1979 PLP 141 (SCMR)

MUHAMMAD AKRAM, J.‑The suit of the petitioners herein against the respondent for pre‑emption was decreed by the trial Court. The decree was affirmed on appeal of the respondent rejected by the Additional District Judge. But it was reversed on second appeal and thereby the suit of the petitioners was dismissed by a learned Judge of the Lahore High Court at Lahore on the 2nd of July 1978. This is a petition for special leave to appeal from the judgment and decree thus passed in the accond appeal by the High Court. It appears that on the 26th of August 1965, one Dalip Singh alias Din Muhammad sold the land in dispute measuring 90 kanals 19 marlas situated in village Mallo Mahe, Tehsil Daska, District Sialkot to Abdullah Khan respondent for Rs. 15,000 by a registered deed of sale. On this the petitioners plaintiffs brought their suit for possession of the land by pre‑emption, inter alia, on the ground that they were owners in the estate and Patti in which the land in dispute was situated and had therefore, a preferential right to acquire the same as compared to the defendant. On the 8th of February 1969, the learned Civil Judge First Class Daska decreed the suit of the plaintiffs‑petitioners. On issue No. 2 he was satisfied from the statement of Muhammad Yusuf Patwari (D. W. 3) that the plaintiffs were the owners of agricultural land in Mauza Sattokey. But, before him, the learned counsel for the defendant‑vendee contended that he too was also an owner of the agricultural land in village Sattokey like the plaintiffs who did not have any superior right to pre‑empt the land in preference to him. In this connection reliance was placed on the statement of Muhammad Yusuf Patwari D. W. 3 who deposed that the defendant had also purchased some land from one Ghulam Rasul, a displaced person through Mutation No. 1264 attested on the 9th of July 1963. But in the opinion of the trial Court thereby the vendee did not acquire the full proprietary rights in the land thus purchased by him and could not be called as the "owner of the estate" in Mauza Sattokey. The Court therefore, decreed the suit of the plaintiffs petitioners against the defendant‑respondent. The decree was substantially affirmed on appeal of the respondent which was dismissed by the Additional District Judge Sialkot on the 21st of January 1970. But the learned Judge of the High Court in second appeal reversed the finding of the two Courts on issue No.

2. He observed that the counsel for the plaintiffs petitioners had argued before him firstly that the property in dispute was originally situated in village Sattokey and that the vendee -respondent was an old owner of the property in tillage Mallo Mahe, a different estate. He further argued that the copy of the mutation No. 1264 attested on the 9th of July 1963 and the relevant Jamabandi respondaht that Ghulam Rasul allottee was merely a non occupancy tenant of the land situated in village Sattokey and had sold his rights to the respondent before this sale and thereby he was not constituted as an owner with full proprietary rights in the agricultural land situated in the village. The Court relied on the statement of Muhammad Yusuf Patwari (D. W 3) to the effect that after the consolidation the two villages Sattokey and Malle Mahe were amalgamated and had become one village. By Mutation No. 1264 attested on the 9th of July 1963, the defendant respondent had purchased the right in the agricultural land in village Sattokey from Ghulam Rasul an allottee and that according to the Jamabandi pertaining to the year 1959‑60 the plaintiffs‑petitioners were co‑owners in village Sattokey. From this evidence which was not rebutted the learned Judge in Chambers held that originally there were two villages known as. Sattokey and Mallo Mahe and that the plaintiffs‑petitioners were co‑owners in village Sattokey. Similarly, the defendant respondent had also purchased property in village Sattokey from Ghulam Rasul by Mutation No. 1264. It was also established from the sale deed in suit (Exh. D: 1) and the plaint that the property in dispute at the time was situated in village Mallo Mahe in which admittedly the defendant‑respondent was a co‑owner. Even otherwise, both the parties had also their land in village Sattokey which was at one time a separate village but had lost its identity after having been amalgamated with village Mallo Mahe. Ghulam Rasul as stated by the Patwari and also as is evident from Exh. D. 3 was holding the allotment rights under the Rehabilitation and Settlement Scheme in the estate and by virtue of the operation of section 16 of the Displaced Persons (Land Settlement) Act 1958 (as amended) the defendant had become owner of that portion of the property thus purchased by him from Ghulam Rasul. In these circumstances in the opinion of the learned Single Judge in either case whether the property in dispute be treated in village Mallo Mahe or as originally situated in village Sattokey, the plaintiffs‑petitioners had no better right of pre‑emption as compared to vendee‑defendant and their suit was consequently dismissed on this finding under issue No.

2. In this Court before us it was admitted by the learned counsel for the petitioners that in the sale deed as well as in the plaint the property in suit was described as situated in the estate of Mallo Mahe. D. W. 3 Muhammad Yusuf Patwari had deposed that the plaintiffs‑petitioners were owners in the two villages. He also stated that Abdullah defendant‑respondent was the purchaser of some land from Ghulam Rasul allottee in village Sattokey. Before us however, the learned counsel tried to build up an argument distinguishing between what he called a village (Mauza) and an estate (Mahal) for the purpose of section 15 (thirdly) of the Punjab Pre‑emption Act and contended that the so‑called amalgamation of the two villages for the purpose of consolidation of holdings did not necessarily connote that thereby the defendant‑respondent was constituted as an "owner of the estate" in which the land in dispute was situated. He asserted that this distinction is fully evident from a closer reading of the various provisions in section 15 of the Act which deals with the right of pre‑emption in respect of "village" immovable property and in respect of agricultural land in the owners of the "estate". In expanding on his contention he pointed out that in the corresponding provisions of the Punjab Laws Act the right of pre‑emption was vested in the "land holders of the village". The term was however, replaced in the Punjab Pre‑emption Act 1905 so as to confer the right of pre‑emption "on the owners of the estate" which has since been judicially interpreted to mean Khewatdar or the proprietary body in the estate who are responsible for the payment of the land revenue of the estate. After hearing the learned counsel for the petitioners we find that all these contentions advanced before us are merely hypothetical. In fact at no stage in the proceedings before the trial Court as well as in appeal before the Additional District Judge this distinction was even attempted to be made on behalf of the plaintiffs‑petitioners. It was only at a later stage before the High Court that a belated attempt was made to somehow wriggle out of the situation by contending that the so called merger of the two villages Sattokey and Mallo Mahe was by no means complete for the purpose of the pre‑emption and revenue laws. In section 3(1) of the Punjab Land Revenue Act, 1887, the term "estate" was defined to mean an area (a) for which a separate record‑of‑rights has been made ; or (b) which has been separately assessed to land‑revenue ; or (c) which the Board of Revenue may, by general rule or special order, declare to be an estate. In the instant case, D. W. 3 Muhammad Yusuf Patwari had deposed that after consolidation the two villages Sattokey and Malio Mahe were amalgamated and became only one village. Admittedly in the sale deed in suit and in the plaint the land in dispute was shown as situated in village Mallo Mahe and not as originally situated in village Sattokey. There in nothing on this record to lead us to the conclusion that contrary to the statement of the Patwari, the amalgamation of the two villages, as deposed to by him, was not complete and that the two estates were continued to be treated separately from each other for the purpose of the Land Revenue Act. In fact for the first time before this Court a belated attempt was made to give a new complexion to this case without there being any evidence in support of the contention advanced on behalf of the petitioners, We, therefore, see no force in this petition which is hereby dismissed, Petition dismissed.