P L D 1982 Supreme Court 364 (PLP)

SHAFT‑UR‑REHMAN, J.‑‑Leave was granted to the defendant‑vendee in a pre‑emption matter to examine whether the conditions of elegibility imposed by sub‑para. 4 of para. 24 of Martial Law Regulation No. 115 (hereinafter referred to as Regulation) had also to be satisfied by a pre‑emptor in order to successfully pre‑empt the sale. Suleman the vendor, who was the grand‑father of the plaintiff, was owner of 57 kanals of land in Chak No. 447‑G. B., Tehsil Sumandari, district Lyallpur. By a mutation attested on 24‑4‑73 he sold 17 kanals and 6 marlas out of his holding for a sum of Rs. 18,000, in favour of the appellant. The plaintiff sought to pre‑empt the sale as a grandson of the vendor. The suit was contested by the petitioner and the following issues were framed :‑ (1) Whether the defendant has no locus stands to file this suit? (2) Whether the suit is time‑barred? (3) Whether the plaintiff has a superior right of pre‑emption? (4) Relief. As regards the objection of locus stands, the vendee pleaded that if the sale was allowed to be pre‑empted by the plaintiff, provisions of Martial Law Regulation 115 would be violated because the vendee in such a sale had to be a land owner of the same village which the plaintiff was not. The trial Court held that the plaintiff had a locus stands because he was not purchasing the land from the vendor but substituting the vendee and reliance in this regard was placed on the decision of the Lahore High Court in Abdul Majid v. Tora Baz Khan ( P L D 1975 Lab. 628). The plaintiff's claim was considered to be superior and he was allowed to pre‑empt the sale on payment of Rs. 18,

000. An appeal filed by the petitioner failed and so did the second appeal in the High Court. Hence this appeal. The learned counsel for the appellant submitted that para. 3 of the Regulation provided that "the provisions of this Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law or any order or decree of a Court or tribunal or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document." Such being the compulsive overriding effect of the provisions of the Regulation, the prohibition and the conditions contained therein on sale, alienations etc. should all be considered to be equally applicable to pre‑emptors as well and it was not sufficient for a successful pre‑emptor to satisfy the conditions of elegibility and preference as contained in Pre‑emption Act. He had to further establish by reference to the Regulation that in case he was allowed to pre‑empt the sale there would be no infringement of any of its provisions: Further support for this contention is sought from Ordinance No. XX of 1976, enforced on the 19th of May, 1976, whereby the proviso in sub‑paragraph.(4) by of paragraph 24 of the Regulation was recast and substituted. It enabled the land owner having less than subsistence holding to alienate any part of his holding by way of gift to any of his presumptive heirs or exchange with or mortgage or otherwise alienate to other owners or landless tenants of the same village, Deh or Mauza. It is . contended that for the first time in the case of owners of holdings less than subsistence holdings, a provision was made that they could gift it in favour of presumptive heirs or exchange with or alienate or otherwise part with in favour of landless tenants. Before this amendment and particularly so when the sale in dispute in this case took place, these categories had no place and could not succeed on the strength of their claim merely a: pre‑emptors under the Pre‑emption Act. A reference to the provisions of para. 24 makes it perfectly clear that it is more a restriction on the vendor than on the vendee. The prohibition sough to be applied in the present case and as contained in sub‑para. (4) of para. 24'~ of the Regulation read before its substitution as follows :‑‑ "(4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding: Provided that he may alienate his entire holding or, in the case of a holding which is less than a subsistence holding, sell any part of his holding to other owners of the same village, deh or mauza." The simple question to answer in this case is whether a pre‑emption decree amounts to an alienation by sale, mortgage, gift or otherwise, and whether it is an alienation or transfer made by a person owning the land. It is clear that a pre‑emption decree does not fall in the category of alienation by sale, mortagage. gift or otherwise. It is an adjudication by the Court and enforcement of aright under an altogether different law of which notice has been taken in the Regulation by making a supplemental provision e with regard to the right of pre‑emption of tenants. Apart from the plain wording of the provision, the interpretation canvassed by the learned counsel for the appellant may have the effect of rendering ineffective the right of the tenant to pre‑empt the sale as contained in sub‑para. (4) of para. 25 of the Regulation. A tenant has been allowed to pre‑empt the sale of land to the extent of his tenancy and a sale otherwise not offensive may on the test advocated by the learned counsel for the appellant become so if the tenant i allowed to pre‑empt that portion alone which forms his tenancy. The sale in favour of the first vendee having been completed and being i accordance with the law contravening no provision of the Regulation amounted to a valid sale and the pre‑emptor only substituted the vend in a sale which but for such substitution remained intact. The result being the product of two statutes, the principle of what cannot be done directly cannot be done indirectly is not attracted, for the statute permits its being done and the one which prohibits does not apply to the situation. We find no merit in the contentions of the learned counsel for the appellant and dismiss this appeal with costs. S.A.H. Petition dismissed.