THE

Punjab Pre-Emption Act, 1991

THE

PUNJAB PRE-EMPTION ACT, 1991

(IX OF 1991)

6th April, 1991

An Act to bring in conformity with

the Injunctions of Islam the law relating to Pre-emption

No. Legis. 2(5)/90/18, dated 6th April, 1991. The Punjab Pre-emption Bill, 1990, having been passed by the Provincial Assembly of the Punjab on the 21st day of March, 1991 and assented to by the Governor of the Punjab on the 31st day of March, 1991, is hereby published as an Act of the Provincial Assembly of the Punjab.

Preamble.

Whereas, it is expedient no re-enact the existing law relating to pre-emption, so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur’an and Sunnah; It is hereby enacted as follows.

1. 1. Short title extent and commencement. (1) This Act may be called the Punjab Preemption Act, 1991.

(2)        It extends to the whole of the Punjab.

(3)        It shall come into force at once.

2. 2. Definitions. In this Act, unless there is anything repugnant in the subject or context.

(a)        ‘Immovable property’ means immovable property situated in any area other than an urban area or within cantonment limits as declared by any law relating to Local Bodies or Cantonments, as the case may be, for the time being in force;

(b)        ‘Pre-emptor’ means a person who has the right of pre-emption;

(c)        ‘Right of pre-emption’ means a right to acquire by purchase an immovable property in preference to other persons by reason of such right; and

(d)       ‘Sale’ means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by .way of ‘hiba-bil-iwaz’ or ‘hiba ba shart-ul-iwaz, but does not include-

(i)         transfer of an immovable property through inheritance or will or gift, other than ‘ hiba-bil-iwaz’ or ‘hiba ba shart-ul-iwaz;

(ii)        a sale in execution of a decree for money or of any order of a civil, criminal, revenue or any other*Court or a Revenue Officer or any local authority.

(iii)       exchange of agricultural land; and

(iv)       transfer of an immovable property for a consideration other than valuable consideration, such as the transfer of an immovable property by way of lower or composition in a murder or hurt case.

Court Decisions

Stages at which such right was available. Right of pre-emption was available at four different stages viz; at the time of sale of property in question; at the time of institution of suit; at the time of decree of suit; and at the time of execution of decree. Right of pre­emption being not available to plaintiff on two stages t.e./ at the time of sale of property and at the time of institution of suit, rejection of his plaint in suit for .pre-emption was un-exceptional.-P.L.J.2000 Lah. 909.

Immovable property. Whether Section 2 is repugnant to Injunctions of Islam. Contention that a property can be exempted from pre-emption on basis of necessity, to avoid frivolous suits, therefore, exemption of urban areas should not have been declared repugnant to Injunctions of Islam. In Islamic law of pre-emption, there are only three categories of pre-emptors which cannot be increased. Moreover, suit for pre­emption cannot be filed unless plaintiff has made three kinds of Talbs within a few months. In view of these restrictions, frivolous suits cannot be filed if pre-emption law is applied to urban areas. Section 2of Act is repugnant to Injunction of Islam to extent that it excludes all urban properties and properties within Cantonment limits from application of Act.  P.L.J.1994 SC 221 = PLD 1994SC 1.

Plea of defendants that land in question, being situated within Municipal Limits, was not covered by provision of S. 2of Punjab Pre-emption Act 1991 was not decided by Courts below – Case was thus, remanded to trial Court for decision of the suit on basis of assertions, in pleadings.  P.L.J. 2002 SC 145

Dismissal of pre-emption suit on the ground that property in question, being immovable urban property was situated within cantonment limits and, thus, not pre-emptible in terms of S. 2, Punjab Pre-emption Act, 1991. Validity. Sale in question, took place on 17.8.1993; suit was instituted’on 16,12.1993; on both such dates urban immovable property or property situated within cantonment limits, was not pre-emptible as Section 2Punjab Pre­emption Act, 1991 as attracted to such property. Judgment of S.C.( P.L.J.1994 SC 221) had declared provision of Section 2Punjab Pre-emption Act, 1991 being repugnant to injunctions of Islam to the extent that the same excluded all urban properties and property situated within cantonment limits, permanently from the application of the Act and made its Judgment effective from 31.12.1993. S.C.had not made effective its Judgment retrospectively which means that right of pre-emption on urban immovable property and property situated within cantonment limit, was available with effect from 31.12.1993 and not on 17.8.1993 when sale took place and on 16.12.1993, when suit was instituted,, plaint was thus, rightly rejected by Courts below. No illegality in impugned Judgment, having been pointed out, no interference was warranted in the same.  P.L.J.2000 Lah. 909.

3. 3. In the interpretation and the application of the provisions of this Act, the Court shall speak guidance from the Holy Qur’an and Sunnah.

Court Decisions

Sale, whether divisible or not—Criteria for determination stated, PLD 2003 Lah. 245

4. 4. Act to override other laws. The provisions of this Act shall have effect notwithstanding anything in any other law for the time being in force.

Court Decisions

Pre-emptor claimed to be a collateral of vendors, whereas vendees pleaded to be tenant in suit land—Trial Court decreed the suit, while appellate Court partly accepted appeals of vendees founding that pre-emptor had no right of pre-emption to the extent of one vendor being his collateral and excluded her share—Contention of one of the vendee was that his share was specified in sale-deed and he having been proved to be a non-occupancy tenant in suit land, was entitled to retain land to the extent of his share—Validity—Plea had not been taken that sale was divisible and that vendees had contributed the price in accordance with their respective shares—Vendees could not take such a plea in their written statement for having pleaded that all of them were tenants in suit sale price in lump sum from vendees at the time fo registration—Vendee/appellant while appearing as witness stated that sale took place for Rs. 35, 000 and his share was 3/4^th and he paid amount separately in such proportion—Such fact had not been stated in sale-deed—other witness after making statement similar to that of appellant/vendee had admitted that such fact was neither noted in registered sale-deed not his presence was recorded therein—Nothing turned in favour of vendees on the basis of sale-deed—Another witness could not explain as to how the amount was contributed and when and how same was separately paid—courts below had rightly found that sale was not divisible—Appellant/vendee could not be allowed to retain land purchased by him on the ground that he being a non-occupancy tenant therein had joined strangers with him- High court dismissed the appeal in circumstances. PLD 2003 Lah. 245

Defendant’s failure to challenge finding on specific issue before First Appellate Court and to incorporate ‘ such point in the memorandum of second appeal – Effect–­ Defendant had set up plea of exchange in his written statement which was found to be illogical and not borne out from the -record – Defendant had failed to challenge such finding before First Appellate Court and to incorporate such

point in memo. of second appeal – Defendant was thus precluded to raise such question in second appeal. P L D 1993 Lah. 168

Suit barred by limitation on account of supply of deficit court-fee-Plaintiff not required to obtain statement of net profits before filing suit for pre-emption -Failure of plaintiff to obtain statement of net profits will operate against him when considering question of entertaining court-fee, if same was supplied after institution of suit on, (or even without) objection from defendant or Court-Right of pre-emption established-Court cannot refuse such right in exercise of discretion-Piaintiff cannot be deprived of his right for mere lapse of time unless there had been abandonment, acquiescence or waiver or at least, an alteration in position of defendant in that other party has been put in a situation in which it would not be reasonable to place him, if remedy were afterwards to be asserted-Mere fact that plaintiff waited till last day of limitation would not disentitle him to any relief, discretionary or otherwise simply because plaintiff availed of full period of limitation. P L D 1984 S.C.157

Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 S C 821; Ghulam Nabi and others v. Seth Muhammad Yaqub and others P L D 1983 S C 344 and Fateh Muhammad v. Abdul Ghani and another P L D 1981 S C 371 ref.

Relevant net profits of land wrongly assessed or not assessed at all, or if assessed statement not made available to plaintiff within period of limitation or even if plaintiff obtained statement same appeared to be tainted with overwriting or forgery and plaintiff not taking any risk and not filing-Held, law of limitation or for that matter pre-emption, did not in any way provide that if and when plaintiff files a suit without statement of net profits, same shall be deemed that plaintiff acted illegally or dishonestly. P L D 1984 S.C.157

Plaintiff making application for supply of relevant statement of net profits on day he filed suit with understanding therein that as and where proper court-fees is determined plaintiff would pay same ; together with his application on receipt of said statement, for submission of proper court-fees worked out on basis thereof-Challan for purchase of court-fee stamps submitted with such application was for proper – court-fees and accordingly amount was deposited-Held, it was an amply fit case for allowing request of plaintiff made (amongst other provisions) under S. 1.49, C. P. C.-Failure to exercise discretion in favour of plaintiff in such case was on account of misunderstanding of legal question of limitation and liable to be corrected by High Court-High Court having not corrected question of limitation, S.C.allowed appeal, set aside Judgment and decree and allowed application of plaintiff seeking permission to pay court-fees and simultaneously producing challans of deposit of court fees with necessary consequences that suit as instituted would in law be deemed to have been filed with proper fee-Case and record remitted to trial Court for determination on merits. P L D 1984 S.C.157

Payment of court-fees in pre-emption suit on determination of value of subJect-matter in that behalf through (prevalent) practice of calculation on basis of annual net profits, held, has led to unfortunate long delays, unnecessary expense and unnecessary litigation on hypertechnical issues-Attempts also made to misuse law and practice in order to obtain undue advantage-Amendment in relevant law suggested.

