The
North-West Frontier Province Pre-emption
Act, 1987
[X OF 1987]

28th April, 1987

An Act to bring in conformity with the
Injunctions of Islam the law relating to Pre-emption

No. PA/N.-W.F.P./Legis./87/6163, dated 28th April, 1987. The North-West Frontier Province Pre-emption Act, 1987, having been passed by the Provincial Assembly of the North-West Frontier Province on the 21st April, 1987, and assented to by the Governor of the North-West Frontier Province on the 26th April, 1987, is hereby published as an Act of the Provincial Legislature of North-West Frontier Province.

Whereas the Council of Islamic Ideology, in consultation with the Law Division, has recommended that it is necessary to modify 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: –

Court Decisions

–Preamble—Pre-emption right being a feeble right, pre-emptor seeking to exercise such right was bound to perform and fulfill its requirements meticulously and, any failure in that behalf would deprive him of success in getting pre-emption decree. 1994 SCMR 849; 1995 SCMR 135; 1997 SCMR 1267, 1987 MLD 2945; 1991 MLD 986; PLD 1960 Karachi 741; PLD 1960 Lahore 757; 1991 SCMR 716 and 2000 MLD 814 ref. 2003 Lawvision 25 = PLJ 2003 Peshawar 120

1. Short title, extent and commencement. (1) This Act may be called the North-West Frontier Province Pre-emption Act, 1987.

(2) It extends to the whole of the North-West Frontier Province.

(3) It shall come into force at once.

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

(a) ‘immovable property’ includes land, building, house, shop, water tank and well;

(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 reasons of such rights; 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-bi-shart al-iwaz but does not include-

(i) transfer of an immovable property through inheritance or will or gift, other than hiba-bil-iwaz or hiba-bi-shart al-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) the creation of any occupancy tenancy by a landlord whether for consideration or otherwise;
(iv) exchange of agricultural lands for better management; and
(v) transfer of an immovable property for a consideration other than valuable consideration, such as the transfer of an immovable property by way of dower or composition in a murder or hurt case.

Court Decisions
Exchange of land –Exchange of land for better management-Phrase better management used in Cl. (iv) of S. 2 of North-West Frontier Province Pre-emption Act, 1987 was of somewhat wide connotation and amplitude-Exemption from pre-emption right in present from was conditional and was an exception to the rule regarding exchange of property-To claim valid exemption from the pre-emption on the basis of exchange of agricultural land, vendee was required to prove by evidence that exchange was necessary because of requirements of better management-No hard and fast rule could be laid of better management-No hard and fast rule could be laid down to define and interpret “better management”. 2004 C L C 359
Pre-emption–Suit for–Dismissal of suit but appeal accepted–Challenge to–Whether a voluntary sale made by a judgment debtor in execution of a decree for money not in conformity with procedure in C.P.C., is exempt from pre-emption–Question of–A compulsory sale is in fact a court sale which is invariably made in accordance with procedure prescribed by C.P.C.–Essentials of such a sale include attachment of property, appointment of an auctioneer, issuance of a proclamation, public auction and grant of sale certificate to purchaser, but none of these elements is present in this case–Held: There is no escape from conclusion that it is voluntary sale pure and simple and not a Court sale in execution of money decree-Held further: Only a court sale made in accordance with procedure laid down in C.P.C. is exempt from pre-emption and not a voluntary sale made by judgment-debtor–Petition dismissed. PLJ 1994 Peshawar 12 [Dera Ismail Khan Bench]

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

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

5. Right of pre-emption.

Court Decisions
Pre-emption suit-Sale transaction was alleged by vendee-defendant to be gift—Suit was decreed by Trial Court and upheld by Appellate Court—Validity—Defendant had not produced alleged donor (vendor) to prove that transaction was gift and not sale—Alleged donor was alive and very much present, but such strong piece of evidence had been withheld by defendant for reasons best known to him—Article 129(g) of Qanun-e-Shahadat, 1984 provided that legal presumption would be that in case alleged donor had been produced, his deposition must have been against defendant—No relationship between alleged donor and defendant existed, on the basis of which suit property could be gifted to defendant—No-misreading or non-reading of evidence or any material irregularity or illegality or jurisdictional defect/error was found in impugned judgment/decree warranting interference—High Court dismissed revision petition. Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235 rel. 2003 Lawvision 38 = P L D 2003 Peshawar 189

The right of pre-emption shall arise in case of sale.

(2) Nothing contained in sub-section (1) shall prevent a Court from holding that an alienation purporting to be other than sale is in fact a sale.

