P L D 1971 Lahore 727 (PLP)

This will dispose of C. R. No. 206 of 1963 by Mst. Imam Hussain Bibi and C. R. No. 229 of 1963 by Abdur Rashid. Both these revisions are to be treated as regular second appeals in accordance with section 5(5) of the Code of Civil Procedure (Amendment) Act III, 1963. They are directed against the judgment and decree dated the 13th of November 1962, passed by the District Judge, Jhelum, on appeal, dismissing the two suits brought by the respective appellants against the respondents for possession of the land in dispute by pre‑emption.

2. The brief facts are that the land in dispute was evacuee pro perty held by one Allah Ditta as a provisional permanent allottee under the West Pakistan Rehabilitation Settlement Scheme. He agreed to sell the same to respondents Nos. 1 and 2 for Rs. 7,

000. However, on his failure to complete the sales a decree for specific performance of the contract was passed against him. Eventually he transferred the land to the two respondents by means of a registered deed of sale on the 20th of May 1960.

3. This gave rise to the two suits, out of which these two appeals have arisen. Mst. Imam Hussain Bibi, appellant, brought her suit against the respondents in the civil Court on the 4th of May 1961 for possession of the land by pre‑emption on the ground that she was the mother of the vendor and has, therefore, a superior right to acquire it in preference to the vendees. The other suit was filed on the 19th of May 1961, by Abdur Rashid, appellant, for possession of the land by pre‑emption on the ground that he was a co‑owner fn the Khata in which the land in dispute was situated and has a preferential right to pre‑empt the sale. The respondent vendees resisted both these suits. They raised the objection that the land in dispute was evacuee property and the civil Courts have no jurisdiction to try and entertain these suits. At the trial the Court consolidated the two suits on the 22nd of November 1962. The learned civil Judge, Jhelum, was of the opinion that the jurisdiction of the civil Court was not barred and the suits to pre‑empt the sale were competent. At the same time the Court found that any transfer of this land to Mst. Imam Hussain Bibi, appellant, would offend against the provisions contained in Martial Law Regulation No. 64, and, as such, she could not acquire this land by pre‑emption. As a result of the discussion on the various issue, the trial Court, on the 23rd of February 1962, passed a decree in favour of Abdur Rashid, appellant, for possession of the land by pre‑emption on payment of Rs. 7,0‑0 and on his failure to do so in favour of Mst. Imam Hussain Bibi on payment of alike amount. There were two appeals, against the decree, one filed by Muhammad Latif and Fazal Dad, respondents No. 1 and 2; the vendees, on the main ground that the Court had no jurisdiction to entertain these suits and the other by Mst. Imam Hussain Bibi on the ground that she had a superior right to acquire the land in preference to her rival pre‑emptor. Both the appeals were disposed of together by the learned District Jugde, Jhelum on the 13th of November 1962. He was of the‑ opinion that the transaction of sale of the rights of the allottee in the evacuee land was not pre‑emptible under the law. In reversing the findings of the trial Court in this respect he accepted the appeals and dismissed both the suits. The lower appellate Court was also of the opinion that at any rate Mst. Imam Hussain Bibi, as the mother of the vendor, has a better right to acquire the land in preference to Abdur Rashid.

4. It is not disputed that at the relevant time, on the 20th of May 1960, Allah Ditta, the vendor was holding this land as an allottee on quasi‑permanent basis under the Rehabilitation Settle ment Scheme and it had not yet been permanently settled on him in accordance with the provisions of the Displaced Persons (Land Settlement) Act, 1958 Nonetheless, in the opinion of the learned Senior Civil Judge, the vendor was possessed of tangible rights of enjoyment in the land and the sale of those very valuable rights, permitted under the law, was pre‑emptible. But, on appeal the learned District Judge, in reversing this finding, held that the sale of his interest in the land by the vendor, who was merely a provisional permanent allottee, was not at all pre‑emptible under the law.

5. I have heard the learned counsel for the parties, and gone through the record. It was observed by a Full Bench of the High Court of West Pakistan in Babu All Muhammad v. Mahmood ul‑--Hassan (P L D 1968 Lah. 329) that there are three phases towards the rehabilita tion and settlement of a displaced person on evacuee property. The first phase starts with the temporary allotment, the second with the confirmation of the land and the last one ends with its permanent settlement on the allottee under the Displaced Persons (Land Settlement). Act, 1958. In the opinion of the Full Bench the sale of the rights of a confirmed allottee in the land was real property in the accepted sense and is pre‑emptible under sections 3 and 6 of the Pre‑emption Act, but that section 16 of the Pakistan (Administration of Evacuee Property) Act XII, 1957 was a com plete bar to such a suit for possession of the land in the civil Court as long as it remains evacuee property. However, by virtue of the West Pakistan Government Notification No. 1376‑RR/4‑R‑56, dated the 15th of April 1959, issued under subsection (2) of section 4 of the Displaced Persons (Land Settlement) Act, 1958, evacuee lands situated in the Province were acquired by the Government for the purpose of the Act. Subsection (3) of section 4 expressly provides that on the publication of this notification the right, title and interest of any evacuee or persons claiming through him in the land specified in the Notification shall, with effect from the date of such Publica tion, be extinguished and the land shall vest wholly or absolutely in the Central Government free from all encumbrances. In consequence these lands have altogether ceased to be evacuee property. (See Rahim Bakhsh v. Ch. Ahmad Bakhsh and others (P L D 1964 S C 189); Devanchand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi and others (P L D 1965 S C 356), A. R. Niazi, Advocate and others v. Pakistan through the Secretary, Settlement and Rehabilitation Department, Rawalpindi (P L D 1968 S C 119).