The experience so far gained regarding the payment of court-fee in preemption suits on determination of the value of the subJect-matter in that behalf through the prevalent practice of calculation on the basis of the annual net profits, has led to unfortunate long delays, unnecessary expense as also unnecessary litigation on hypertechnical issues. Sometimes attempts are made to misuse the law and practice in order to obtain undue advantage. It is appropriate that the concerned agency should examine the feasibility of amending the law regarding court-fee in pre-emption cases (at whatever limit of valuation it is decided to levy) on the basis of the sale price asserted by the vendee as paid by him. On account of devaluation and widespread inflation the value of immovable property has increased many times. If a pre-emptor is ready to pay the price paid by the vendee or whatever is determined by the Court, as the price payable by him, he should be ready to pay the court-fee accordingly (if, of course, on principle the court-fee is made leviable as the limit of the value concerned) In cases where ultimately the amount of court-fee determined by Court as payable, on a claim to be presented by the plaintiff, is found to be less than what was originaily paid by him at the time of the filing of the suit, the excess amount could be refunded in accordaace with law. The principle and procedure for refund of income-tax paid in excess of the due amount can, with advantage mutatis mutandis be adopted in this behalf also: P L D 1984 S.C.157

Pre-emption. Benami transaction has Judicial recognition and is permissible under law, therefore, it cannot be said that such question does not fall within purview of Section 4 of Pre-emption Act. If it is found that sale transaction in question is Benami and that pre-emptor has no preferential right of pre-emption as against real owner, for whom Benamidar stands as a trustee, suit for pre-emption in respect thereof would not succeed. As findings of courts below that respondents/vendees were Benamidar for Farzand Ali against whom appellant had no preferential right of pre-emption, have not been challenged, suit was rightly dismissed.  P.L.J.1995 S.C. 541 = 1995 SCMR 1276.

            Pre-emption. First part of Section 4 deals with right of pre­-emption while second part empowers court to enquire into nature of transaction under pre-emption as such right arises of a sale or foreclosure to redeem. Court as such is not debarred from going into all questions raised in respect of sale including its Benami nature and once sale is questioned it becomes duty of court fco determine such questions.-P.L.J.1995 S. C. 541 = 1995 SCMR 1276.

5. 5. Right of pre-emption. (1) The right of pre-emption shall arise in case of sale of immovable property.

Court Decisions

Right of pre-emption :– Right of pre-emption arises only in case of sale of immovable property vide S. 5 of Punjab Pre-emption Act, 1991, as same can take place either by registration of sale-deed or otherwise as provided under S. 30 of Punjab Pre-emption Act, 1991, when title of said property as required by law is passed on to vendee i.e. where deed of conveyance is registered or otherwise. Such right of pre-emption to pre-emptor does not arise when public notice is affixed as registration of a document is not a thing of which either executant, i.e. vendor, or vendee has to do anything in that direction as such act is to be performed after execution of a document by parties by officer appointed by law for that purpose. Per Hamid Ali Mirza, J.-P.L.J.2001 SC 1232 = PLD 2001 SC 499.

Contention of the defendants that the plaintiff had failed to bring on record the jamabandi pertaining to the period, when the decree was passed, would mean that according to such contention, the plaintiff must have alienated the property, or was divested of his ownership during the pendency of the suit—Validity—Held, in order to prove, if such an eventuality had occurred, no evidence had been led meaning thereby that on the basis of the documents on the record the plaintiff continued to be the owner in the estate at all stages relevant for the Purposes of sustaining a pre-emption action. PLD 2003 Lah. 544

Claim of superior right of pre-emptors being owners in the estate—Contentions of the defendants, inter alia, were that the plaintiff did not have the superior right and that the property in question was originally an evacuee property, which had been transferred in favour of the allottee and thereafter, purchased by the vendee, and the settlement fee having not been paid to the Settlement Department, the property was not pre-emptible—Validity—Land had permanently been settled upon the transferee in view of amended S. 16 of the Displaced persons (Land Settlement) Act, 1958 which he sold in favour of the vendees, therefore a valid sale was made in favour of the vendees which was pre-emptible under the law—Property was validly transferred in favour of the vendees on account of sale and it did not lie in their mouth to plead that the sale was invalid, because of the non-payment of the settlement fee as the sale qua the vendees had been effected through registered deed—Civil Court, in circumstances, had the jurisdiction to decide the pre-emption action in circumstances. PLD 2003 Lah. 544

Principal of sinker, If a person having a right of pre-emption, who joined as a plaintiff, subsequently at any point of time, withdrew from the proceedings or due to inaction in filing appeal against the judgment and decree, which went against him, the whole suit could not be dismissed on the principle of sinker on account of such conduct of the said person. PLD 2003 Lah. 544

6. 6. Persons in whom the right of pre-emption vests. (1) The right of pre-emption shall vest-

(a)        firstly, in Shafi Sharik;

(b)        secondly, in Shafi Khalit; and

(c)        thirdly, in Shafi Jar.

Explanations. I. ‘Shafi Sharik’ means a person who is a co-owner in the corpus of the undivided immovable property sold.

Explanation. II. ‘Shafi Khalit’ means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation.
Explanation. III. ‘Shafi Jar’ means a person who has a right of pre-emption because of owing an immovable property adjacent to the immovable property sold.

• Notwithstanding anything in sub-section (1), the right of pre-emption shall be exercisable only in case of ‘Zaroorat’ or to avoid ‘Zarar’.

Court Decisions

Shafi Khalit—Common passage in between pre-emptor’s land and disputed land—Pre-emptor could not claim superior right of pre-emption on proof of mere fact that both such lands were situated on a thoroughfare. PLD 2003 Lah. 413

Right of passage – Not its user, but ownership in passage would equip a person with superior right of pre-emption being Shafi Khalit. PLD 2003 Lah. 413

Dismissal of pre-emption suit on the ground that property in question, being immovable urban property was situated within cantonment limits and, thus, not pre-emptible in terms of S. 2, Punjab Pre-emption Act, 1991. Validity. Sale in question, took place on 17.8.1993; suit was instituted’on 16,12.1993; on both such dates urban immovable property or property situated within cantonment limits, was not pre-emptible as Section 2Punjab Pre­emption Act, 1991 as attracted to such property. Judgment of S.C.( P.L.J.1994 SC 221) had declared provision of Section 2Punjab Pre-emption Act, 1991 being repugnant to injunctions of Islam to the extent that the same excluded all urban properties and property situated within cantonment limits, permanently from the application of the Act and made its Judgment effective from 31.12.1993. S.C.had not made effective its Judgment retrospectively which means that right of pre-emption on urban immovable property and property situated within cantonment limit, was available with effect from 31.12.1993 and not on 17.8.1993 when sale took place and on 16.12.1993, when suit was instituted,, plaint was thus, rightly rejected by Courts below. No illegality in impugned Judgment, having been pointed out, no interference was warranted in the same.  P.L.J.2000 Lah. 909.

Suit for pre-emption—Both courts of competent jurisdiction had rightly appreciated evidence on record while decreeing the suit of plaintiff/Pre-emptor—In absence of any misreading/non-reading of evidence or any material irregularity or any jurisdictional error or defect, judgments and decrees could not be interfered with in revisional jurisdiction of High Court. 2004 M L D 341

Deposit of one-third amount of sale price—Limitation for—Delay, condo nation of—Trial court directed plaintiff to deposit Zare-e-soim/one-third amount of sale price within thirty days, but plaintiff deposited said amount one day beyond period of thirty days and for said default his suit was dismissed by trial court and order of Trial court was upheld in appeal—period of thirty days as provided under provisions of S. 24 of Punjab pre-emption Act, 1991, would be counted on filing of suit and plaintiff was duty bound to deposit one-third sale amount as on as he would institute the suit—proviso to S. 24 of Pre-emption Act, 1991 having barred the discretion of court to extend time beyond thirty days, court could not extend same and plaintiff was duty bound to deposit one-third within prescribed period of thirty days—Plaintiff though had deposited one-third in compliance of direction of court, but same having been deposited one day after expiry of thirty days, his suit was rightly dismissed on that ground—Where law required a particular thing to be done in a given manner, it had to be done in that manner— Requirement of deposit of one-third was mandatory in nature and not directory and plaintiff was required to deposit same within thirty days. 2004 C L C 538

            Stages .at which such right was available. Right of pre-emption was available at four different stages viz; at the time of sale of property in question; at the time of institution of suit; at the time of decree of suit; and at the time of execution of decree. Right of pre­emption being not available to plaintiff on two stages t.e./ at the time of sale of property and at the time of institution of suit, rejection of his plaint in suit for .pre-emption was un-exceptional.-P.L.J.2000 Lah. 909.

Claim of pre­emption based on being co-Sharer of land in question. Land shown to be owned by plaintiff in Rev.record in fact, was purchased with intention to use the same for purpose of grave-yard of inhabitants of village. Evidence on record indicated that such land was purchased through Contribution of residents of village. Even some portion of land had been donated by seller. Absence of cross-examination on such aspect would have the effect of admission of such fact by plaintiff. Such property would be deemed to be waqf property vesting in God Almighty and the only reason that name of plaintiff was entered in Rev. record as owner thereof, would nob establish that he was owner/co-Sharer entitling him to file suit for pre-emption. Plaintiff, thus, had failed to prove his claim for. pre-emption on basis of his being co-Sharer in property-in question.-P.L.J.2000 Lah. 1468.