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

Court Decisions
Suit for pre-emption— Determination of sale price—Two different criteria for determination of sale price i.e. one year average or the registered sale-deed—Presumption of truth would be attached to the payment made through registered sale-deed because it was a public document—Where the value of a right, interest or title was stated in the document. Court would not go behind that value and would see whether the consideration for a deed was stated in terms of money—Question of liability to the registered deed must be determined with reference to the amount so entered and not the real value of the property, 2001 Lawvision 10 = 2001 CLC 576

(a) firstly in Shafi-Sharik;
(b) secondly in Shafi-Khalit; and
(c) thirdly in Shafi-Jar.

Explanation I. ‘Shafi-Sharik’ means a person who is a co-owner in the corpus of the undivided immovable property sold with other person or persons.
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.

Court Decisions
Exemption from pre-emption right-Exchange of land for better management-Phrase better management used in Cl. (iv) of S. 2 of North-West Frontier Province Pre-emption Act, 1987 was of somewhat wide connotation and amplitude-Exemption from pre-emption right in present from was conditional and was an exception to the rule regarding exchange of property-To claim valid exemption from the pre-emption on the basis of exchange of agricultural land, vendee was required to prove by evidence that exchange was necessary because of requirements of better management-No hard and fast rule could be laid of better management-No hard and fast rule could be laid down to define and interpret “better management”. 2004 C L C 359
Plaintiff filed appeal against judgment and decree of Trail court through his attorney which was accepted-competency of appeal was challenged by defendant contending that attorney of plaintiff was not conferred with express powers to file appeal or revision vide deed of attorney-Contention of defendant was repelled for the reasons that all the acts performed right up to the High court by Attorney had been either expressly or impliedly confirmed and ratified by plaintiff/principal— Although deed of power of attorney was to be strictly construed and unless authority/power was conferred expressly, it could not be construed to be implied or inherent in the agent, but provisions of Ss. 196, 197 & 199 of Contract Act, 1872 were an exception to the general rule wherein principal had been given an option to ratify an act not expressly conferred on the agent-Such ratification could be either express or implied and once such acts of agent were ratified by principal, same would stand validated for all legal purposes and would bind principal himself-All acts performed and steps taken by attorney having been confirmed/ratified by plaintiff through his conduct both express and implied, same would be held to have been validly performed by attorney-Appeal filed through attorney was competent, in circumstances. 2004 C L C 359
Suit filed by pre-emptor was resisted by defendant on ground that time, place and names of witnesses of Talbs were neither given by plaintiff in plaint nor in notice of Talb-e-Ishhad which omission was fatal-Validity-Omission of time, place and names of witnesses from the plaint was not fatal to the case of names of witnesses from the plaint was not fatal to the case of plaintiff-Non-signing of notice of Talb-e-Ishhad by attesting witnesses was also not of much consequence because both witnesses appeared in the court and had confirmed that they had attested the original notice-Even in the written statement receiving of notice of Talb-e-Ishhad had not been denied by defendant-Omission to sign notice by attesting witnesses was a technical one. 2004 C L C 359

7. Priorities in the right, of pre-emption. (1) Where all the classes of pre-emptors referred to in section 6 are the claimants, the first class shall exclude the second and the second shall exclude the third:
(2) Where there are more than one participators in the special rights attached to the immovable property sold, the person having special right shall have precedence over a person having a general right.
Illustrations
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 watercourse shall have precedence over a person having right of irrigation from the card. But if such garden is irrigated from the small canal. The person having right of irrigation from watercourse as well as the person having right of irrigation from the canal shall both have right of pre-emption.

3) Where there are more than on 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 precedents over the person having right of passage of water.

(4) 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 nearer to the immovable property sold.

8. Joint right of pre-emption, how exercised. Where a right of pre-emption vests in any class or group of 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.

9. Method of distribution of the property. where more than one person equally entitled. Where more than one person are found by the Court to be equally entitled to the right of pre-emption the property shall be distributed amongst 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 partners, 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. Withdrawal of claim. 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.

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

12. Notice of intention to sell. (1) Where any person proposes to sell any immovable property in respect of which a right of pre-emption exists, he may give notice to all such persons having such right of the price at which he is willing to sell the property.

(2) The notice under sub-section (1) shall be given through any Court within the local limits of whose jurisdiction such immovable property is situated and shall be deemed sufficiently given if it be stuck upon the main entrance of mosque and on any other public place of the village, city or place where the property is situated].

