P L D 1982 Lahore 187__ (PLP)

It was on 5th January, 1977, that one Hukam Din sold land measur ing 4 kanals and 9 marlas in favour of the petitioner, Lal Din. The sale was pre‑empted by the respondent, Mst. Kariman Bibi, alleging that she was an heir of the vendor. The suit was resisted by the appellant, who was defendant therein, on various grounds but without success. It was, therefore, decreed. The judgment and decree of the trial Court were challenged by the appellant by means of an appeal but in vain. He has, therefore, come up in second appeal to this Court.

2. It was pointed out by learned counsel for the appellant that during the pendency of the suit, on 16th January, 1977, the appellant made an application for amendment of written statement but the same was dismissed by the Civil Judge who was seized of the suit at that time. In that appli cation, it was urged by the appellant that the respondent (pre‑emptor) was not owner of the estate and since the land sought to be acquired by him through the suit for pre‑emption was less than a subsistence holding, her suit was hit by paragraph 24 of the Land Reforms Regulation, 1972, hereinafter referred to as the said Regulation. Provisions of the said regulation were pressed into service by the appellant during the course of hearing of first appeal also. The view expressed by the Additional District Judge, who dismissed the appeal, however, was that those provisions did not come in the way of the pre‑emption suit brought by the respondent. On the other band, it was noted by the learned Additional District Judge that clause (d) of sub‑paragraph (6) of paragraph 24 of the said Regulation saved the pre emption decree obtained by the respondent.

3. Assailing the view taken by the learned Additional District Judge, it was contended by learned counsel for the appellant that since the decree passed in favour of the respondent involved an alienation which was in con travention of the provisions of sub‑paragraph (5) of paragraph 24 of the said Regulation the said decree was void and of no legal effect. As for the provisions of clause (d) of sub‑paragraph (6) of paragraph 24 of the said Regulation, which were relied upon by the learned Additional District Judge, it was submitted by the learned counsel that said clause simply saved the pre‑emption decrees which were passed before the insertion of the said sub paragraph by means of the Law Reforms (Amendment) Act, 1976, herein after referred to as the 1976 Act. Elaborating his arguments, it was added by the learned counsel that as the respondent was not holder of the pre emption decree at the time of the inclusion of sub‑par4grapb (6) in para graph 24, she could not take the benefit of that paragraph. He cited Rahim Bakhsh alias Rahim v. Gul Muhammad and another (1) and Allah Bachaya v. Sher Muhammad and another (2) to support his arguments.

4. In reply, it was submitted by learned counsel for the respondent that clause (d), referred to above, applied not only to pre‑emption decrees passed before the coming into force of the 1976 Act but also to the decrees granted thereafter. According to him, therefore, the conclusion reached by the learned Additional District Judge was unexceptionable.

5. The precedent cases of Rahim Bakhsh and Allah Bachaya, which were relied upon by learned counsel for the appellant, involved interpreta tion of the provisions of sub-paragraph (4) of paragraph 25 of the Martial Law Regulation No. 64 in which it was laid down that any alienation made in contravention of the provisions of paragraph 25 shall be void. Similar provisions had been made in sub‑paragraph (5) of paragraph 24 of the said Regulation (Land Reforms Regulation, 1972) but thereafter it was provided in sub‑paragraph (6) thereof that nothing in paragraph 24 shall apply to the holder of pre‑emption decree. Thus, clause (d) of sub‑paragraph (6), which exempts the holder of a pre‑emption decree from the operation of para graph 24, including paragraph (5) thereof, is an exception to what has been provided in sub‑paragraph (5). Therefore, the cases of Rahim Bakhsh and Allah Bachaya do not advance the plea raised by learned counsel for the appellant. (1) P L D 1968 Lah. 907 (2) Law Notes 1978 S C 752

6. The main question requiring determination irk the instant case is whether clause (d) of sub‑paragraph (6) of paragraph 24 of the said Regula tion simply saves the pre‑emption decrees granted before the coming into force of the 1976 Act or it would also enure for the pre‑emption decrees passed thereafter. If the intention of the makers of law had been to restrict the application of that clause to the decrees passed before the 1976 Act they would have made a specific provision in this behalf but since that was not done, it would follow that the said clause would apply to all pre‑emption decrees regardless of the fact that they were passed before or after the enforce ment of the 1976 Act. To my mind, clause (d) (ibld) has the effect of saving the law of pre‑emption from the operation of the said Regulation. I am, therefore, unable to agree with learned counsel for the appellant that since the decree obtained by the respondent was granted after coming into force of the 1976 Act, the provisions of clause (d) cannot be made use of by the respondent.

7. There is no merit in this appeal. It is dismissed' with no order as to costs. s. Q. Appeal dismissed.