P L D 1954 Peshawar 99 (PLP)

MUHAMMAD SHAFI, J.‑By a registered sale‑deed dated 24th January 1952, Kazi Muhammad Ghayas sold away the equity of redemption of 11 Kanals 6 Marlas of land, bearing Khasra No. 2237, situated in Charsadda, for Rs. 3500, including a sum of Rs. 1900 which was payable on account of the mortgage to one Mst. Safa Jan. in favour of Muhammad Akbar Khan, son of Abdullah Khan of Charsadda. Zaidullah brought a suit for possession by pre‑emption of this land on payment of Rs. 1207, claiming that he had a superior right of pre‑emption on account of the following facts :‑ (1) That one and same water‑channel irrigated his field sold as well as the field, and also that the same thoroughfare leads to both these properties, and (2) that these lands were adjacent to each other. The suit was strenuously resisted by Muhammad Akbar Khan, who denied the plaintiff's allegation that he had a superior right of pre‑emption, or that he was entitled to pre‑empt the property on payment of Rs. 1207. The following issues were framed in the case :- (1) Whether the plaintiff has got a superior right of pre‑emption? (2) Was the sum of Rs. 1600 fixed in good faith or paid as the price of the suit‑land? (3) What is the market value? (4) Relief. Muhammad Khurshid Khan Sub‑Judge 2nd Class, Charsadda, decided this cafe on 25th August 1952, He seems to leave field on issue No. 1 that the plaintiff did not have any land adjacent to the land in suit, but that the same water‑channel irrigated both the lands, and the plaintiff, therefore, had a superior right pre‑emption under the North‑West Frontier Province Pre‑emption Act XIV of 1950. On issue No. 2 he found that the sum of Rs. 1207 only was paid as the price of the equity of redemption. On issue No. 3 he came to the conclusion that the market value of the property in suit was Rs. 1903‑12‑

2. As a result of his above findings he granted plaintiff a decree for equity of redemption of the suit‑land on payment of Rs. 1207 against the vendee with costs. On appeal this decree was upheld by the Additional Judge Peshawar, by his order dated 3rd January 1953. Muhammad Akbar Khan, the vendee, has come up in revision to this Court. The principal question, which requires to be decided is whether by reason of the fact that the land in suit and the plaintiff's land are irrigated by the same water-channel the plaintiff can be said to have a right of pre‑emption in respect of the land sold. It may be pointed out here that the statement of fact made by the Additional judge in his judgment that the local Patwari had stated that the common Lakhti began from the land belonging to the plaintiff and passed through field No. 2243, in which the plaintiff was an owner, is not correct. The Patwari Abdul Jabbar who was produced as plaintiff's witness No. 1, nowhere stated that the common water‑channel either started from the plaintiff's land or passed through it. A plan, however, has been placed upon the record, but it does not at all show that the water‑channel which irrigates the suit‑land passes through the plaintiff's field. The mere fact that certain red lines are put in between Khasra No. 2244 and 2243, without their clarification by the person who prepared the plan, cannot lead one to any definite conclusion. It was for the plaintiff to have proved on this record specifically and most definitely that the water‑channel which irrigated the land in suit passed through his land. In fact he never alleged in the plaint, which he ought to have done; that the water channel which passed through his land irrigated the suit land. The only thing, then, which has been established upon this record and of which notice can be taken is that the plaintiff's land is irrigated by the same water‑channel, which irrigates the land in suit, and this gives rise to the disputed question mentioned in the earlier part of this judgment. Whatever the origin of the pre‑emption law in the other countries of the world may be, in Indo‑Pakistan Sub‑Contin ent, it was inspired by the Muslims, who recognized it as a matter of expediency in order to avoid as much as it was possible the inconvenience, vexation and disputes, on account of the introduction of strangers amongst the co‑sharers and neigh bours. In the British time in some parts of this Sub‑Continent the law of Pre‑emption was based on Muslim Law, in others on Custom, and yet in some on the law given by the legislature. In the North‑West Frontier Province it was introduced perhaps for the first time by the law and Justice Regulation No. VII of 1901. It underwent tremendous changes subsequently by different Regulations passed by the Central Government of India from time to time, until the Punjab Pre‑emption Act I of 1913 was passed and it was made applicable