Court Decisions
read with Punjab Pre-emption Act, 1991, Section 12–Right to revoke sale–Provision of–Whether repugnant to Injunctions of Islam–Question of–Vendees right to revoke sale has been challenged as repugnant to Injunctions of Islam, but no Hadith has been quoted in support thereof–Author of Badai Al Sanai writes that there is no right of pre-emption in property sold with stipulation of option of revocation of sale by vendor–Held: Section 12 of both Acts is repugnant to Injunctions of Islam (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
read with Punjab Pre-emption Act, 1991, Section 12–Right to revoke sale–Provision of–Whether repugnant to Injunctions of Islam–Question of–Vendees right to revoke sale has been challenged as repugnant to Injunctions of Islam, but no Hadith has been quoted in support thereof–Author of Badai Al Sanai writes that there is no right of pre-emption in property sold with stipulation of option of revocation of sale by vendor–Held: Section 12 of both Acts is repugnant to Injunctions of Islam (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53

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 order, namely:-

(a) Talb-i-Muwathibat;
(b) Talb-i-Ishhad; and
(c) Talb-i-Khusumat.

Explanations. I. ‘Talb-i-Muwathibat’ means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he had come to know of the sale declaring his intention to exercise the right of pre-emption.
Note. Any words indicative of intention not exercise the right of pre-emption are sufficient.
Explanations. II. ‘Talb-i-Ishhad’ means demand by establishing evidence.
Explanations. III. ‘Talb-i-Khusumat’ means demand by filing 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) [Subject to his ability to do so, 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 notice under section [32], or knowledge, whichever may be earlier, 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 due 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
Talb-i-Muwathibat–Proof—Minor contradictions with regard to such Talb, specially when statement of witnesses were recorded after long time, would be ignored. Abdul Qayyum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798 ref. 2003 Lawvision 38 = P L D 2003 Peshawar 189
Leave to appeal was granted by Supreme Court to consider; whether the High Court was not justified to have set aside the judgment of Lower Appellate Court in its revisional jurisdiction inasmuch as the pre-emptor had failed to make Talb-e-Muwathibat in accordance with S.13(l) of North-West Frontier Province Pre-emption Act, 1987 and had also omitted to mention the making of such Talb in the notice sent by him to appellant. 2002 Lawvision 218 = 2002 SCMR 219
Pre-emption suit—Requirement of mentioning Talb-i-Muwathibat in notice of Talb-i-Ishhad—Pre-emptor successfully established performance of both the Talbs by leading oral evidences—Trial Court decreed the suit and the findings of Trial Court were affirmed by High Court in exercise of revisional jurisdiction—Contention of the Vendee was that the pre-emptor failed to make any reference of Talb-i-Muwathibat in the notice issued in fulfillment of Talb-i-Ishhad—Validity—Personally apprising to vendee by pre-emptor about his right of pre-emption in suit-land tantamounted to mentioning of Talb-i-Muwathibat and thus the fact that the pre-emptor was also approached through Jirga clearly spelt out his intention of asserting his right of pre-emption, thus, using such phrases in the notice issued to vendee under Ss.l3(2) & 13(3) of North-West Frontier Province Pre-emption Act, 1987, was sufficient to hold that earlier performance of Talb-i-Muwathibat was duly mentioned—Where the pre-emptor had performed both Talb-i-Muwathibat and Talb-i-Ishhad according to S.13(1) of North-West Frontier Province Pre-emption Act, 1987, Supreme Court refused to interfere with the judgment passed by High Court, Muhammad Ramzan v. Lal Khan 1995 SCMR 1510; Mst. Shamim Akhtar v. Kh. Maqsood Ahmed and 3 others 1998 SCMR 2227; Sar Anjam v. Abdul Raziq 1999 SCMR 2167; 1992 SCMR 1886; PLD 1997 SC 366 and PLD 1997 SC 883 ref. Lawvision 218 = 2002 SCMR 219
Pre-emption suit—Original notice of Talb-i-Ishhad—Producing of such notice by vendee—Effect—Where such notice was tendered by vendee himself, its genuineness and contents mentioned therein were admitted to be true and correct for all intents and purposes—Vendee could not raise objection to such document as the same was primary document. Lawvision 218 = 2002 SCMR 219
Pre-emption–Suit for–Decree passed in–Challenge to–Whether Talabs had been correctly made–Question of–After sale mutation, respondent went to Patwari on 13.9.1987 and obtained copy of record of rights whereby he came to know about transaction–He immediately made announcement of his intention to lodge a pre-emption suit–Within a period of two weeks, he sent a notice to petitioner through registered A.D. post–Record shows that notice carrying Talb-i-Ishhad duly attested by truthful witnesses, had been sent to vendee on 21.9.1987–It is argued that respondent in fact had knowledge of transaction on 17.3.1987 and in support thereof, an attested copy of an application allegedly moved by respondent for obtaining copy of suit mutation, was placed on file of trial court–This document was not produced in evidence and exhibited in trial court and not even mentioned in pleadings by petitioner–This document cannot be considered at this stage–Held: Talabs were correctly made in time by respondent, findings of two forums below are based on evidence, and they cannot be said to have exercised jurisdiction illegally or with material irregularity–Petition dismissed. PLJ 1992 Peshawar 67