Zaroorat or to avoid zarar. Enactment in Section 6(2) of Act. Whether repugnant to Injunctions of Islam. Contention that although Federal Shariat Court accepted that law of pre-emption is based on Zaroorat and its main purpose is to avoid Zarar, yet it has struck down Sub-Section  (2) There is no Juristic opinion that law of pre-emption is based on Zaroorat. However, Zarar is relevant and a large number of Jurists have held that law of pre-emption has been enacted in Shariah to avoid Zarar. Procedure prescribed for three Talbs is sufficient to establish right and additional condition to prove Zarar, cannot be imposed on plaintiff. Sub-Section  (2) of Section 6 contravenes Injunctions of Islam and Judgment of Federal Shariat Court is well founded.  P.L.J.1994 SC 221 = PLD1994SC1.

Amendment of plaint to add “Zaroorat”. Permission for amendment granted. Contention that failure to plead expressly relevant assertions as to “Zaroorat” or “Zarar” could not be allowed to be remedied by allowing amendment and suit was liable to dismissal. Plea of “Zaroorat” and “Zarar” was considered necessary part of plaint in view of Section 6(2) of Punjab Pre-emption Act, but that section has been held to be repugnant to Injunctions of Islam. Now a pre-emption suit cannot, be dismissed for want of pleading “Zaroorat” or avoidance of “Zarar”.-P.L.J.1994 Lah. 200 = 1994 CLC 788.

Dismissal of suit for pre-emption on the ground of non-proof of talbs by Trial was decreed by Appellate court–Validity–Trial Court while rendering its finding on issue of talbs discussed in detail evidence brought on record–Appellate court, however, did not discuss evidence to see whether talbs-Muwathibat was sufficiently proved or not and without offering any reason or discussion merely stated that talb-e-Muwathibat was proved–Manifestly Judgment of Appellate Court suffers from misreading and non-reading of evidence–Appellate Court had failed to exercise Jurisdiction vested in him–Plaintiff admittedly had knowledge of sale prior to the state when he filed suit for pre-emption–Judgment and decree passed by Appellate Court was set aside while that of Trial Court dismissing plaintiff’s suit was restored.  P.L.J. 2002 Lah.252

7. 7. Priorities in the right of pre-emption. Where there are more than one participators in the special rights attached to the immovable property sold, the person having a special right shall have precedence over a person having a general right.

Illustrations
(a)        A garden is irrigated by a watercourse which opens from a small canal. If this garden is sold, the person having right of irrigation from the watercourse shall have precedence over a person having right of irrigation from the canal. But if such garden is irrigated from the small canal, the person having right of irrigation from the watercourse as well as the person having right of irrigation from the canal shall have the right of pre-emption.

(b)        Where there are more than one pre-emptors and one has right of passage and the other has right of passage of water attached to the immovable property sold, the person having right of passage shall have precedence over the person having right of passage of water.

(c)        A participator in the special rights having his property, on the basis of which he claims to be the pre-emptor nearer to the immovable property sold, shall have precedence over the pre-emptor having such property not so near to the immovable property sold.

Court Decisions

Claim of superior right of pre-emption by the plaintiff—Contention of the defendants that the plaintiff had failed to bring on record the jamabandi pertaining to the period, when the decree was passed, would mean that according to such contention, the plaintiff must have alienated the property, or was divested of his ownership during the pendency of the suit—Validity—Held, in order to prove, if such an eventuality had occurred, no evidence had been led meaning thereby that on the basis of the documents on the record the plaintiff continued to be the owner in the estate at all stages relevant for the Purposes of sustaining a pre-emption action. PLD 2003 Lah. 544

Displaced persons (Land Settlement) Act (XLVII of 1958), S. 16 (amended)—Pre-emption suit – Claim of superior right of pre-emptors being owners in the estate—Contentions of the defendants, inter alia, were that the plaintiff did not have the superior right and that the property in question was originally an evacuee property, which had been transferred in favour of the allottee and thereafter, purchased by the vendee, and the settlement fee having not been paid to the Settlement Department, the property was not pre-emptible—Validity—Land had permanently been settled upon the transferee in view of amended S. 16 of the Displaced persons (Land Settlement) Act, 1958 which he sold in favour of the vendees, therefore a valid sale was made in favour of the vendees which was pre-emptible under the law—Property was validly transferred in favour of the vendees on account of sale and it did not lie in their mouth to plead that the sale was invalid, because of the non-payment of the settlement fee as the sale qua the vendees had been effected through registered deed—Civil Court, in circumstances, had the jurisdiction to decide the pre-emption action in circumstances. PLD 2003 Lah. 544

8. 8. Joint right of pre-emption how exercised. Where a right of pre-emption vests in any class or group or persons, the right may be exercised by all the members of such class or group jointly, and if not exercised by them all jointly, by any two or more of them jointly, and if not exercised by any two or more of them jointly, by them severally.

Court Decisions

Whether suit land is exempt from pre-emption. Notification issued U/S. 3, of Government Tenants (Punjab) Act 1893 was applied to Chak No. 4 where suit land is situated. Subsequent acquisition of proprietary rights did not exclude application of Colonization of Government Lands Act, 1912 and notification under Section 8(2) of Act 1913 unless application of 1912 Act was specially excluded under Section 5 thereof. At time of sale of suit land, Colonization of Government Lands Act was appealable and by virtue of Notification, -its sale was exempt from pre-emption.-P.L.J.1994 Lah. 439 == 1994 MLD 791.

9. 9. Method of distribution of the property where more than one person are equally entitled. Where major than one person are found by the Court to be equally entitled to the right of pre-emption, the property shall be distributed among them in equal shares.

Illustration
A has one-half share in a house, B has one-third and C has one-sixth share in such house. If A sells his one-half share, the other two co-sharers, namely B and C shall have equal right of pre-emption in one-half of the house and this one-half shall be distributed between B and C in equal shares and not according to their respective shares in the house.

10. 10. Withdrawl of claims. Where there are more than one pre-emptors having sued jointly or severally and any of them withdraws his claim before the decision of the Court, the remaining pre-emptors shall be entitled to the whole property:

Provided that the claim of the remaining pre-emptors was originally made for the whole property.

Court Decisions

Partial pre-emption. Each of pre-emptor has specifically mentioned his share in title of plaint and each of them is bound by same without taking any exception thereto on any flimsy ground and excuse. Due to eclipse of Ghulam Haider pre-empfcor from list of pre-emptors, proviso to section 10 of Act, 1991 shall play legal role. Remaining pre-emptors did not claim initially whole of property for possession by pre-emption. Petitioners have rightly been non-suited by both lower courts.  P.L.J.1996 Lah. 1005 = PLD 1996 Lah. 459.

11. 11. Sale of appurtenances of land. Where only trees or a building is sold without land, no right of pre-emption shall exist in such trees or the structures of a building, but where land is sold with trees and building on it, the trees and buildings shall be deemed to be included in the land for purposes of the right of pre-emption.

12. 12. Right to revoke sale. Where the vendor has stipulated in the contract of sale it is subject to revocation by him within a period, not exceeding sixty days, specified in such contract, the right of pre-emption shall not be exercised until such period has expired:

Provided that option of defect in, or inspection of, the property or the stipulation as to the vendee’s right to revoke the contract of sale shall not be a bar to the exercise of the right of pre-emption.

Court Decisions

Right to revoke sale. Contention that there is no particular verse or Hadith that right of revocation of sale cannot extend beyond 3 days as held by Federal Shariat Court. Contention of Asstt. A.G. has force. Since there is no specific prohibition against right of revocation for more than three days and a number of Muslim Jurists have also opined that right of revocation can be extended to one month, Section 12 cannot be struck down on basis of repugnancy.-P.L.J.1994 SC 221 = PLD1994 SC 1.

13. 13. Demand of pre-emption. (1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following orders, namely:-

• Talb-i-Muwathibat;
  (b)        ‘Talb-i-Ishhad’; and

(c)        ‘Talb-i-Khusumat.

Explanation.(1) ‘Talb-i-Muwathibat’ means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of Pre-emption.

Note.   Any words indicative of intention to exercise the right of pre-emption are sufficient.

1. Talb-i-Ishhad’ means demand by establishing evidence.

III.       ‘Talb-i-Khusumat’ means demand by filling a suit.

(2)        When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat.

(3)        Where a pre-emptor has made Talb-i-Muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise the right of pre-emption:

Provided that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses.

(4)        Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2), and Talb-i-Ishhad under sub-section (3) he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption.

