1983 CLC1961 (PLP)

Dates of hearing : 24th and 25th October, 1982. On 28th January, 1973 the respondents purchased 16 kanals and 16 marlas of land in Chak No. 53/G. B. in Tehsil Jaranwala. On 19th January, 1974 the appellant brought a suit to pre‑empt the sale on the ground that he was a tenant therein and as such he had the. prior right to acquire the land. Initially the trial Court decreed the suit but on appeal by the respondents the District Judge remanded the suit for a fresh trial after holding that the trial Court had not recorded clear findings on the various issues. After remand the trial Court dismissed the suit on the finding that the right of pre‑emption did not exist in the district where the suit land was situate on the day when the impugned sale was made. The appellant preferred an appeal before the District Judge but without any success. He has now come in second appeal to this Court.

2. It is not in dispute that on 28th February, 1944 the Provincial Government issued a notification under section 8 (2), Punjab Pre‑emption Act, declaring that no right of pre‑emption shall exist in respect of areas falling in Colony Districts. The land in dispute does fall in the Colony District of Faisalabad. This notification was subsequently withdrawn on 2nd March, 1973. But this withdrawal took place after the sale impugned in this appeal was made. Thus, on the face of it, the appellant bad no right of pre‑emption on the day when the sale took place.

3. The contention of the learned counsel for the appellant is the right of pre‑emption in favour of the appellant was created by Martial Law Regulation 115 which by virtue of a non‑obstinate clause contained therein overrode all other laws. Consequently the notification of exemp tion issued in respect of the Colony District under section 8 of the Pre emption. Act could not avail against a right created by the said Regulation. This being the position the notification of 28th February, 1944 could not be pleaded by the vendee to defeat the superior right of the appellant.

4. I am afraid the contention of the learned counsel for the appellant runs counter to the view expressed by the Supreme Court in Muhammad Khan v. Abdul Khaliq Khan P L D 1981 S C

155. In that case while considering the import of paragraph 25 (3) (d) of Martial Law Regulation 115 which conferred the right of pre‑emption on tenants, the Supreme Court observed :‑ "The real import of para. 25 (3) (d) is that‑ (i) in the areas where, and (ii) the agricultural land, and (iii) transactions thereof, about which; a right of pre‑emption is other‑wise basically available, there and about that land and transaction, a tenant shall have the first right of pre‑emption with regard to the land constituted in his tenancy. The question therefore whether the territory, the agricultural land and the transaction involved in a given case is such wherein or about which a right of pre‑emption exists or not, so far as relevant for the present case, is to be deter mined first under the Punjab Pre‑emption Act (I of 1913) because para. 25 (3) (d) does not purport to itself determine these matters. In this way it is thus clear that when a suit is filed by a tenant claiming a first right of pre‑emption he is really enforcing a right of pre‑emption basically granted by and under the Punjab Pre emption Act in general in the locality, about the land, and regard ing the transaction involved though preference is being bestowed on him by para. 25 (3) (d) of Martial Law Regulation 115 of 1972:" Respectfully following the observation of the Supreme Court I must reject the contention raised by the appellant and hold that on account of the notification of exemption existing on the day when the impugned sale was made he had no right of pre‑emption. This appeal is accordingly dismissed with costs. M. Y. M. Appeal dismissed.