Suit for Pre-emption–Decreed to–Appeal against—Acceptance of–Appeal against–In order to succeed in a suit for pre-emption must establish ‘that three demands were made, namely, Talab-e-Muwathibat, Talb-e-Ishhad and Talab-e-Khushrnat in accordance with law–In notice dated 14.5.1990 no ‘ mention was made about “Talab-e-Muwathibat” exercised by appellant, nor in evidence of her attorney before Court
Right of pre-emption, exercise of—Talb-i-Ishhad—Object and scope—After having performed Talb-i-Muwathibat, the pre-emptor is required to confirm his intention to pre-empt the property during process of making Talb-i-Ishhad by sending a written notice to the vendee in obedience of S.13(2) of North-West Frontier Province Preemption Act, 1987. 1995 SCMR 1510; 1998 SCMR 2227 and 1999 SCMR 2167 ref Lawvision 218 = 2002 SCMR 219.
Notice of Talb-i-Ishhad—Format—No format has been prescribed to issue the notice as per requirement of S.13(2) & (3) of North-West Frontier Province Pre-emption Act, 1987, therefore, from language employed therein inference has to be drawn to gather the intention of the pre-emptor Lawvision 218 = 2002 SCMR 219.
Notice of Talb-i-Ishhad—Format—No format has been prescribed to issue the notice as per requirement of S.13(2) & (3) of North-West Frontier Province Pre-emption Act, 1987, therefore, from language employed therein inference has to be drawn to gather the intention of the pre-emptor Lawvision 218 = 2002 SCMR 219.
Pre-emption–Suit for–Whether, while making Talb-i-Ishhad, a reference to Talb-i-Muwathibat is essential necessity–Question of–On plain reading of Section 13 of Act, there is hardly anything in law indicative of necessity of a reference to be made to Talb-i-Muwathibat while making Talb-i-Ishhad–Held: A perspective pre-emptor may refer to making of Talb-i-Muwathibat in notice of Talb-i-Ishhad, if he so desires, but neither he is bound nor Section 13(3) of Act requires him to do so–Revision dismissed. PLJ 1991 Peshawar 48
read with Punjab Pre-emption Act, 1991, Section 13(3)–Talb-i-Ishhad–Provision of–Whether suit can be dismissed if pre-emptor fails to mention making of Talb-i-Muwathibat while making Talb-i-Ishhad–Question of–If pre-emptor can successfully and satisfactorily discharge burden of proving before Qazi that he had-made Talb-i-Muwathibat, his suit must be decreed–Held: If pre-emptor can prove that he had made Talb-i-Muwathibat, his suit cannot be dismissed on pretext that he had not mentioned Talb-i-Muwathibat while making Talb-i-Ishhad (Per Ibadat Yar Khan, J). PLJ 1992 FSC 53
NWFP Pre-emption Act, 1987 (X of 1987)- —-S.16 read with Punjab Pre-emption Act, 1991, Section 16–Pre-emption right–Survival of right after death of pre-emptor in certain cases–Provision of–Whether repugnant to Injunctions of Islam–Question of–Hanafi School of fiqh considers right of pre-emption to be a personal right which becomes extinct on death of pre-emptor, but according to other schools, this right relates to property–Legislature seems to have approved opinion of other schools of fiqh–Held: Provision of Section 16 of both Acts does not come into conflict with Injunctions of Islam (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
Making of Talbs-Plaintiff by producing evidence on record had fully proved that he had made Talb-i-muwathbat and Talb-i-Ishhad in time on receiving information with regard to transaction of suit-land-contention that Talb-e-Muwathibat as well as Talb-e-Ishhad were made much before the sale of suit property, was repelled. 2004 M L D 341
Suit filed by pre-emptor was resisted by defendant on ground that time, place and names of witnesses of Talbs were neither given by plaintiff in plaint nor in notice of Talb-e-Ishhad which omission was fatal-Validity-Omission of time, place and names of witnesses from the plaint was not fatal to the case of names of witnesses from the plaint was not fatal to the case of plaintiff-Non-signing of notice of Talb-e-Ishhad by attesting witnesses was also not of much consequence because both witnesses appeared in the court and had confirmed that they had attested the original notice-Even in the written statement receiving of notice of Talb-e-Ishhad had not been denied by defendant-Omission to sign notice by attesting witnesses was a technical one. 2004 C L C 359
¬Original notice of Talb i Ishhad Producing of such notice by vendee ¬Effect Where such notice was tendered by vendee himself, its genuineness and contents mentioned therein were admitted to be true and correct for all intents and purposes Vendee could not raise objection to such document as the same was primary document. 2002 S C M R 219
Sending of photo copy of the original notice Vendee under the provision of S.13(3), North West Frontier Province Pre emption Act, 1987 has, to be served with original notice of “Talb i Ishhad” Photo copy could. not be treated as original ¬Where the pre emptor retained the original notice with himself and sent photo copy of the same to the vendee, Lower Appellate Court dismissed the suit of the pre emptor Suit was rightly dismissed for want of non compliance of S.13(3), North West Frontier Province Pre¬emption Act, 1987. 2000 C L C 336
E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; PLD 1978 SC (AJ&K) 37 and E.A. Evans v. Muhammad Ashraf NLR 1979 (Civil) 178 ref.

