1983 PLP 1570 (CLC)

2. The land in dispute; subject‑matter of this litigation, measuring 32 kanals and 7 marlas was sold to Muhammad Ilyas respondent‑vendee by one Abdul Karim, a Jamthu & Kashmir refugee who happened to be transferee of the suit land, for an ostensible sale price of Rs. 27,000 vide registered sale‑deed dated 5th September, 1969.

3. On 2nd September, 1970, Mst. Sardar Begum appellant who has since died and is represented by legal representatives filed a suit for possession of the land in dispute by pre‑emption on payment of Rs. 10,000 against Muhammad Ilyas. She pleaded that she being an owner in the estate and co‑owner in the Khata, Taraf and Patti had a better right of pre‑emption as against the vendee who was just a stranger. She further claimed that sale in question had in fact taken place for Rs. 10,000 but in order to defeat her right of pre‑emption, the sale price was bogusly recorded as Rs. 27,000 in the sale deed and that the market value of the land in dispute was also not more than Rs. 10,000.

4. Muhammad Ilyas the vendee contested the suit and contended that the sale in question being in regard to a land sold by an allottee hailing from Jammu & Kashmir was not pre‑emptible and that the suit land still being .an evacuee property; the civil Court had no jurisdiction. He further urged that the land in dispute was situate within the limits of Municipal Committee Wazirabad where there was no custom of pre emption and, therefore, no pre‑emption suit was competent. He also claimed that he has transferred the suit land by way of gift to his mother i, e. respondent No. 2.

5. The plaintiff‑appellant by way of amendment in the plaint implead ed Mst. Hamida Begum, the mother of Muhammad Ilyas as defendant No. 2 and as against her pleaded that she obtained the land in dispute by transfer during the pendency of the suit and, therefore, the transfer in her favour was ineffective qua the plaintiff's right. The vendee claimed that the sale had actually taken place for Rs. 27,000 which amount was fixed in good faith and actually paid. It was also urged by the vendee that the suit was not correctly valued for the purposes of court‑fee and jurisdiction.

6. Keeping in view the parties pleadings, the learned trial Court fram ed the following issues :‑ (1) Whether the suit land, is evacuee property and is not liable to pre emption. O. P. D. (2) Whether Civil Court has' ‑no jurisdiction to entertain this suit. O. P. D. (3) Whether suit land is. situated within Municipal Limits. If, so, with what effect ? O. P. D. (4) Whether defendant No. 1 is not a necessary party to the present suit. If so with what effect? O. P. D. (5) Whether Valuation of suit for purposes of court‑fee and jurisdiction is correct. If not what is correct valuation? O. P. D. (6) Whether the plaintiff has got superior right of pre‑emption over the suit land and the defendants? O. P. P. (7) Whether the sale price of Rs. 27;000 has been fixed in good faith or actually paid by the vendee.? O. P. D. (8) If issue No. 7 is not proved, what is market value of the land? ' O. P. P. (9) Whether the suit land, was agricultural one at the time of its sale? O. P. P. (10) If issue No. 9' is not proved, whether custom of pre‑emption pre vailed at the locality in which the suit property is situated O. P. P. (11) Relief.

7. After recording parties evidence, the learned Civil Judge ride his judgment and decree dated 5th February, 1975 held that although the property was liable to be pre‑empted but as Abdul Karim who had sold this land in favour of Muhammad Ilyas vendee being a Jammu & Kashmir refugee was not a permanent transferee, therefore, the suit was barred. The learned Additional District Judge vide his impugned judgment dated 2‑Oth February, 1979 upheld the finding of the learned Civil Judge on issue No.

2. On issues Nos. 3, 9 and 10 the learned Civil Judge found that since the land was situate within the limits of Municipal Committee, Wazirabad, therefore, the suit was not maintainable. He also held that the land was not agricultural one and that the existence of custom of pro‑emption in the locality con cerned was not proved. The learned Additional District Judge also held that the land in dispute was situate within the municipal limits and. the existence of custom of pre‑emption was not proved. Regarding appellant's claim of possessing the better right of pre‑emption, the learned lower Courts found that the vendee had also become the owner of some land in the estate by purchasing three Marlas of land on 19th July, 1979.

