MUHAMMAD YOUSAF vs HAMID FAROOQ KHAN S — 2022 MLD 1495 PESHAWAR-HIGH-COURT

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MUHAMMAD YOUSAF VS HAMID FAROOQ KHAN S.20---Pre-emptor and vendee---Division of property after pre-emptory decree/execution---Principle---Pre-emptory suit was dismissed, however, Trial Court held that pre-emptor was the co-owner along with vendee in Khasras and as such pre-emptor and vendee both had got equal right---Appellate Court decreed the pre-emptor's suit in toto---High Court partially allowed the appeal of the vendee holding that pre-emptor was shown to be co-sharer in certain Khasras, therefore, property to that extent was to be distributed/divided between pre-emptor and vendee---Executing court has directed the execution of the decree---Two mutations were attested in favour of decree-holder but prior to attestation of mutations in favour of decree-holder, he passed away; so the same were mutated in favour of legal heirs of decree-holder---Petitioner (one of the judgement-debtors) challenged one of the mutations being result of fraud but his plaint was concurrently rejected---Petitioner filed execution petition which was contested by the decree-holder but it was concurrently held maintainable---Respondents/decree-holders contended that the decreed property should be distributed between decree-holders and the judgment debtor in equal shares---Validity---Question was in respect to distribution of property through mutation which was attested on the basis of High Court's decision in favour of decree-holders; that admittedly, total Khata was the joint ownership of pre-emptor and the petitioner wherefrom 18 Kanals and 15 Marlas property was transferred in favour of vendees in equal shares; that after the decree was gotten by pre-emptor in his favour, the share of one of the vendees had to be transferred in favour of decree-holders, whereas to the extent of remaining 9 Kanals and 7-1/2 Marlas both the pre-emptor and vendee were co-sharers, therefore, the share of vendee (i.e. 9 Kanals and 7-1/2 Marlas) would be divided equally (which became 4 Kanals, 13 Marlas and 8 Sarsais); hence, from 18 Kanals and 15 Marlas of the disputed property to the extent of the said Khata, total entitlement of the decree-holders would be 14-Kanals, 1 Marla and 6-1/2 Sarsais---For equal division, it was sine qua non that both the pre-emptor and vendee were to fall within the same class with respect to their right of pre-emption only than the disputed property to the extent of their equal rights could be divided between them equally---Impugned mutation had rightly been attested (entitling the petitioner for 4 Kanal 13 Marla and 8-1/3 Sarsai and the preemptors 14 Kanal 1 Marla and 6-1/2 Sarsai)---Concurrent findings of Executing Court, however, in fresh execution proceedings were patently illegal, based upon wrong interpretation of S.20 of the Pre-emption Act, 1987---Petitioners' said execution petitions were dismissed---Revision petitions were disposed of accordingly. Head NotesCase Description

MUHAMMAD YOUSAF vs HAMID FAROOQ KHAN S — 2022 MLD 1495 PESHAWAR-HIGH-COURT

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