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

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.

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

Court Decisions

16 read with Punjab Pre-emption Act, 1991, Section 16–Pre-emption right–Survival of right after death of pre-emptor in certain cases–Provision of–Whether repugnant to Injunctions of Islam–Question of–Hanafi School of fiqh considers right of pre-emption to be a personal right which becomes extinct on death of pre-emptor, but according to other schools, this right relates to property–Legislature seems to have approved opinion of other schools of fiqh–Held: Provision of Section 16 of both Acts does not come into conflict with Injunctions of Islam (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53

17. Abatement of right of pre-emption. (1) Where a pre-emptor before the decree of a Court has alienated his property on the basis of which he is entitled to the right of pre-emption, his right of pre-emption shall abate.

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

18. Exercise of the 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. 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. 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.

Court Decisions
Pre-emptor and vendee falling within same class of pre-emptors and having equal right of pre-emption-Court in such cases would grant decree in equal shares—In pre-emption suits, vendees even if having a right superior to that of pre-emptor takes plea simply to the effect that pre-emptor does not have superior right of pre-emption, Court must determine as to where do parties stand and what decision was ultimately to be taken in the light of what has come before it in the shape of evidence. 2003 Lawvision 215 = PLJ 2003 SC 778
Specific plea not taken in written statement by vendee that he had equal right of pre-emption with pre-emptor—Effect—Vendee is not bound to take specific plea under S. 20 of N.W.F.P. Pre-emption Act, 1987, in as much as, even if a vendee was proceeded ex-parte and even if there was no written statement on record. Court still was bound to grant decree in equal shares if intimately it was found in evidence that both parties belonged to same class of pre-emptors—Being possessed of a superior right, equal right or no right is although a question of fact be duly proved by evidence, yet consequence thereof being a question of law, Court can grant or refuse a decree in the light of S. 20 of Act of 1987. PLJ 1998 SC 710 ref. 2003 Lawvision 215 = PLJ 2003 SC 778
read with Punjab Pre-emption Act, 1991, Section 20–Equal rights of pre-emptor and vendee–Sharing of property equally by them–Provision of–Whether repugnant to Injunctions of Islam–Question of–There is no explicit verse of Holy Quran and Sunnah of Holy Prophet which may be put forward in support of proposition that law as framed under Section 20 is repugnant to Injunctions of Islam–However, provision is in conformity with Hanafi school of fqh–Held: Provision of Section 20 of both Acts is not repugnant to Injunctions of Islam. (Per Tanzilur Rahman CJ) PLJ 1992 FSC 53

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.

22. Improvement made in the status of the vendee-defendant after institution of the suit. Any improvement made in the status of a vendee-defendant after the institution of suit for preemption [otherwise than through inheritance] shall not affect the right of pre-emptor-plaintiff.

Court Decisions
read with Punjab Pre-emption Act, 1913, Section 21-A–Improvement in status of vendee after institution of suit not to effect right of pre-emption–Provision of–Whether repugnant to Injunctions of Islam–Question of–It appears that legislature consciously omitted excepting phrase “otherwise than through inheritance or succession” as contained in Section 21-A of Punjab Pre-emption Act, 1913–Subsequent improvement by conscious act of vendee may be objectionable but an improvement on account of natural phenomena, e.g. inheritance, requires exception–Held: Respondent is directed to add phrase “otherwise than through inheritance” in Section 22 of Act (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
Improvements made in property–Compensation to vendee.-Whether vendee is entitled to compensation for improvements made by him–Question of–Held: A proviso should also be added to Section 22 that if after acquiring property, some improvements are made by vendee in property out of necessity and he is losing property in favour of pre-emptor on account of decree, he should be entitled to a fair and equitable compensation for improvements made by him. (Per Ibadat Yar Khan J). PLJ 1992 FSC 53

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

(a) a waqf property or a property used for charitable, religious or public purpose; or
(b) a property by the Federal or a Provincial Government or a local authority.