Court Decisions

Principles.:–Sending notice of Talb-i-Ishhad under registered cover acknowledgment due as prescribed in S. 13(3) of Punjab Pre-emption Act, 1991—Object and proof of—Ordinary registered mail letter without an A.D., hypothetically, but not essentially, can at maximum be stretched to equate with refusal of vendee to receive registered mail letter—Purpose of prescribed mode of mail is to create a reliable evidence of sending notice, its receipt or deliberate refusal by vendee—Registered mail letter alongwith acknowledgment due, if sent back to pre-emptor, then he in order to prove its transmission would have to tender in evidence refused envelope etc., and relevant record of the post office—Object of law would be taken to have been materially and substantially fulfilled, where through evidence of  witnesses and post office record, pre-emptor had successfully proved receipt of registered mail letter by vendee—PLD 2004 Lah. 125

Procedure—Requirement of Talb-i-Muwathibat is satisfied if the declaration is made by pre-emptor immediately on coming to know about the sale—After making Talb-i-Muwathibat, if notice of Talb-e-Ishhad is given within the time prescribed therein, the requirement of talb-e-Ishhad, is fulfilled. 2004 S C M R 409

            Requirements of S. 13(3), Punjab Pre-emption Act 1991 whether complied with by plaintiff. Statement of plaintiff on oath coupled with written notice sent to appellant within ten days of talb-i-Muwafchibat, substantially complied legal requirement of S. 13(3) Punjab Pre-emption Act 1991.  P.L.J.1999 SC 2361 = 1999SCMR 724. Plaint does not indicate or at least claim, making of Talb-e-Muwathibat by plaintiffs nor date of acquiring knowledge or name of informer has been given. Notice of Talb-e-Ishhad, which was required to be given within 14 days from date of Talb-e-Muwathibat is actually claimed to have been sent after 18 days and in this way same could not be proved. Argument, that Talb-e-Ishhad was otherwise proved and, therefore, violation of statutory rule should not nonSuit petitioners, is without substance, inasmuch as, Talb-e-Ishhad, otherwise could not be proved, as statements made by witnesses have been found to be self contradictory and unworthy of reliance. Evidence led by petitioners, in matter of two talks was self contradictory and Talb-e-Muwathibat and Talb-e-Ishhad could not be proved in accordance with injunctions of Islam and also petitioners though required to make declaration of right and intention to enforce same immediately on acquisition of knowledge of sale, failed to do same and in evidence and pleading, making of Talb-e-Muwathibat by plaintiffs was missing while alleged informer who was claimed to be only witness of Talb-e-Muwathibat, by one of plaintiffs, was not produced.  Petitioners had failed to prove that they had made Talb-e-Muwathibat and Talb-e-Ishhad. Findings recorded by two courts below do not suffer from any misreading of record or legal infirmity.  P.L.J.1998 Lah. 895 = 1998 CLC 1190 = NLR 1998 Civil 445. Suit was decreed in favour of plaintiff. Validity.. Leave to appeal was granted to consider; whether finding relating to plaintiffs superior right of pre-emption on account of contiguity or share of common appendages was based on complete misreading of evidence; whether lands in dispute purchased by defendant comprised of rectangles 19 and 20 whereas lands owned by respondent formed part of rectangle No, 17 and 18 which according to certified copy of Aks S/iq/m-Kishtawar were operated vertically and longitudinally by thoroughfare and water course running across over government land but such factual aspect was completely misrepresented before trial court, materially affecting conclusions impugned through present petitions; and whether there was un-explained delay in performance of requisite talabs in view of language of S. 13(3) Punjab Pre-emption Act 1991 and incorporated by S.C. in Judgments reprinted in 1992 SCMR 1780 and 1992 SCMR 1886.  P.L.J.1999 SC 2361 = 1999 SCMR 724. There was no plea in pleadings that there is lack of post office facility in area. This being position, Talb-i-Ishhad could be made by pre-emptor within period of two weeks after making Talb-i-Muwathibat sending notice in writing attested by two truthful witnesses under registered .cover acknowledgment due to vendee, confirming his (pre-emptor’s) intention to exercise right of pre-emption. Thus there is no provision to deliver copy of notice about Talb-i-Ishhad by hand to vendee. Pre-emptor has to establish making of demand of Talb-i-Ishhad u/S. 13 of Punjab Pre-emption Act, 1991 and not in manner averred by petitioner-defendant-vendee. Impugned Judgments passed by both lower courts need not be interfered with. No legal right of petitioner/vendee stands infringed. Petition dismissed in limine.  P.L.J.1998 Lah. 766 = 1998 CLC 1520.

            Whether court can look into nature of transaction : — Any defence in matter revolving around factual aspects has to be independently proved. Mere narration of same in statement of witness even though not, cross-examined on point would not establish same. In written statement it mentioned that suit for possession through pre­emption instituted by petitioner is benami and it, is not contended therein that suit was being financed by K and M and that also for their own interest and benefit. Case law relied on by both lower courts is not attracted to facts of the matter which is defence of specific factual nature and is to be established by production of evidence, oral or documentary according to discretion and requirement of respondents who have failed thereof.  P.L.J.1998 Lah. 746 = 1998 MLD 2068. Very fact that contesting defendants/plaintiffs were not at all willing to resolve their dispute on special oath, leads to genuine inference that they were perhaps not themselves sure with regard to correct nature of transaction and they were not truthful in their claim that it was transaction of exchange. Even otherwise evidence on record, considered minutely, leads to one. and only irresistable conclusion that transaction was that of sale. Contention of learned counsel for petitioners that it is not at all open to court to look into nature of transaction or to hold that transaction which was ostensibly of exchange was in fact thatOf sale in nature does not carry weight. Court cannot be said to be precluded for looking into nature of transaction. Petition without merit is accordingly dismissed.  P.L.J.1998 Lah. 187 = PLD 1998 Lah. 228.

            Pre-requisite for filing. Pre-requisite for filing suit for possession through pre-emption in compliance of provisions of Section 13(3) Punjab Pre-emption Act 1991, whereby notice of talb-i-Ishhad has to be served upon other party within 15 days from date of knowledge.  P.L.J.1999 Lah. 773.

            Requirements of law. According to learned counsel, witnesses to Talb-i-Muwathbat and Talb-i-Ishhad are unanimous that pre-emptor had come to know of factum of sale on 3.6.1991 and that he had immediately expressed his intention to exercise right of pre-emption. Learned counsel further submitted that if notice of Talb-in-Ishhad was sent through counsel it had certainly taken 2 or even 3 days to comply with requirements of Talb-i-Ishhad. Learned Counsel then referred to interpretation of expression “as soon as possible” in Black’s Dictionary. According to this expression it means that action had to be taken within reasonable time. According to learned Counsel, 2 to 3 days after making Talb-i-Muwathibat was reasonable time within which Talb-i-Ishhad has been made and that too through counsel.. Talib-i-Ishhad made within 2/3 days is sufficient compliance of Section 13(3) of Act and satisfies expression ‘as soon thereafter as possible’ occurring in Section 13(3) of the Act.  P.L.J.1998 SC 1751 = 1998 SCMR 2396.

            Proof. Sale in dispute was made through registered sale-deed which was executed on 12.11.1992 and was attested before Registrar on 14.11.1992. Registration of sale-deed is notice to public-at-large and as such, it would impart knowledge to all intending pre-emptors. Hallow-ness of Pre-emptors plea that he came to know about sale on 14.12.1992, stands exposed through notice served by him on 19.12.1992 showing that sale-deed was executed on 12,11.1992 and was registered on 14.11.1992. If it is so, then it is clear enough to say that Talb-i-Muwathibat made on 14.12.1992 or 15.12.1992 was not in accordance with provisions of law as it was belated by about month, whereas, law requires that it shall be made immediately on hearing about sale of land. Both courts below had rightly held that demands in question were not served in accordance with law. Impugned Judgments do not suffer from any illegality, latent or .patent, so as to call for interference on revisional Jurisdiction of High Court.  P.L.J.1998 Lah. 887 = 1998 MLD 1077. Assertions in plaint indicated that plaintiff had come to know of sale about 11 days before suit was filed. Suit was filed on 21.10.1990, while as per assertion made in plaint, plaintiff had come to know of sale on 10.10.1990. Specified para of plaint stated that plaintiff had proclaimed his intention to pre-empt sale in question, in Majlis on 14.10.1990. Provision of S. 13 Punjab Pre-emption Act, 1990 requires that first talb i.e., talb-i-muwathibat has to be made immediately on gaining knowledge of sale. As per plaintiffs own assertion there was delay of 4 days in making talb-i-­muwathibat which is fatal to case of petitioner. Plaintiff, while appearing as his own witness had stated that he was informed by specified persons that his brother had sold land in question and that he went to defendants and asked him to transfer, that land to him. Plaintiff on gaining knowledge of sale had not immediately at that time declared that he intended to pre-empt sale in question, but instead he went to defendant and demanded return of property. Failure to assert his right of pre-emption at the time he gained knowledge from witnesses, clearly resulted in extinguishment of right of pre-emption vesting in petitioner. No interference was, thus, warranted in impugned order of dismissal of suit.  P.L.J. 2000 Lah. 1101 = 2000 CLC 1067. Concurrent findings of two Courts below. Interference by High Court under S. 115, C.P.C. Conditions. None of following legal or other infirmities in concurrent findings of two Courts below in favour of plaintiff in a pre-emption suit were noted or pointed out in impugned Judgment: (i) The lower Courts exercised Jurisdiction not vested in them; (ii) The lower Courts failed to exercise any Jurisdiction vested in them; (iii) They acted in exercise of their Jurisdiction illegally or with material irregularity; (iv) Misreading or non-reading of material evidence on record which had a direct bearing on the issues involved; (v) Findings were perverse; (vi) Findings could not be reached on the evidence on record; In circumstances, High Court erred in interfering in revisional Jurisdiction with concurrent Judgments of two Courts below.  P.L.J. 2000 SC 611 = 2000 SCMR 314.

            Essentials for Talabs. Plaintiff could not be non-suited merely on ground that other details of time and place to Talabs, and names of witnesses etc. had not been specifically mentioned in plaint. If defendants had any difficulty in filing. their written statement, they could apply to Trial Court for further and better particulars. Plaintiff could not be non-suited.  P.L.J.2000 SC 595 = 2000 SCMR 329.

            Pre-emption. Talabs. On question of fact of making two Talabs concurrent findings of two Courts below passed in favour of plaintiff on evidence adduced before trial Court were not liable to interference in revisional Jurisdiction by High Court. Concurrent findings of two Courts below were not set aside on account of any patent illegality or peversity. No misreading or non-reading of evidence was pointed out except a passing reference to evidence. High Court set aside concurrent findings on ground that date, time and place, about sale transaction, were not specifically pleaded in plaint. On such ground plaintiff could not be non-suited. On merits also no illegality or material irregularity in concurrent Judgments of two Courts below had been pointed out by High Court.  P.L.J. 2000 SC 611 = 2000 SCMR 314.