8. In view of the above findings, the learned Civil Judge, Wazirabad vide his judgment and decree dated. 5th February 1975 dismissed the plaintiff‑appellant's suit for possession of the land in dispute by pre‑emption and the appeal taken by her before the learned Additional District Judge was also dismissed by the latter on 20th February, 1979.

9. It is an established proposition of law that sale of land which has been permanently transferred under the Displaced Persons (Land Settlement Act) 1958 is pre‑emptible before a Civil Court of competent jurisdiction. It has been so held in Baj Din and others v. Din Muhammad and 2 others (P L D 1972 Lah. 567). In Pirla etc. v. Noora etc. (P L D 1976 Lah. 6) it was held that allotment of evacuee land in favour of vendor having been confirmed, question of jurisdiction of Civil Court was not tenable. In Noor Muhammad and 4 others v. Muhammad Yusuf Khan and 2 others (1977 S C M R 283) it was ruled that sale of an evacuee property which was permanently transferred and confirmed in favour of allottee, was pre‑emptible.

10. It has been urged on behalf of the respondent that in the Circum stances of the instant case, Abdul Karim, the vendor, admittedly happened to be a Jammu & Kashmir refugee and, therefore, transfer of the suit land in his favour could not be deemed to be a permanent transfer under the Displaced Persons (Land Settlement) Act and sale by him was accordingly not pre‑emptible. This contention appears to be without substance, It transpires from the contents of Jamabandi entries of the suit land for the years 1963‑64 that through RL‑II No. 46, the land was transferred and confirmed in favour of Abdul Karim. It transpires from the statement of Mr. Muhammad Ashraf Advocate, counsel for the defendant recorded on 10th April, 1974 by the trial Court that he produced Exh, D‑1, copy of RL‑II entries in regard to the transfer of land. In this case the original records have been lost and re‑constructed records have been provided to this Court by the trial Court. Most of the documents including Exh. D‑I are not forthcoming from the re‑constructed records. One fact, however, is established that about the transfer of the suit land in C favour of Abdul Karim, the vendor, entries were duly made in RL‑

11. It is not disputed that only in regard to permanent transfer, entries are made in RL‑II. In Civil Appeal No. 80 of 1969 decided by the Supreme Court of Pakistan reported in P L D 1973 S C 347, it was pointed out that the original allottees were displaced persons from Jammu & Kashmir, they held the land only temporarily till their repatriation without any right of aliena tion. This argument was repelled. It was observed that evacuee agricul tural land was permanently allotted to claimants from Jammu & Kashmir and such allottees had the right of alienation of land prior to their repatria tion to the occupied part of Jammu & Kashmir and this was only subject to liability that on repatriation such transferees would pay ascertained price to the Central Government. It was thus held that under the permanent scheme the alienation could validly be made by the transferees haling from Jammu & Kashmir and such a sale would be pre‑empted. In the circum stances of the present case also the land in dispute as observed earlier was permanently transferred to Abdul Karim vendor. While appearing as DW‑3 the said Abdul Karim has stated that his claim was duly verified by the authorities at Muzaffarabad and against that claim he obtained the allotment of the suit land. In the light of the above discussion it is concluded that the sale of the suit land by Abdul Karim a permanent transferee to Muhammad Ilyas respondent was pre‑emptible and the Civil Court could competently try such a pre‑emption suit. Thus the findings recorded by both the learned lower Courts on issues Nos 1 and 2 are reversed.