to the North‑West Frontier Province after having teen slightly modified according to the peculiar conditions prevailing in its urban and rural areas. It was very much different from the Muslim Law of Pre‑emption. According to this law the persons who had the right of pre‑emption in respect of agricultural land and village immovable property were different from those who had such rights in the urban immovable property. These persons were mentioned in detail and in order of their rights in sections 15 and 16 of the Act. It will be noticed that persons who owned immovable property contiguous to the property sold, and those who were the owners of the dominant property where the sale was of the servant property and vice versa, had the right of pre‑emption in respect of the sale of the immovable property in the Urban area, but had no such right in respect of the agricultural land and village immovable property. There was a great sense in this distinction, because in villages in the North‑West Frontier Province, there is a property known as the village Shamilat, which belongs to the villagers, as distinguished from belonging to the State. The water channels, the thoroughfares, the pastures and several other properties practically in all villages in the North‑West, Frontier Province are the village Shamilat, and belong to the proprietary body of that village, while this is not the case in big towns of the North‑West Frontier Province, where the thoroughfares, the streets, the roads and the drains etc. belong either to the Municipality or to the Government. The distinction between the right of pre‑emption in respect of the two properties becomes very obvious, when one considers that is a certain property in a village is sold it must pass by either a thoroughfare or a water‑channel, which belongs to the entire proprietary body of the village, with the result that all this proprietary body which may consist of thousands and thousands of people will prima facie have a right of pre‑emp tion in respect of the property sold, and so the prospective vendor shall have to follow the procedure laid down in section 19 and 20 of the Punjab Pre‑emption Act with regard to all of them. This will have the effect of not only bringing the Law of Pre‑emption into ridicule but will also defeat the very purpose for which the Pre‑emption Law has been Introduced into this country. A person holding a very small share in a water‑channel passing by the property sold, and having absolutely no other connection with it might well maintain a suit for pre‑emption and succeed in it. This on the face of it looks extremely unfair and inequitable. After the advent of Pakistan there was a general cry that the laws in the country should be framed in conformity with the Muslim laws. The law officers of the North‑West Frontier Province perhaps led away by this cry framed a Bill in 1950, which a mended the law of Pre‑emption in the North‑West Frontier Provision and gave a right of pre-emption to the following persons on respect of both agricultural land village and urban immovable property instead of the persons mentioned in section 15 and 16 of the previous Act:- Firstly to the co-shares in such land or property if any; secondly, to a participator yin amenities, appendages, or easement, such as a right of way and discharge of water, thirdly, to owners of contiguous property, if any ; fourthly, to a landlord when the sale is by any occupancy tenant of his right in tenancy." So far as secondly is concerned, the dictionary meaning of the word amenities in Chamber's 20th Century Dictionary is "pleasantness as regards situation, climate, manners or disposition." The meaning of this word given in Webster's New International Dictionary is, "quality or state of being pleasant or agreeable as in respect of situation, climate, manners or disposition; pleasantness, civility, suavity, gentleness." Now, a participator in quality or state of being pleasant or agreeable as in respect of situation, climate, manners or disposition ;" or a participator in "pleasantness, civility, suavity and gentleness" carries absolutely no sense. Similarly, a participator in easement has no meaning at all. An easement is a right which the owner or occupier of certain property possesses as such for the beneficial enjoyment of that property to do and continue to do something or to prevent and continue to prevent something being done in or upon or in respect of certain other property not his own. There are two properties in easement, the dominant heritage and the servient heritage. The owner of the former is the dominant owner and of the latter the servient owner. A participator in the right which a dominant owner possesses as such does not make any sense at all. Again, the right of