            Tdlab-e-Muwathibat :– Tdlab-e-Muwathibat mean immediate demand by pre-emptor in sitting of meeting in which he has come to know of sale, declaring his intention to exercise right of pre-emption. According to statement of plaintiff himself there was delay at least of one day in making Talab-e-Muwathibat, which should have to be made before dispersal of Majlis. Judgment and decree of trial Court unexceptionable.  P.L.J. 2000 Lah. 312.

            Talb-i-Muwathibat. Proof. Plaintiff had failed to establish talb-i-muwathibat in un-equivocal terms as legally required. Contradictions being apparent in evidence of witnesses produced by plaintiff, findings of both Courts below to the effect that talb-i-muwathihat was established was reversed and set aside. Plaintiff’s suit for pre-emption having not been established was dismissed in circumstances.-

            Principle of “Talab-i-Muwathbat”. Challenge to in Federal Shariat Court on point that it is opposed to Injunctions of Islam. Principle of supporting sight of purchaser by limiting right of pre-emptor through ‘Talab-i-Muwathbat’ has been an agreed principle among Jurists. Right of pre­emption should be demanded immediately. If pre-emptor does not express his intention to exercise his right within setting in which he comes to know about deal, he loose his right for good. Maximum period allowed by ‘Honbali’ Jurists even in cases of real and genuine excuses does not exceed a few moments. Ibn-i-Qudama, says that if a person is informed about sale of property and he simply confirms news but does not expressly demands his right to pre­emption, his sight immediately abates. If right of pre-emptor is left open ended, it will be violative of rights, of purchaser. Principle of taldb-i-muwathbat is not opposed to Injunctions of Islam.  P.L.J.1999 SC 1548 = 1999 SCMR 2713.

            Knowledge :– Notwithstanding failure of appellant to name those two persons who had been sent to house of respondent, appellant in his statement in trial Court has not specifically stated as to when he got knowledge of sale transaction in dispute and where had he made such a declaration. Element of making of a demand in form of declaration within contemplation of Section 13 (2) of Act in ‘Majlis’ wherein he got knowledge of sale in dispute, is lacking.  P.L.J.1996 SC 245 = 1996 SCMR 294.

            Three Talbs. Whether repugnant to Injunctions of Islam. Question of three Talbs has thoroughly been discussed in .Said Kamal’s case wherein it was held on authority of a number of traditions that right of pre-emption is subject to these three Talbs. Jurisdiction cannot be exercised where a particular law or a provision of law is repugnant to any of different views taken by different Muslim Jurists. It is true that notice is not a necessary ingredient of Talb-i-Ishhad, but this is only a procedural matter to facilitate proper process of filing a suit which does not affect basic right of pre­emption. Procedural provisions may vary from time to time according to expediency and in so far as they do not violate any Injunctions of Islam, they cannot be held repugnant to Holy Quran and Sunnah.  P.L.J.1994 SC 221 » PLD1994SC1.

            Suit dismissed on non-fulfillment of. Talabs. Suit for possession through pre-emption on ground of being co-Sharers in khata and water-course, and alleged making of talab-i-ishhad. Civil Judge dismissed suit on ground for non-fulfillment of talabs U/S- 13(3) of Punjab Pre-emption Act, 1991. Appeal to ADJ also met same fate. Revision U/S. 115 of CPC 1908. Dismissed for no mention of Talab-i-Muwathibat in pleadings.-P.L.J.2000 Lah. 1458.Trial Court while rendering its finding on issue of talbs discussed in detail evidence brought on record–Appellate court, however, did not discuss evidence to see whether talbs-Muwathibat was sufficiently proved or not and without offering any reason or discussion merely stated that talb-e-Muwathibat was proved–Manifestly Judgment of Appellate Court suffers from misreading and non-reading of evidence–Appellate Court had failed to exercise Jurisdiction vested in him–Plaintiff admittedly had knowledge of sale prior to the state when he filed suit for pre-emption–Judgment and decree passed by Appellate Court was set aside while that of Trial Court dismissing plaintiff’s suit was restored.  P.L.J. 2002 Lah.252

Additional evidence :– Punjab Pre-emption Act. 1991 S. 13. Suit for pre­emption. Application for additional evidence. Allowed to prove notice of Talb-e-Ishhad but not allowed to produce witnesses. Pre-emptor/petitioner was allowed to prove notice of Talb-e-lshhad and said notice could only be proved by production of attesting witnesses thereof. Order of allowing production of additional evidence could not be frustrated or set at naught by declining request of pre-emptor to produce attesting witnesses in evidence, which tentamounts to giving by one hand and taking by the other. Under S. 13 of Punjab Pre-emption Act. 1991 notice of Talb-e-lshhad is required to be attested by two truthful witnesses. Word ‘proof means and includes proof by production of witnesses so that other party should have opportunity to cross examine such witnesses. Attestation of notice of ‘Talb-e-lshhad’ and proof thereof is not a mere formality but a sine qua non for exercise of very right of pre-emption. Trial Court ought to have exercised its Jurisdiction by allowing petitioner to produce attesting witnesses of notice to do complete Justice.  P.L.J.1998 Lah. 307 = 1998 CLC 393 = NLR 1998 Civil 205.

Details of the date, time and place :– Leave to appeal was granted to consider whether it is mandatory to give in the plaint of the suit for possession by pre-emption, the particulars and details of the date, time and place of making Talb-i-Muwathibat and also disclose names of witnesses in whose presence such talb was made.- Plaintiff could not have been non Suited on the ground that time and place of talb-i-muwathibat and names of witnesses had not been. specifically disclosed in plaint. Plaintiff had in fact, made requisite talbs in terms of S, 13(3) of Punjab Pre-emption Act, 1990. Order of dismissal of plaint for not disclosing date and time of requisite talbs was set aside and suit was decreed on payment of specified amount to be deposited in Court.-P.L.J.2001 SC 72 = 2001 SCMR 539. Pre-emption, Talabs. It is mandatory on part of pre-emptor to mention date of Talb-i-Muwathibat, place of acquiring knowledge of transaction as well as names of witnesses in whose presence said Talb was made as referred by Section 13 of Punjab Pre-emption Act, 1991. Admittedly, provisions of Section 13 of Punjab Pre-emption Act, 1991 have not been complied with by plaintiff/respondent as is evident from contents of plaint. Thus trial Court was Justified in rejecting plaint under Order 7 Rule 11 CPC.. Appellant Court has not exercised Jurisdiction vested in it in accordance with, law while setting aside order of lower Court. Accordingly revision petition is accepted, order of appellate Court dated 2.7.1995 is reversed and that of lower Court is upheld.  P.L.J.1999 Lah. 681 = 1999 CLC 120. Plaintiff in her plaint did not disclose time and place of talb-i-Muwathibat nor did she disclose her source of knowledge of sale in question. Perusal of statements of witnesses and assertion in plaint indica-ted that there were contradictions as to date of alleged knowledge of sale and of alleged making of talb-i-muwathibat. Evidence on record would give impression that plaintiff from day one was aware of sale but she made up story of acquiring of sale-deed on specified date and making of alleged talb-i-muwathibat on that date. Material on record did not indicate that plaintiff made talb-i-muwathibat at the spur of moment and that requirement of Jumping demand was satisfactorily proved. Court below thus, rightly concluded that plaintiff had failed to prove talb-i-muwathihat. Trial Court, however, had not made correct appreciation of evidence regarding question of talb-i-Ishhad in as much as neither any of witnesses nor plaintiff herself claimed that she had made talb-i-Ishhad after making talb-i-muwathibat in presence of witnesses. Plaintiff however, having failed to prove talb-i-muwathibat would be deemed to have extinguished right of pre-emption, therefore, her suit for pre-emption was rightly dismissed by Court below.  P.L.J.2000 Lah. 854 = 2000 MLD 1391.

Limitation—Knowledge of attestation of mutation—onus to prove—Scope—Where mutation in question had found its way in the Revenue Record, the burden of proof that the persons affected by it were unaware either of the attestation of mutation or of subsequent entries in the Revenue Record would heavily lie on the party asserting such facts. 2004 C L C 240

Notice of talb-e-Ishad:– Whether notice of talb-e-Ishad issued u/S. 13(3) of Punjab Pre-emption Act, 1991 was attested by two truthful witness? If not its legal effect. Service of registered notice by appellant containing names of two truthful witnesses before whom talb-i-Ishhad was allegedly made amounted to substantial compliance of provisions of Section 13(3) of Act and therefore, he could not be non-suited on the ground that notice served on respondent containing Talb-i-Ishad was not attested by two truthful witnesses whose names were disclosed in notice. Case remanded to trial Court for decision in accordance with law.  P.L.J.1999 SC 818 = 1999 SCMR 717. Defendant in his written statement had accepted and acknowledged receipt of notice. Such document having been produced by defendants side, itself, would indicate that talb-i-ishhad had been made in accordance with law.  P.L.J. 2000 Lah. 1468.