10. The other ground on which the appellant has been non‑suited is that the suit land was located within the Municipal Limits, Wazirabad and that the existence of the custom of pre‑emption was not proved in the locality in which the suit land was situate. These findings have been record ed under issues Nos. 3, 9 and

10. It transpires from Exh. P 1, copy of Jamabandi pertaining to suit land for the year 1963‑64 that but for 5 Marlas the entire land in dispute was an agricultural land at the time of sale and it was assessed to land revenue. Muhammad Azeem Patwari appearing as P. W‑1 stated that although the suit land was situate within the limits of Municipal Committee Wazirabad but it was at a distance of one furlong from the Abadi of the town and no new construction was made over it. Similarly, Muhammad Sharif Patwari has stated that the suit land was an agricultural land with the exception of Khasra No. 1098 which we recorded as Thakur Dawara. Muhammad Ilyas defendant himself while appearing as DW‑4 admitted that he used to pay land revenue in respect of the suit land. It is thus established from the aforementioned oral as well as documentary evidence that the land in dispute at the time of sale was an agricultural land which was assessed to land revenue. In Hafiz Hussain Muhammad and 17 others v. Abdul Hameed and 2 others (P L D 1982 S C 159) it has been held that where there was no evidence or circumstances to justify that the property in dispute had lost its character as agricultural land it was subject to right of pre‑emption. In Rahim Baksh v. Wahid Bakhsh (P L D 1979 Lah. 544) it has been ruled by this Court that sale of agricultural land regardless of fact whether such land would. continue to be agricultural land or would be built upon. for residential purposes, was pre‑emptible. In Muhammad Akram v. Karam Ilahi (1981 C L C 589) while interpreting the provisions of sections 3, 6 and 7 of the Punjab Pre‑emption Act it was held that agricultural land lying within the limits of a town is not urban immovable property, and, therefore, it could be pre‑empted under section 6 of the Punjab Pre‑emption Act and a person claiming right of pre emption in regard to such land will not have to prove custom as required by section 7 of the Pre‑emption Act. The basic authority on the point is Jiwa v. Boota and others (26 P R 1912).

11. It is thus concluded that the land in dispute being essentially and agricultural land at the time of its sale in favour of the defendant‑vendee it could validly the pre‑empted under section 6 of the Pre‑emption Act and existence of custom of pre‑emption in the locality in which this land is situate was not required to be proved no matter the land is located within the municipal limits. Thus the findings of the learned Courts below on issues Nos. 3, 9 and 10 are also reversed.

12. It has also been held by the learned Courts below that the plaintiff pre‑emptor (appellant) had no better right of pre‑emption against the vendee because she claimed her superior right of pre‑emption on the basis of being an owner in the estate but the vendee also, happened to be an owner in the estate as he prior to the sale in question had purchased three Marlas of land in that estate which sale was unsuccessfully pre‑empted by the appellant. In regard to this aspect of the matter the appellant has produced Exh. p. 8 copy of the judgment of the Civil Court Wazirabad dated 5th April. 1973. It transpires from the contents of this judgment that appellant's suit for pre emption failed on the ground that three Marlas of land purchased by the respondent was held to be non‑agricultural land at the time of sale and existence of custom of pre‑emption in the locality where that land was situate was not proved. In Salehon Muhammad and others v. Shera and others (1977 S C M R 297) it was ruled that the object of the Pre‑emption Act is to exclude non‑proprietors from entering proprietary body of an estate and if owners in houses of village Abadi are held to be owners in the estate for the purposes of pre‑emption then the whole object of the Pre‑emption Act would be defeated. In Jawala Singh v. Tara Singh and others (A I R 1920 Lah. 94(2)) it was held that word "owner in the estate in section 15 (c) of the Pre‑emption Act referred to the proprietary body of the village and a person who is owner of a small plot not assessed to land revenue, not cultivated and destined to be a building site could not be regarded as owner in the estate. Similarly in Shah Muhammad v. Mst. Piyari and another (A I R 1936 Lah. 202) it was ruled that the ex pression of the owner of the estate used in section 15 of the Pre‑emption Act imported ownership of agricultural land only and as soon as the area of land which was admittedly agricultural before that got converted into the build ing site it at once ceased to be the part of the estate and its owner is depriv ed of all the privileges which he otherwise could enjoy under the law. In the light of the legal position as enunciated above it is found that on account of 3 Marlas of land which Muhammad Ilyas the vendee allegedly purchased before the institution of the suit giving rise to this appeal he could not improve his status inasmuch as the said 3 Marlas being non‑agricultural land by purchasing it he did not become the owner in the estate. In this view of the matter the pre‑emptor appellant who admittedly was owner of agricul tural land in the estate prior to sate in question has a better right of pre emption as against the vendee. Thus the finding of the learned Courts below on issue No. 6 is also set aside.

