whether the suit-land being situated within the Municipal limits of Bhakkar, would not

acquire the status of urban immovable property and would remain subject to law of pre-

emption.

 What would be the effect of the judgment of the Shariat Appellate Bench of this Court by

virtue of which section 2(a) was declared repugnant to the Injunctions of Islam to the

extent of restriction on the pre-emptibility of urban immovable property.13

4.3 Judgment
The provisions of the Punjab Pre-emption Act of 1991 relating to the pre-emption law relating to

the exemption of urban immovable property were challenged to be repugnant to the injunctions

that the exemption of all immovable properties situated in urban areas does not fulfill Zaroorat's

demand that a specific property be exempted in Shariah from the application of the law of pre-

emption. Agricultural land situated in urban areas may or may not gain the status of urban

immovable property and change its character to claim exemption from the pre-emption law, but

the mere fact that, before the inclusion of agricultural land in the cantonal area / municipal

boundaries, the land was subject to the pre-emption law would not be an ipso facto proof that it

retained its agricultural character. The true test to determine the question of character of land, is

the use of land located within the boundaries of municipal area and cantonment to bring or

exclude it from the purview of pre-emption law therefore, This is not disputed that agricultural

land despite becoming part of town, may not change its character but the question whether a

particular land having become part of town, has not changed its character is a pure question of

fact and burden of proving this fact, would be on the pre-emptor who claimed right of pre-

emption. The presumption concerning the agricultural character of the land cannot be raised

merely because it was agricultural land before it became part of the city, rather the assumption

13
Abdul Aziz V. Sheikh Fateh Muhammad, (2007) SCMR 336(Pak.).

10
would be that it acquired the status of urban immovable property after becoming part of the

municipal or cantonal sector. The pre-emptor must determine the existence of the right of

preemption on the date of sale, the date on which the suit is instituted and the date on which the

decree is passed and must also satisfy Talbs' necessary requirement for the exercise of the right

of preemption. Appeal is allowed for these purposes.14

4.4 Legal principle

Legal theory The precedent according to which Section 2(a) of the Punjab Pre-emption Act,

1991 is repugnant to the degree that it forbids all urban immovable property residing within

municipal and cantonal limits. With respect to all immovable property found in metropolitan

area, no retrospective effect will no longer be removed from the right of pre-Emption. The pre-

emptor would be under a heavy pressure to show that the land preserved its agricultural character

even after being part of the city for the purpose of preemptive law. The grant or denial of the

right shall not depend on the observance or non-compliance of the technicalities of the

procedural rule, the pre-emptor should have confirmed the presence of the right of preemption on

the date of sale, the date of the complaint and the date of passage of the decree and satisfied the

Talbs' requirements for the exercise of the right of the right of pre-emption.

4.5 Critical analysis of this case

The provisions of the Punjab Pre-emption Act of 1991 relating to the pre-emption law relating to

the exemption of urban immovable property were challenged to be repugnant to the injunctions

that the exemption of all immovable properties located in urban areas does not satisfy Zaroorat's

requirement that a particular property be exempted in Shariah from the application of the law of

pre-emption. Agricultural land situated in urban areas may or may not gain the status of urban

14
Abdul Aziz V. Sheikh Fateh Muhammad, (2007) SCMR 336(Pak.).

11
immovable property and change its character to claim exemption from the pre-emption law, but

the mere fact that, before the inclusion of agricultural land in the cantonal area / municipal

boundaries, the land was subject to the pre-emption law would not be an ipso facto proof that it

retained its agricultural character.

5. Bibliography

The Punjab Pre-emption Act S 2(d), no 9 of 1991, PAK.CODE.

The Punjab Pre-emption Act S 5, no 9 of 1991, PAK.CODE.

The Punjab Pre-emption Act S 2(a), no 9 of 1991, PAK.CODE.

12
Abdul Aziz V. Sheikh Fateh Muhammad, (2007) SCMR 336(Pak.).

Badl and other V. Lashkari and others, (2018) SC 611(Pak.).

Liaquat khan V. Muhammad Ibrahim, (2010) YLR 42 (Pak.).

MAHWISH MOAZZAM, An Introduction to Pre-emption Act Pakistan,

https://www.pljlawsite.com/2011art27.htm.

13