Such right cannot be exercised unless and until the pre-emptor has performed the ceremony of Talb-e-Muwathibat immediately on hearing the sale—Even a short delay cannot be excused. 2004 C L C 240

Notice of Talb-i-Ishhad not proved to have been sent—Effect—provision of S. 13(3) of Punjab pre-emption Act 1991 being mandatory in nature, performance of talb-i-Ishhad was considered to be one of the most important conditions for enforcing right of pre-emption and if notice had not been sent as per requirement of law conclusion would be that talb-i-Ishhad had not been made, as a result whereof right of pre-emption would be deemed to have extinguished. PLJ 2004 Lah. 319

Notice of Talb-i-Ishhad:–Notice of Talb-i-Ishhad sent through ordinary registered post without acknowledgment due—Vendee denied to have received such notice—Pre-emptor produced in evidence witnesses, post office record and photo copy of such notice—Trial Court dismissed suit, but Appellate Court decreed the same—Validity—Requirement of sending notice of Talb-i-Ishhad in terms of S. 13(3) of Punjab Pre-emption Act, 1991 had technically not been complied with—Non-compliance with such technicality had been met by pre-emptor by producing witnesses and record of post office—Pre-emptor had successfully proved receipt of registered envelope by vendee—Object of law had, thus, materially and substantially been fulfilled—Vested right of pre-emptor, in such circumstances could not be abridged or allowed to be defeated on mere absence of acknowledgement due with registered mail letter—Appellate court after concluding that registered mail containing notice of Talb-i-Ishhad had been duly delivered mail containing notice of Talb-i-Ishhad had been duly delivered to vendee, was justified in presuming that original notice was in the envelope delivered to him—Vendee had not pleaded that registered mail envelope received by him did not contain any original notice of Talb-i-ishhed or was empty—Contention of non-production of original notice or its secondary evidence by pre-emptor could not reinforce case of vendee—Impugned judgment on such question met the requirements of justice and spirit of law—High court dismissed revision petition. PLD 2004 Lah. 125

Pre­requisites for Talabs. Record showed that copies of notices were marked but not exhibited. No objection had been raised by production of copies of such notices by defendants. Trial Court relied upon said notices in its Judgment and defendants in memo of their appeal before Appellate Court neither took the ground about admissibility of copies of such notices or plea that they had not received such notices. Appellate Court, however, allowed additional evidence regarding acknowledgment receipts showing service of notices upon defendants. No plea with regard to non-receipt of notices by defendants was taken before Appellate Court. Plaint also showed that Talabs had been duly made. High Court, erred in holding that plaintiff had been wrongly allowed to produce evidence.  P.L.J.2000 SC 595 = 2000 SCMR 329. Concurrent findings by Trial Court and Appellate Court regarding Talabs having been made and notices under Section 13(3) being served upon. No case of misrepresentation was made out. No material irregularity in Judgments of Courts below. Such findings of facts were not liable to interference in revisional Jurisdiction by High Court.  P.L.J.2000 SC 595 = 2000 SCMR 329.

14. 14. Demand by guardian or grant. Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf.

15. 15. Waiver of the right of pre-emption. The right of pre-emption shall be deemed to have been waived if the pre-emptor has acquiesced in the sale or has done any other act of omission or commission, which amounts to waiver of the right of pre-emption.

Court Decisions

Waiver of the right of pre-emption : — Pre-emptor claimed to be a collateral of vendors, whereas vendees pleaded to be tenant in suit land—Trial Court decreed the suit, while appellate Court partly accepted appeals of vendees founding that pre-emptor had no right of pre-emption to the extent of one vendor being his collateral and excluded her share—Contention of one of the vendee was that his share was specified in sale-deed and he having been proved to be a non-occupancy tenant in suit land, was entitled to retain land to the extent of his share—Validity—Plea had not been taken that sale was divisible and that vendees had contributed the price in accordance with their respective shares—Vendees could not take such a plea in their written statement for having pleaded that all of them were tenants in suit sale price in lump sum from vendees at the time fo registration—Vendee/appellant while appearing as witness stated that sale took place for Rs. 35, 000 and his share was 3/4^th and he paid amount separately in such proportion—Such fact had not been stated in sale-deed—other witness after making statement similar to that of appellant/vendee had admitted that such fact was neither noted in registered sale-deed not his presence was recorded therein—Nothing turned in favour of vendees on the basis of sale-deed—Another witness could not explain as to how the amount was contributed and when and how same was separately paid—courts below had rightly found that sale was not divisible—Appellant/vendee could not be allowed to retain land purchased by him on the ground that he being a non-occupancy tenant therein had joined strangers with him- High court dismissed the appeal in circumstances. PLD 2003 Lah. 245

            Plea of waiver-Proof :–Defendant had not produced evidence in order to substantiate plea of waiver – Defendant neither in his own statement nor in his evidence brought on record, a single word that suit for pre-emption was instituted by plaintiff for the benefit ofvendor (father of pre-emptor) – Material on record showed that plaintiff and vendor lived separately-, that plaintiff was major and was looking after his interest independently – First Appellate Court was thus, correct in holding that circumstance of securing certified copies from Revenue Authorities by vendor and placing the same on record by plaintiff would not be deemed to establish that suit had been filed for the benefit of the vendor – Finding of First Appellate Court was maintained in circumstances. P L D 1993 Lah. 168

Ex parte decree passed in favour of a pre-emptor before target date (31.7.1986) as fixed in  P.L.J.1986 SC 576, was protected notwithstanding fact that same was an ex parte decree which was set aside later. Pre-emptor was not debarred to have case adjudicated in accordance with law applicable before date fixed by S.C.in above referred case.  P.L.J. 2000 SC 94.

            Whether land was no longer agricultural and not amenable to pre­emption. It is difficult to accept arguments on behalf of appellant that the moment vicinity assumes urban colour agricultural land becomes, urban immovable property, became it is not only against plain wording of definition of .land, but also against spirit of law. It ignores basic fact that agricultural land could be very well situated in town. Agricultural land so long as it is occupied for agricultural or allied purposes, retained its status as agricultural land for purpose of Punjab Pre-emption Act irrespect of its location, therefore its inclusion in municipal limits if of no significance. It is matter of common knowledge that land alongwith Highways is acquired for industry, residential and commercial buildings, but adjoining lands in its rare remain under plough. Therefore, construction of some factories, houses, shops -etc, would not automatically convert agricultural land into urban immovable property. Colour of locality would be relevant to determine nature of land and not otherwise.  P.L.J.1996 Lah. 584 = 1996 CLC 1410.

16. 16. Death of pre-emptor. Where a pre-emptor dies after making any of the demands under section 13, the right of pre-emption shall stand transferred to his legal heirs.

17. 17. Abatement of right of pre-emption. (1) Where a pre-emptor, before the decree of a Court alienates the property on the basis of which he claims the right of pre-emption, such right shall abate.

(2)        An alienee of the property under sub-section (1) shall not be entitled to the right of preemption.

18. 18. Exercise of right of pre-emption by a Muslim and a non-Muslim against each other. A Muslim and a non-Muslim may exercise the right of pre-emption against each other.

19. 19. Right of pre-emption non-transferable and indivisible. (1) Save as provided in section 16, the right of pre-emption shall be non-transferable and indivisible.

(2)        The claim for pre-emption shall be made on the whole property pre-emptible.

20. 20. Where the pre-emptor and vendee equally entitled. Where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by them equally.

21. 21. Improvements made by the vendee. Where a vendee has made any improvements in the immovable property before Talb-i-Ishhad is made by the pre-emptor under sub-section (3) of section 13, the vendee shall be entitled to the cost of such improvements.

Court Decisions

Suit barred by limitation on account of supply of deficit court-fee-Plaintiff not required to obtain statement of net profits before filing suit for pre-emption -Failure of plaintiff to obtain statement of net profits will operate against him when considering question of entertaining court-fee, if same was supplied after institution of suit on, (or even without) objection from defendant or Court-Right of pre-emption established-Court cannot refuse such right in exercise of discretion-Piaintiff cannot be deprived of his right for mere lapse of time unless there had been abandonment, acquiescence or waiver or at least, an alteration in position of defendant in that other party has been put in a situation in which it would not be reasonable to place him, if remedy were afterwards to be asserted-Mere fact that plaintiff waited till last day of limitation would not disentitle him to any relief, discretionary or otherwise simply because plaintiff availed of full period of limitation. P L D 1984 S.C.157 Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 S C 821; Ghulam Nabi and others v. Seth Muhammad Yaqub and others P L D 1983 S C 344 and Fateh Muhammad v. Abdul Ghani and another P L D 1981 S C 371 ref.

Relevant net profits of land wrongly assessed or not assessed at all, or if assessed statement not made available to plaintiff within period of limitation or even if plaintiff obtained statement same appeared to be tainted with overwriting or forgery and plaintiff not taking any risk and not filing-Held, law of limitation or for that matter pre-emption, did not in any way provide that if and when plaintiff files a suit without statement of net profits, same shall be deemed that plaintiff acted illegally or dishonestly. P L D 1984 S.C.157

Plaintiff making application for supply of relevant statement of net profits on day he filed suit with understanding therein that as and where proper court-fees is determined plaintiff would pay same ; together with his application on receipt of said statement, for submission of proper court-fees worked out on basis thereof-Challan for purchase of court-fee stamps submitted with such application was for proper – court-fees and accordingly amount was deposited-Held, it was an amply fit case for allowing request of plaintiff made (amongst other provisions) under S. 1.49, C. P. C.-Failure to exercise discretion in favour of plaintiff in such case was on account of misunderstanding of legal question of limitation and liable to be corrected by High Court-High Court having not corrected question of limitation, S.C.allowed appeal, set aside Judgment and decree and allowed application of plaintiff seeking permission to pay court-fees and simultaneously producing challans of deposit of court fees with necessary consequences that suit as instituted would in law be deemed to have been filed with proper fee-Case and record remitted to trial Court for determination on merits. P L D 1984 S.C.157

22. 22. Improvement made in the status of the vendee-defendant after the institution of the suit. Any improvement made in the statutes of a vendee-defendant after the institution of a suit for pre-emption shall not affect right of pre-emptor-plaintiff.