6. As such, after this acquisition of the land by the Central Government, section 16 of the Pakistan (Administration of Evacuee Property Act XII of 1957 was no longer applicable to the land in dispute after it has ceased to be evacuee property and is vested in the compensation pool administered under the Displaced Persons (Land Settlement) Act, 1958. In this connection in Sher Muhammad and others v. Asmat Ali (P L D 1968 Lah. 1171) a learned Single Judge of this Court was of the opinion that after the land has vested in the compensation pool, its sale by the quasi‑permanent allottee was pre‑emptible and .the suit by the pre‑emptor was not barred under the law and sections 6 and 25 of the (Displaced Persons (Land Settlement) Act, 1958. Similarly in another reported case in Mst. Musharraf Sultana v. Fazal Hussain (1968 Law Notes 153) it was held that such a suit was not barred under section 25 of the Displaced Persons (Land Settlement) Act. Also, relying on Sher Muhammad's case, another learned Single Judge in Allah Ditta v. Fateh Khan and others (P L D 1970 Lah. 10) held that section 6 of the Displaced Persons (Land Settlement) Act, did not constitute a bar to a pre‑emption suit in respect to the sale of land vested in the compensation pool under the Act. But this view was dissented from and overruled by a Division Bench of this Court in Rukkun‑ud‑Din v. Ghulam Mustafa (P L D 1970 Lah. 797) and the Court held that on a true interpretation of section 6 of the Displaced Persons (Land Settlement) Act, 1958 a suit for possession by pre‑emption of the land in the compensation pool was barred and the jurisdic tion of the civil Court was expressly excluded from enter taining it.

7. Recently in Saeed Muhammad and another v. Talib Hussain Shah (1970 S C M R 641) this controversy was set at rest by the Supreme Court and it was held that the sale by the allottee who was permanently settled on the land under section 15(3) of the Land Settlement Act, is not immune from pre‑emption and the plea that the land sold was included in the compensation pool and as such under section 6 of the Act was immune from being "proceeded against for any claim in any manner whatever in execution of any decree or order by any process or Court". . . was rejected. In this connection Devachand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi and others (P L D 1965 S C 356) brought to my notice, does not even remotely deal with the interpretation or this section and is, therefore, distinguishable.

8. After the land has entered the third and the last phas and is permanently settled on a displaced person and has gone out of the compensation pool, it falls within the domain of the ordinary law applicable to it. In this connection, a Full Bench of the West Pakistan High Court, Peshawar Bench, Taza Gut and another v. Said Gul (P L D 1967 Pesh. 157) has held that a sale of permanent pro prietary rights in the land settled on a displaced person is subject to right of pre‑emption. A similar view was expressed in another case in Abdul Ghafoor v. Muhammad Shafi (P L D 1966 Lah. 397). It was held that after the land was permanently settled in accordance with the law, it vests absolutely in persons permanently settled thereon and the sale of the land in their hands was pre‑emptible.

9. In this respect subsection (3) of section 15 of the Dis placed Persons (Land Settlement) Act, 1958 lays down that a dis placed person to whom any land has been allotted by the rehabilita tion authority before the commencement of that Act, under a Scheme as defined in clause (7) of section 2, or by a Settlement Authority under subsection (1), shall be settled permanenly on that land in such manner and on payment of such fees as may be prescribed by the Central Government. In this connection, Rule 7 of the Displaced Persons (Land Settlement) Rules, 1959, as amended, provides that a displaced person to whom any land has been allotted under a scheme shall, subject to the proviso to subsection (3) of section 15, be deemed to have been permanently settled on the land so allotted to him with effect from the 24th day of December 1951, or the date of final confirmation of allotment, whichever is later. At the same time sub‑rule (2) of rule 10 further lays down that settlement fee shall be levied at Re. 1 for every ten produce index units which shall be payable by the person settled or his successor‑in‑interest within a period of two years of the permanent settlement in four equal instalments. According to section 32(2) of the Act such a fee shall be first charge on the land and under section 8 of the Act is recoverable as arrears of land revenue. From all this it is evident that the payment of the settlement fee is not a condition precedent to the permanent settlement of the land under the law. According to section 16 of the Act, notwithstanding anything contained in an other other law for the time being in force, the land on which a displaced person is permanently settled shall vest absolutely in him. So that after the land has been permanently settled and vested absolutely on the displaced person, it no longer remains in the compensation pool after the purpose of the Act is achieved and the bar under section 6 is removed. So that after the final phase is reached such a suit for possession of the land by pre- emption is competent in the civil Court under the ordinary law.

10. I find that the sale of the land in dispute in this case was made on the 20th of May 1960, while it was still in the compensation pool. The suits for possession of the land by pre‑emption were barred by virtue of section 6 of the Displaced Persons (Land Settlement) Act, 1958.

11. For all these reasons of my own I find that there is no force in these two appeals. These are, therefore, dismissed. But under the circumstances, the parties are left to bear their own costs. K. B. A. Appeals dismissed.