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

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MUHAMMAD MUSHTAQ VS Malik MUMTAZ Ss. 2(d), 5 & 13---Pre-emption---Distinction between sale and exchange---Transaction recorded in mutation as an exchange or a sale, classification of---Determination---Right of pre-emption, arising of---Pre-requisite---Occurrence of sale transaction being mandatory---Courts below concurrently holding that defendant failed to prove that the transaction was an exchange---Burden of proof---Onus of proof primarily lay with the plaintiff who asserted that mutation represented a sale rather than an exchange---The dispute arose over a parcel of land measuring 24 kanals and 3 marlas situated in Dera Ismail Khan, where "MT", the owner, executed a mutation reflecting an exchange of land with the defendant, allegedly for better management---The plaintiff, claiming a superior right of pre-emption, instituted a suit asserting that the transaction, though recorded as an exchange, was in fact a sale---Trial Court treated the mutation as a sale and decreed that both parties, being co-owners in the same khata, were entitled to equal pre-emption rights---The appellate and revisional courts upheld this view---The legal issue requiring determination before the Supreme Court was "whether the transaction through mutation constituted a genuine exchange or a sale disguised as an exchange, thereby determining the applicability of the right of pre-emption under Section 5 of the KPK Pre-emption Act, 1987"?---Courts below incorrectly surmised that the defendant failed to provide sufficient proof that the transaction was an exchange---The onus of proof primarily lay with the plaintiff (pre-emptor), who asserted that the recorded mutation represented a sale rather than an exchange---The mere failure of the defendant to establish the transaction as a legitimate and bona fide exchange did not automatically validate the conclusion that it was a sale---The absence of any credible proof indicating payment of price or a promise thereof led to the conclusion that the transaction documented in the mutation was an exchange rather than the sale claimed by the plaintiff (pre-emptor)---Courts below significantly misinterpreted the evidence presented and they also misapplied the relevant legal principles---According to Section 5 of the Act, the right of pre-emption was contingent upon the occurrence of a sale; this right did not extend to transactions such as gifts or exchanges---In the present case, the plaintiff (pre-emptor) failed to demonstrate that the transaction documented in mutation constituted a sale---Consequently, the plaintiff (pre-emptor) was not entitled to the decree he sought---Judgments and decrees issued by the courts below were legally untenable and same were set aside---Petitions were converted into appeals and petition brought forth by the plaintiff (pre-emptor) was dismissed and one brought forth by the defendant was allowed.

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

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