Court Decisions

Improvement in status of vendee defendant. No effect on right of pre-emption. Whether repugnant to Injunctions of Islam. Contention that no verse of Holy Quran or any Hadith has been cited to show that Section 22 i & repugnant to Injunctions of Islam. Contention is correct. Federal Shariat Court has placed reliance on Section 21-A of Punjab Pre-emption Act, 1913. Legislature has intentionally omitted phrase “otherwise than through inheritance” and Shariat Court has found this omission as against Injunctions of Islam on ground that improvement taking place on account of a natural factor, such as inheritance, should have not been disregarded. Muslim Jurists are of opinion that any improvement is status of vendee after institution of suit, does not defeat right of pre-emptor, whether it be by an intentional act of vendee or takes place according to some natural event like succession. Section 22 is not repugnant to Injunctions of Islam.  P.L.J.1994 SC 221 = PLD1994SC 1.

23. 23. No right of pre-emption in respect of certain properties. (1) No right of pre-emption shall exist in respect of sale of-

(a)        waqf property or property used for charitable, religious or public purpose; and

(b)        property owned by the Federal or a Provincial Government or a local authority.

(2)        The property acquired by the Federal or a Provincial Government or a local authority in pursuance of any law shall not be pre-emptible.

24. 24. Plaintiff to deposit sale price of the property. (1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix:

Provided that such period shall not extend beyond thirty days of the filing the suit:

Provided further that if no sale price is mentioned in the sale-deed or in mutation, or the price so mentioned appears to be inflated, the Court shall inquire deposit of one-third of the probable value of the property.

(2)        Where the plaintiff falls to make a deposit under sub-section (1) within period fixed by the Court or withdraws the sum so deposited by him, his suit all be dismissed.

(3)        Every sum deposited under sub-section (1) shall be available for the discharge of costs.

(4)        The probable value fixed under sub-section (1) shall not affect the final determination of the price payable by the pre-emptors.

Court Decisions

S. 24(1)(2) Reading of Section 24(1) of Act clearly demonstrates that trial Court itself after filing of suit has to pass an order for deposit of one-third of sale price of property in cash within such period may be fixed by it. However, an embargo/rider has been placed upon its power that said period shall not be more than 30 days of filing of suit. This provision read with Sub-Section  (2) of Section 24 of Act is mandatory in nature as non-compliance of order of deposit by pre-emptor is visited with dismissal of suit.  P.L.J.2001 SC 1215 = 2001 SCMR 1001.

Extension of time—Trial court granted 30 days’ time for the deposit of Zar-e-Soem at the time of filing of suit—Pre-emptor failed to deposit the same within the due time and Trial court on the application of the pre-emptor extended the time—Appellate court, in exercise of revisional jurisdiction set aside the order passed by the Trial court—Validity— time for deposit of one-third of pre-emption money could not be extended by the court—Restriction was imposed on such power of the court b the legislature—Trial court had wrongly extended time for deposit of one-third pre-emption money and exceeded its jurisdiction—Appellate court had rightly interfered with the order passed by the Trial court which called for no interference. 2004 M L D 417

Deposit of sale price. Whether repugnant to Injunctions of Islam. Legislature, while forming this section, has perhaps taken into consideration long period of litigation which is normally spent before final decision of a pre­emption suit. Non-depositing of sale price may encourage frivolous suits. Condition of depositing , a certain part of sale price in court at time. of institution of suit, is not repugnant to Injunctions of Islam.  P.L.J.1994 SC 221 = PLD1994SC 1.

            Deposit sale price :– Legislature has cast a duty upon trial Court to pass an order for deposit of one-third of sale price of property within 30 days from institution of suit.  P.L.J.2001 SC 1215 = 2001 SCMR 1001.

            S. 24 Mandatory duty cast upon trial Court was not performed in consonance with provisions of Act. Courts are here to administer Justice in accordance with provisions of law. -Duty cast upon trial Court cannot be avoided by saying that either of party had not brought attention of Court to this mandatory provision of Section 24 of Act. It was wrong to say in this case on part of First Appellate Court that lapse on part of respondents/plaintiffs’ in not bringing to attention of Court requirement of passing an order for deposit of one-third of sale price had contributed to lapse on part of trial Court. Application of provisions of law is duty of Courts and same cannot be avoided on these grounds.-

Trial Court after filing of suit has to regulate its provision qua deposit of one-third of sale price in accordance with Section 24 of Act. This Section in clear terms has made it responsibility/duty of trial Court to pass an order of deposit. In instant case, trial Court totally failed to comply with mandatory provisions contained in Section 24 of Act. Its order dated 13.1.1992 calling upon respondents/plaintiffs to deposit one-third of sale price by 15.1.1992 was harsh as there was hardly a day for its compliance keeping in view amount to be deposited. This sort of approach by trial Court in inflicting penalty of dismissal of suits upon innocent litigant can never be appreciated. Function of Court is not to simply dispose of matter but is required to do Justice in accordance with provisions of law. S.C.feel sorry in noting that non-action on part of trial Court in this case has caused not only financial loss to parties but has also prolonged their agony spreading over a period of one decade in this uncalled for litigation consuming much of time of Superior Courts.  P.L.J.2001 SC 1215 = 2001 SCMR 1001.

25. 25. Deposit or refund of excess price. (1) Where a Court passes a decree in favour of a pre-emptor on payment of a price which is in excess of the amount already deposited by the pre-emptor, the Court shall require the pre-emptor deposit the remaining amount within thirty days of the passing of the decree.

(2)        Where a decree is passed for a lesser amount than the amount already deposited by the pre-emptor, the Court shall refund the excess amount to such pre-emptor.

26. 26. Sum deposited by pre-emptor not to be attached. No sum deposited in or paid into Court by a pre-emptor under the provisions of this Act shall, while it is in custody of the Court, be liable to attachment by any Civil, Criminal, Revenue any other Court or a Revenue Officer or a local authority.

27. 27. Determination of price. (1) Where the parties do not agree to the price at which the pre-emptor shall exercise his right of pre-emption, the Court shall determine whether the price at which the sale purports to have taken place was fixed in good faith or paid, and if it finds that the price was not so fixed or paid, it shall fix the market value of the property as the price to be paid by the pre-emptor.

(2)        If the Court finds that the price was fixed in good faith or paid, it shall fix such price to be paid by the pre-emptor.

Court Decisions

Relevant net profits of land wrongly assessed or not assessed at all, or if assessed statement not made available to plaintiff within period of limitation or even if plaintiff obtained statement same appeared to be tainted with overwriting or forgery and plaintiff not taking any risk and not filing-Held, law of limitation or for that matter pre-emption, did not in any way provide that if and when plaintiff files a suit without statement of net profits, same shall be deemed that plaintiff acted illegally or dishonestly. P L D 1984 S.C.157

28. 28. Market value how to be determined. For the purpose of determining the market value of a property, the Court may consider the following, among other matters, as evidence of such value-

(a)        the price or value actually received or to be received by the vendor from the vendee;

(b)        the estimated amount of the average annual net profits of the property;

(c)        the value of similar property in the neighbourhood; and

(d)       the value of similar property as shown by previous sales made in the near.

29. 29. Government may exclude areas from pre-emption. The Government may, in the public interest, by a notification in the official Gazette, declare that in any local area or with respect to any sale or class of sale, no right of pre-emption shall exist or only such limited right as it may specify shall exist.

30. 30. The period of limitation for a suit to enforce a right of pre-emption under this Act shall be four months from the date-

(a)        of the registrar of the sale-deed;

(b)        of the attestation of the mutation, if the sale is made otherwise than through a registered sale-deed;

(c)        on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale-deed or a mutation; or

(d)       of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c).

Court Decisions

limitation :– Provision of S. 30, Punjab Pre-emption Act provides limitation to run from date of attestation of mutation or from the date of taking by vendee of physical possession under the sale of any part of property sold, whichever date is earlier-In case of oral sale wherein land was incapable of physical possession, though such sale was confirmed by a civil Court, decree would not fall under S. 30, Punjab Pre-emption Act Suit for pre-emption against an oral sale of such land as was incapable of physical possession though confirmed by civil Court decree, would not fall under S. 30 of Act and would be governed by Art. 120 of Limitation Act and such suit could be filed within six years from the date “the right to sue accrued” to pre-emptor. P L D 1987 Lah. 127 Right of pre-emption arises only in case of sale of immovable property vide S. 5 of Punjab Pre-emption Act, 1991, as same can take place either by registration of sale-deed or otherwise as provided under S. 30 of Punjab Pre-emption Act, 1991, when title of said property as required by law is passed on to vendee i.e. where deed of conveyance is registered or otherwise. Such right of pre-emption to pre-emptor does not arise when public notice is affixed as registration of a document is not a thing of which either executant, i.e. vendor, or vendee has to do anything in that direction as such act is to be performed after execution of a document by parties by officer appointed by law for that purpose. Per Hamid Ali Mirza, J.-P.L.J.2001 SC 1232 = PLD 2001 SC 499.

