MUHAMMAD MUSHTAQ vs Malik MUMTAZ Ss — 2026 SCMR 54 SUPREME-COURT

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MUHAMMAD MUSHTAQ VS Malik MUMTAZ Ss. 5 & 13---Pre-emption, right of---Essence, significance and effect---Pre-emptor to prove that transaction is indeed a sale transaction, obligation of---The right of pre-emption serves as a significant constraint on an owner's ability to transfer his property to whomever he likes---This right acts as a clog on the owner's freedom to alienate his property; it has therefore to be strictly construed---In a pre-emption suit, the plaintiff must not only establish that he has a preferential or superior right over the buyer (vendee) involved in the transaction, but he also bears the burden of proof to demonstrate clearly and convincingly that the transaction he seeks to pre-empt is indeed a sale, and that he has made the necessary demands for pre-emption according to law---If there exists any ambiguity surrounding the nature of the transaction in question casting doubt on whether it constitutes a sale, the plaintiff must fail---In the same vein, if the circumstances lend themselves to multiple interpretations, the courts should be disinclined to favour a reading that does not classify the transaction as a sale. Ss. 2(d) & 5---Pre-emption---Distinction between sale and exchange---Relevance---Transaction recorded in mutation as an exchange or a sale, classification of---Determination---According to Section 5 of the Act, a right of pre-emption arises in the case of a sale, which, as defined in Section 2(d) of the Act, refers to a permanent transfer of ownership of immovable property in exchange for valuable consideration---However, this definition explicitly excludes situations where agricultural lands are exchanged for purposes of better management---While the law of pre-emption can be evaded through lawful means, there is nothing inherently illegal about executing an exchange when a vendee or buyer fears that a straightforward sale in his favour might be pre-empted.

MUHAMMAD MUSHTAQ vs Malik MUMTAZ Ss — 2026 SCMR 54 SUPREME-COURT

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