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

Court Decisions
Exemption from pre-emption of factory or an industrial undertaking–Provision of–Whether repugnant to Injunctions of Islam–Question of–If a property used for factory or industrial undertaking is owned by a person or group of persons or a company, it cannot be exempted from right of pre-emption–Held: Clause (c) of sub-section (1) of Section 23 of Act is repugnant to Injunctions of Islam (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53

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 if no sale price is mentioned in the sale-deed or in the mutation, the Court, shall require the deposit of one-third of the probable value of the property.

(2) Where the plaintiff fails to deposit one-third of the same price of the probable value of the property within the period fixed by the Court, his suit shall be dismissed.

(3) Where the plaintiff withdraws the sum deposited under sub-section (1), his suit shall be dismissed.]

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

(5) The probable value fixed under sub-section (1) shall be available for the discharge of costs.

Court Decisions
24 read with Punjab Pre-emption Act, 1991, Section 24–Deposit of one-third of sale price–Provision of–Whether repugnant to Injunctions of Islam–Question of–This provision of law as enacted by Provincial Assembly, seems to be based on Ijtihad taking into account realities of time and place–Held: There is no repugnancy of said provision to Injunctions of Islam. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
Pre-emption–Suit for–Whether High Court has jurisdiction to declare that Section 24 of Act is un-Islamic–Question of–Provisions of Section 24 of Act cannot be said to be un-Islamic because object of enactment of NWFP pre-emption Act, 1987 was to bring pre-emption law in conformity with injunctions of Islam–Held: If any provision of Act is considered as un-Islamic, for that purpose High Court has no power to declare so. PLJ 1992 Peshawar 3 PLJ 1991 SC 95 rel.
Pre-emption–Suit for–Deposit of one-third of sale price and bank guarantee for two-third of same–Order of–Challenge to–Under Section 24 of Act, court is under obligation to direct plaintiff to deposit one-third of sale price and for remaining two-third to furnish bank guarantee to satisfaction of court–Question of actual payment of price or its fixation in good faith is to be resolved at time of trial as envisaged in Sections 27 and 28 of Act–Held: Court while making direction for deposit of one-third of sale price in cash and to furnish bank guarantee for remaining two-third, has acted in accordance with law. PLJ 1992 Peshawar 3
as amended by N.W.F.P. Pre-emption Ordinance X of 1992]—Trial Court cannot legally extend time limit for deposit of pre-emption amount in view of S.24(b) of N.W.F.P. Pre-emption Act, 1987 as amended in 1992—Amended provision of S.24(b) of Pre-emption Act 1987, makes it obligatory for the Courts to dismiss suit on failure of pre-emptor to deposit l/3rd of sale price within period fixed by Court. 2003 Lawvision 25 = PLJ 2003 Peshawar 120

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 to 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.

Court Decisions
read with Punjab Pre-emption Act, 1991, Sections 25 & 27–Provisions about deposit or refund of excess price and fixing of price for purposes of suit–Whether repugnant to Injunctions of Islam–Question of–All these provisions are based on Ijtihad–No verse of Holy Quran or Sunnah of Holy Prophet has been cited–Held: Members of Assembly, as representatives of people, are fully competent to legislate on subject based entirely on Ijtihad and there is no repugnancy. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
NWFP Pre-emption Act, 1987 (X of 1987)n—-S.13 read with Section 32–Pre-emption–Suit for–Whether procedure

26. The 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 or any other Court or a Revenue Officer or a local authority.

27. Fixing of price for purposes of suit in case of sale.

(1) Where in the case of a sale the parties are not agreed 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 has been 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
Suit for pre-emption— Determination of sale price—Two different criteria for determination of sale price i.e. one year average or the registered sale-deed—Presumption of truth would be attached to the payment made through registered sale-deed because it was a public document—Where the value of a right, interest or title was stated in the document. Court would not go behind that value and would see whether the consideration for a deed was stated in terms of money—Question of liability to the registered deed must be determined with reference to the amount so entered and not the real value of the property, 2001 Lawvision 10 = 2001 CLC 576
Pre-emption–Suit for–Deposit of one-third of sale price and bank guarantee for two-third of same–Order of–Challenge to–Under Section 24 of Act, court is under obligation to direct plaintiff to deposit one-third of sale price and for remaining two-third to furnish bank guarantee to satisfaction of court–Question of actual payment of price or its fixation in good faith is to be resolved at time of trial as envisaged in Sections 27 and 28 of Act–Held: Court while making direction for deposit of one-third of sale price in cash and to furnish bank guarantee for remaining two-third, has acted in accordance with law. PLJ 1992 Peshawar 3
read with Punjab Pre-emption Act, 1991, Sections 25 & 27–Provisions about deposit or refund of excess price and fixing of price for purposes of suit–Whether repugnant to Injunctions of Islam–Question of–All these provisions are based on Ijtihad–No verse of Holy Quran or Sunnah of Holy Prophet has been cited–Held: Members of Assembly, as representatives of people, are fully competent to legislate on subject based entirely on Ijtihad and there is no repugnancy. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53

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 of 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 neighborhood; and the value of similar property as shown by previous sales made in the near past.