Limitation period for filing of suit against a sale reflected through a decree of Court is not governed by provisions of S. 30 and Art. 10 of Limitation Act. In such cases, residuary Art. 120 shall apply and period of limitation would be six years with effect from date of accrual of cause of action.- P.L.J. 2000 SC 324,Pre-emption suit filed within one year from date of attestation of mutation would be within time when there is no evidence on record that vendee had taken possession of suit land under sale prior to Sanction of mutation. Conclusion reached by trial Court that pre-emption suit was within time, which has been upheld by High Court, was based on cogent reasons and therefore was unassailable before S.C. on the point of Limitation.- P.L.J.2000 SC 324. Contention of pre-emptor was that vendee had .kept factum of sale-deed secret for which he had no notice and as nothing was mentioned in written statement to indicate whether any notice had been given by Registering Officer after registering deed, therefore, limitation would start running from date when pre-emptor came to know regarding registration of sale-deed and without recording evidence as regards notice which was to be given to public under S. 31 of Punjab Pre-emption Act, 1991, by Registering Officer, plaint could not be rejected under 0. VII, R. 11, C.P.C.. Leave granted to consider above said contention.-P.L.J.2001 SC 1232 = PLD 2001 SC 499.

Application under O.VII, R.11(d), C.P.C., seeking rejection of plaint for being time-barred—Withdrawal of such application before its decision on merits—Filing of similar application for second time in contravention of provisions of O.XXIII, R.1(3), C.P.C.—Section 30 of Punjab Pre-emption Act, 1991 was mandatory in nature and its S. 31 did not have effect of extending period of limitation—Question of limitation touching S. 31 of Punjab Pre-emption Act, 1991, would not remain a mixed question of law and fact, rather same being a pure question of law, could be decided without recording of evidence—Duty of court to advert to point of limitation even though no objection, was raised by either side and no finding was given on earlier application—court was under obligation to see, whether plaint was filed within the limitation provided. 2004 M L D 270 sale through registered sale-deed—starting point of limitation would be from its registration. 2004 M L D 270 Where mutation in question had found its way in the Revenue Record, the burden of proof that the persons affected by it were unaware either of the attestation of mutation or of subsequent entries in the Revenue Record would heavily lie on the party asserting such facts. 2004 C L C 240 Limitation for filing of suit to enforce right of pre-emption is contained in Art. 10 of Limitation Act- Cases which do not fall under Art. 10, Limitation Act, 1908, held, would fall under Art. 120 of the Act which is a residuary provision-Provisions of S. 30 of Punjab Pre-emption Act, 1913, was enacted as a provision supplementing those of Art. 10 of Limitation Act, 1908. P L D 1987 Lah. 127

            Extension of time. Provisions of S. 30 of Punjab Pre-emption Act, 1991, are mandatory in nature. Period of four months from date of registration fixed by S. 30 of Punjab Pre-emption Act, 1991, cannot be extended because ofS, 31 of Act as official act is presumed’to have been duly and regularly performed. Time of four months will run from date of knowledge of pre-emptor only if sale is not under clauses , , or (d) of S. 30 of Act. Time cannot be made to run from date of knowledge of giving of public notice as required by S. 31 of Act in case sale is through registration of deed. Per Hamid Ali Mirza, J.  P.L.J.2001 SC 1232 = PLD 2001SC 499- Sections 30 & 31 being mandatory in nature have to be read together in conjunction of each other. Per Iftikhar Muhammad Chaudhry, J.-P.L.J.2001 SC 1232 = PLD 2001 SC 499.

            Limitation on basis of possession-Provisions of Art. 10 of Limitation Act, is the primary provision to apply in pre-emption suit-In cases where Art. 10 Limitation Act, 1908 was not applicable, limitation for a pre-emption suit would be governed by Art. 120 of Limitation Act, 1908-Provision of S. 30, Punjab Pre-emption Act is in the nature of an exception to Art. 120 of Limitation Act, 1908-Application of Art. 120, Limitation Act, 1908 would therefore stand curtailed by S. 30 of Punjab Pre-emption Act, 1913-For sustaining objection about limitation on basis of possession, essential requisites would be one of physical possession and the other of such possession being `under the sale’. P L D 1987 Lah. 127 Physical possession-Fractional share of Joint property whether capable of physical possession-Fractional share of Joint property, held, was incapable of physical possession. P L D 1987 Lah. 127 Wali Muhammad v. Dost Muhammad and another 1986 C L C 1220 rel.

            Rejection of plaint. Contention by pre-empfcor was that there was no notice of sale, as required under S, 31 of Punjab Pre­emption Act, 1991, therefore, plaint could not be rejected without recording of evidence. Validity. In plaint plea for not filing suit within four months from registration of sale-deed was not non-compliance of S. 31(2) of Punjab Pre­emption Act, 1991, by Registering Officer. While examining application moved by defendant under O.VII, R. 6, C.P.C., except contents of plaint, reference to no other document had to be made. Trial Court had rightly rejected plea of pre-emptor raised for first time in reply of application. Pre-emptor, had knowledge about factum of sale of subject-matter of suit but he did not approach Court for relief within time, therefore, no interference in Judgment was called for. Appeal dismissed. Per Iftikhar Muhammad Chaudhry.-P.L.J.2001 SC 1232 = PLD 2001 SC 499. Whether suit was time barred. Question of limitation was not debated in Trial Court, first Appellate Court and second Appellate Court, and for that reason, neither an issue exists nor a finding has been recorded by any of Courts. It is not disputed that parties had expressed and intended that sale would be complete only on registration of sale deed and not earlier. Such being intention and content of document, sale cannot be said to be complete with execution of agreement to sell nor possession obtained under agreement to sell was possession obtained under sale so as to afford a cause of action to pre-emptor to bring suit.  P.L.J.1994 SC 126 = PLD 1994 SC 120 = 1994 PSC 5.

Suit barred by limitation on account of supply of deficit court-fee-Plaintiff not required to obtain statement of net profits before filing suit for pre-emption -Failure of plaintiff to obtain statement of net profits will operate against him when considering question of entertaining court-fee, if same was supplied after institution of suit on, (or even without) objection from defendant or Court-Right of pre-emption established-Court cannot refuse such right in exercise of discretion-Piaintiff cannot be deprived of his right for mere lapse of time unless there had been abandonment, acquiescence or waiver or at least, an alteration in position of defendant in that other party has been put in a situation in which it would not be reasonable to place him, if remedy were afterwards to be asserted-Mere fact that plaintiff waited till last day of limitation would not disentitle him to any relief, discretionary or otherwise simply because plaintiff availed of full period of limitation. P L D 1984 S.C.157 Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 S C 821; Ghulam Nabi and others v. Seth Muhammad Yaqub and others P L D 1983 S C 344 and Fateh Muhammad v. Abdul Ghani and another P L D 1981 S C 371 ref. Payment of court-fees in pre-emption suit on determination of value of subJect-matter in that behalf through (prevalent) practice of calculation on basis of annual net profits, held, has led to unfortunate long delays, unnecessary expense and unnecessary litigation on hypertechnical issues-Attempts also made to misuse law and practice in order to obtain undue advantage-Amendment in relevant law suggested. The experience so far gained regarding the payment of court-fee in preemption suits on determination of the value of the subJect-matter in that behalf through the prevalent practice of calculation on the basis of the annual net profits, has led to unfortunate long delays, unnecessary expense as also unnecessary litigation on hypertechnical issues. Sometimes attempts are made to misuse the law and practice in order to obtain undue advantage. It is appropriate that the concerned agency should examine the feasibility of amending the law regarding court-fee in pre-emption cases (at whatever limit of valuation it is decided to levy) on the basis of the sale price asserted by the vendee as paid by him. On account of devaluation and widespread inflation the value of immovable property has increased many times. If a pre-emptor is ready to pay the price paid by the vendee or whatever is determined by the Court, as the price payable by him, he should be ready to pay the court-fee accordingly (if, of course, on principle the court-fee is made leviable as the limit of the value concerned) In cases where ultimately the amount of court-fee determined by Court as payable, on a claim to be presented by the plaintiff, is found to be less than what was originaily paid by him at the time of the filing of the suit, the excess amount could be refunded in accordaace with law. The principle and procedure for refund of income-tax paid in excess of the due amount can, with advantage mutatis mutandis be adopted in this behalf also: P L D 1984 S.C.157

Copy of net profits :– Relevant net profits of land wrongly assessed or not assessed at all, or if assessed statement not made available to plaintiff within period of limitation or even if plaintiff obtained statement same appeared to be tainted with overwriting or forgery and plaintiff not taking any risk and not filing-Held, law of limitation or for that matter pre-emption, did not in any way provide that if and when plaintiff files a suit without statement of net profits, same shall be deemed that plaintiff acted illegally or dishonestly. P L D 1984 S.C.157 Plaintiff making application for supply of relevant statement of net profits on day he filed suit with understanding therein that as and where proper court-fees is determined plaintiff would pay same ; together with his application on receipt of said statement, for submission of proper court-fees worked out on basis thereof-Challan for purchase of court-fee stamps submitted with such application was for proper – court-fees and accordingly amount was deposited-Held, it was an amply fit case for allowing request of plaintiff made (amongst other provisions) under S. 1.49, C. P. C.-Failure to exercise discretion in favour of plaintiff in such case was on account of misunderstanding of legal question of limitation and liable to be corrected by High Court-High Court having not corrected question of limitation, S.C. allowed appeal, set aside Judgment and decree and allowed application of plaintiff seeking permission to pay court-fees and simultaneously producing challans of deposit of court fees with necessary consequences that suit as instituted would in law be deemed to have been filed with proper fee-Case and record remitted to trial Court for determination on merits. P L D 1984 S.C.157

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