pre‑emption in respect of the agricultural land and village immovable property was given to the owners of the contiguous property, without realizing that there existed a property in the village called Shamilat and giving a right of pre‑emption to the owner of the contiguous property might lead the Law of Pre‑emption to absurdity. It appears that the framers of this Bill wanted to copy the Muslim Law, and give a right of pre‑emption to Shaft sharik (a co‑sharer in the property), Shaft khalit and Shaft jar. Shafi khalit was translated by some jurists as a participator in the immunities (as distinguished from amenities) and appendages of the property. They, however, copied these words but they did so wrongly and also added the "participator in easement" of their own accord, without realizing that it carried no sense. This Bill was moved in the North‑West Frontier Province Legislative Assembly on the 4th of March, 1950, by Hon'ble Mian Jaffar Shah, the Minister for Education and Revenue. There were 25 members besides the Hon'ble the Speaker, who himself is a Bar‑at‑Law, and the Advocate General, present in the Session, out of whom some were the most eminent members of‑the Bar and the others presumably literate. Some objections were raised mainly by Sayed Qaim Shah to some provisions of this Bill, but no objection was raised to section 12 of the Bill, which gave the right of pre-emption to the person enumerated above. No one took the trouble of taking a dictionary in hand and try to find out if section 12 as it stood should be passed or not. The legislators and officers of law are entrusted with very important functions of framing the laws for the benefit and good of the people, and if they do so without paying due care and attention to the law, which they propose to give to the people, then all that can be said is that it is extremely unfortunate and regrettable. The Bill, including section 12 as it stood, was put to the House and passed unanimously. This flaw was noticed by this Court in Civil Revision No. 132 of 1953 (Abdul Majid v Gulstan anal others) which came up for preliminary hearing on 16th January 1054. Pointing out the flaw the revision petition was referred to the Bench. It was then that the law officers as well as the Government North‑West Frontier Province woke up and amended section 12 of the Pre‑emption Act by an Ordinance No. 1 of 1954, promulgated by the Governor North‑West Frontier Province on 22nd April 1954. The amending section reads as under :‑ Substitute the following for clause secondly of section 12 of the North‑West Frontier Province Pre‑emption Act 1950 (XIV of 1950), (hereinafter referred to as "the Act". Secondly, in a participator in immunities and appendages such as a right of way or a right to discharge water". The Ordinance was given a retrospective effect on and from the 15th of March, 1950. So as the law now stands it has to be seen whether a person whose land is irrigated by the same water channel, which irrigates the land sold, can be said to be a participator in immunities and appendages. The Pre‑emption Law, as has been held in several authorities before is very technical and it must be construed very strictly, because it interferes with the freedom of the people to enter into any contract in respect of a certain property. It cannot be enlarged or extended by intendment, implication or by an equitable consideration. What the words "immunities and appendages" mean has been clarified by the legislature itself by including illustration in the section itself namely "such as a right of way or a right to discharge water". The section should be read in the light of these illustrations. and if that is done then the mere fact that a certain water‑channel, which might run miles 'the miles, irrigates the two lands, the one belonging to the plaintiff and the other land sold, cannot possibly give the plaintiff a superior right of pre‑emption. To give such a right to the plaintiff would be against the very object and the spirit of the law of Pre‑emption, which is enacted as a matter of expediency, and due to a desire to prevent the introduction of a stranger among co‑sharers and neighbours likely to cause inconvenience, vexation and disputes. The plaintiff in this case, who only claims that his land is irrigated by the same water‑channel, which irrigates the land sold, must therefore, fail. I consequently accept this revision petition, set aside the judgments and decrees of the two Courts below, and dismiss the plaintiff's suit. In view, however, of the difficult question involved in the case, and the uncertainty of law created by the Legislature of the North‑West Frontier Province. I leave the parties to bear their own costs throughout. Order announced. A. H. Petition accepted.