Court Decisions
Suit for pre-emption— Determination of sale price—Two different criteria for determination of sale price i.e. one year average or the registered sale-deed—Presumption of truth would be attached to the payment made through registered sale-deed because it was a public document—Where the value of a right, interest or title was stated in the document. Court would not go behind that value and would see whether the consideration for a deed was stated in terms of money—Question of liability to the registered deed must be determined with reference to the amount so entered and not the real value of the property, 2001 Lawvision 10 = 2001 CLC 576
Pre-emption–Suit for–Deposit of one-third of sale price and bank guarantee for two-third of same–Order of–Challenge to–Under Section 24 of Act, court is under obligation to direct plaintiff to deposit one-third of sale price and for remaining two-third to furnish bank guarantee to satisfaction of court–Question of actual payment of price or its fixation in good faith is to be resolved at time of trial as envisaged in Sections 27 and 28 of Act–Held: Court while making direction for deposit of one-third of sale price in cash and to furnish bank guarantee for remaining two-third, has acted in accordance with law. PLJ 1992 Peshawar 3

29. [Replead]

Court Decisions
read with Punjab Pre-emption Act, 1991, Section 29–Provision empowering Government to exclude certain areas from pre-emption–Whether repugnant to Injunctions of Islam–Question of–According to Hadith of Holy Prophet, no property can be exempted from right of pre-emption–However, Government in dire necessity, may exempt specific property from right of pre-emption if it is acquired in public interest–Interpretation of public interest must necessarily be based on principles of Shariah–It would not be enough merely to mention words “public interest” to justify exemption–Held: Section 29 of both Acts, as it stands, appears to be repugnant to Injunctions of Islam. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
29 read with Punjab Pre-emption Act, 1991, Section 29–Provision empowering Government to exclude certain areas from pre-emption–Whether repugnant to Injunctions of Islam–Question of–According to Hadith of Holy Prophet, no property can be exempted from right of pre-emption–However, Government in dire necessity, may exempt specific property from right of pre-emption if it is acquired in public interest–Interpretation of public interest must necessarily be based on principles of Shariah–It would not be enough merely to mention words “public interest” to justify exemption–Held: Section 29 of both Acts, as it stands, appears to be repugnant to Injunctions of Islam. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
Pre-emption–Suit for–Declaration of Section 29 as repugnant to Injunctions of Islam–Prayer for–Whether High Court had jurisdiction to give such declaration–Question of–Held: View expressed by High Court that it has no jurisdiction to declare exemption under newly enacted Pre-emption Act as being against Injunctions of Islam as contained in Quran and Sunnah, is correct–Petition dismissed. PLJ 1991 SC 95

30. Appearance of Ulema in addition to or instead of Advocates. Any party to a proceeding under this Act may, in addition to, or instead of, an advocate engage an Alim who is qualified as such from a Deeni Madrasah approved by the Provincial Government for this purpose.

31. Limitation. The period of limitation for a suit to enforce a right of pre-emption under this Act shall be [one hundred, and twenty days] from the date-

(a) of the registration of the sale-deed; or
(b) of the attestation of the mutation, if the sale is made otherwise than through the registered sale-deed; or
(c) on which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale-deed or the 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 :– Pre-emption suit arising from sale effected through mutation-Such suit has to be filed within 120 days from date of attestation of mutation-Issuance of public notice under S. 32 of North-West Frontier province pre-emption Act, 1987 has not nexus with period of limitation prescribed by S. 31 thereof-provision of S. 32 of the act is meant to provide an extra source of Knowledge for making Talb-i-Muwathibat and alternate time frame for making Talb-i-Ishhad in accordance with S. 13(3) thereof. 2004 C L C 284
Pre-emption suit—Sale effected through mutation—Limitation starting point—Period of limitation would start from the date of attestation of mutation and not from date, when vendee entered into possession of property. Nazu Khan v. Karam Hussain Khan through Legal Heirs 2000 SCMR 1053; Tajul Mulk v. Mst. Zaitoon Bibi and 3 others PLD 1994 SC 356; Mst. Majidan Khanum v. District Judge, Vehari 1984 CLC 3270 and Abdul Akbar v. Fazal Mahmood and 2 others 1990 MLD 1019 fol. 2003 Lawvision 38 = P L D 2003 Peshawar 189
read with Punjab Pre-emption Act, 1991, Section 30–Limitation for bringing pre-emption suit–Provision of–Whether repugnant to Injunctions of Islam–Question of–Period of one year as limitation for filing suit for pre-emption, is unreasonable–Held: Section 31 is repugnant to Injunctions of Islam–Held further Respondent is directed to amend Section 31 by fixing period of 120 days. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
read with Sections 13 & 32, as amended by Amendment Act X of 1992–Pre-emption suit–Limitation for–Whether period of 12O days will start from date of knowledge–Question of–Section 31 as amended, prescribes a period of limitation for a pre-emption suit from date of registration of sale deed or attestation of mutation or taking of physical possession one after other, and only in absence of sale transaction having been affected in above modes, period of limitation shall be counted from date of gaining knowledge–Held: Act No. X of 1992 has been given effect to from 31.12.1992 and shall be applicable even from date of its commencement irrespective of fact whether sale was affected before 31.12.1991–Held further: Suits filed beyond prescribed period of limitation of 120 days shall he deemed time barred entailing rejection of plaints under Order VII Rule 11(d) C.P.C. PLJ 1994 Peshawar 81