13. No argument has been addressed by the learned counsel for the appellant on the question of sale price and he has expressed his willingness to pay Rs. 27,000 as the sale price which has been shown in the sale deed.

14. The learned counsel for respondents has raised two preliminary objections to the effect : (I) that this regular second appeal is incompetent as the value of the subject‑matter of the suit did not exceed Rs. 2.000 ; and (2) that the memo of appeal in this Court is understamped and it was so understamped even before the first appellate Court.

15. Regarding the first objection: the learned counsel for the respondents has placed reliance on section 102 of the Code of Civil Procedure which provides that no second appeal shall lie in a suit when the amount or value of the subject‑matter in the original suit does not exceed 2.90t) rupee. By a subsequent amendment, of course. "50" has been substituted for the word "2." As a matter of fact section 102 of the Code of Civil Procedure has been amended by the Law Reforms Ordinance, 1972 (Ordinance XII of 1972). In the old section the value of the subject‑matter of the suit in which a second appeal was competent was Rs. 500 only and by the Law Reforms Ordinance. 1972 this value was increased from Rs. 500 to Rs. 2,

000. The suit giving rise to the present R.S.A. was instituted on 2nd September. 1970 i.e. before the Law Reforms Ordinance, 1972 came into force. It is an accepted principle of law that appeal is not merely a matter of procedure but a substantive vested right and is to be considered as a continuation of a suit. In Garika Pati Veeraya v. N. Subbiah Choudhury and others (P L D 1957 S C (Ind 448)) it was held that the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings." The right of appeal is not a mere matter of procedure but is a substantial right. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced. This principle has been followed in Juma Khan v. Mst. Gul Ferosha (P L D 1972 pesh. 1) and in F. A. Khan v. The Government of Pakistan (P L D 1964 S C 520). It would thus follow that since the suit out of which the present appeal arises was instituted on 2nd September, 1970 and at that time a second appeal was competent where the value of the suit was more than Rs. 500, therefore, the present appeal is competent as the value of the suit at the time of institution was assessed as Rs. 571.50.

16. About the second objection relating to the court‑fee it is urged that proper court‑fee has not been paid on the memorandum of appeal. Reliance has been placed on Akbar Ali and 4 others v. Ihsan Ilahi (P L D 1980 Lah. 145) wherein it has been held that appeal must be valued according to the provisions of law in operation at time of its presentation and that original value paid on plaint under repealed enactment is to be disregarded. There can be no dispute about the proposition of law as laid down in the aforementioned authority. The suit giving rise to the present appeal was valued for the purpose of court‑fee at 10 times the annual land revenue of the suit land which was permanently assessed to land‑revenue. After the amendment in the court fees brought about by the Finance Act, 1973, the court‑fee was to be payable on the value of the suit land which was to be assessed at 15 times of the net profit accruing from that land. On the memo, of appeal the court‑fee has been paid at 15 times of the net profit. There is nothing on the record to suggest that the value of the land keeping in view the 15 times of the net profit has been wrongly assessed in this appeal. In this view of the matter. It is concluded that there is no force in the objections of preliminary nature raised by the learned counsel for the respondents.

17. In the light of the foregoing conclusions the appeal is accepted, the judgments and decrees passed by the learned lower Courts are set aside and the suit of the appellant for possession of land in dispute by pre emption is decreed on payment of Rs. 27,000 which amount less the sum already deposited by her as 1 /5th of the sale price shall be deposited in the trial Court on or before 31st July 1983 failing which the suit shall stand dismissed. Since this litigation involved complicated questions of law and fact, the parties are left to bear their own costs throughout M. A. K. Appeal accepted.