32. Notice.

(1) The Registrar registering the sale-deed or the Revenue Officer attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation.

(2) The notice under sub-section (1) shall be deemed sufficiently given if it be stuck up on the main entrance of a mosque and on any other public place of the village, city or place where the property is situated:
Provided that if the property is situated in a city, the notice shall also be given through a newspaper having large circulation in such city.

(3) The charges for the notice under sub-section (2) shall be recovered from the vendee by the Registrar or the Revenue Officer, as the case may be, at the time of registration or attestation of mutation.

Court Decisions
Pre-emption suit—Talb-i-Muwathibat—Making of such Talb after getting attested copy of the sale-deed—Contention of the vendee was that the suit be dismissed as Talb-i-Muwathibat was not immediately after gaining knowledge of the sale—Validity—Record did not indicate as to whether in terms of S.32 of North-West Frontier Province Pre-emption Act, 1987, the Sub-Registrar in exercise of his duty had issued a notice to general public disclosing the factum of transaction of sale of suit-land—In absence of such information it would be too technical to non-suit the pre-emptor that he had gained information about the sale of the suit-land prior to obtaining copy of sale-deed and after apprising him about the sale transaction he did not perform Talb-i-Muwathibat—Supreme Court declined to extend any benefit to the vendee on such ground. Lawvision 218 = 2002 SCMR 219
Notice of sale–Provision of–Whether pre-sale notice is necessary under Injunctions of Islam–Question of–Section 32 provides that notice be issued by Registrar after sale is complete and is registered in his record–Held: While notice under Section 32 may be retained, a pre-sale notice by vendor should be made mandatory for every sale and must be added in statutes. (Per Ibadat Yar Khan J). PLJ 1992 FSC 53
Ss. 31 & 32-Pre-emption suit arising from sale effected through mutation-Limitation-Such suit has to be filed within 120 days from date of attestation of mutation-Issuance of public notice under S. 32 of North-West Frontier province pre-emption Act, 1987 has not nexus with period of limitation prescribed by S. 31 thereof-provision of S. 32 of the act is meant to provide an extra source of Knowledge for making Talb-i-Muwathibat and alternate time frame for making Talb-i-Ishhad in accordance with S. 13(3) thereof. 2004 C L C 284

33. Matters ancillary or akin to the provisions of this Act. Matters ancillary or akin to the provisions of this Act which have not been specifically covered under any provision thereof shall be decided according to Shari’ah.

34. Application of the Civil Procedure Code and the law on evidence. The provisions of the Code of Civil Procedure, 1908 (Act V of 1908), and the law on evidence in vogue shall, mutatis mutandis, apply to the proceedings under this Act.

35. Repeal. (1) The North-West Frontier Province Pre-emption Act, 1950 (N.W.F.P. Act XLV of 1950), is hereby repealed.

(2) In the cases and appeals filed under the law referred to in sub-section (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof.

(3) All other cases and appeals not covered under sub-section (2) and instituted under the law, referred to in sub-section (1) and, which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act.

Court Decisions
Pre-emption cases and appeals under repealed law–Provision in respect of–Whether repugnant to Injunctions of Islam–Question of–Section 35(3) deals with cases and appeals filed under repealed law which were pending on 31.7.1986 and in which decrees were not yet passed, were to lapse and suits of pre-emptors were to be dismissed except those in which right of pre-emption is claimed under provisions of Act of 1987–Held: There seems to be nothing in Section 35(3) which may be said as repugnant to Injunctions of Islam. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53

36. Rules. Government may, in consultation with the Council of Islamic Ideology, by notification in the official Gazette, make such rules as it may consider necessary to carry out the purposes of this Act.