P L D 1979 Lahore 896 (PLP)

This appeal by vendees (defendants) in a pre-emption suit calls in question, judgment and decree passed in favour of the respondent (preemptor), on the ground that the sale was not pre-emptible, and, therefore, the trial, Court had no jurisdiction to try the suit.

2. There is no controversy on facts. Both the learned counsel agree that the land in dispute is subject to the Colonization of Government Lands Act ; and the sale is only of the occupancy rights, thereunder. It is also admitted that the sale in favour of the respondent was effected after the necessary sanction had been obtained under section 19 of the Colonization of Government Lands Act. It appears that an objection was raised before the learned trial Court that the land being subject to the Colonization of Government Lands Act was not pre-emptible ; on the assumption that the Notification No. 196-8 dated 28-2-1944 issued under section 8(2) of the Punjab Pre-emption Act (whereby sales of land under the Colonization of Government Lands Act were declared as immune from right of pre-emption), was still in force. But now it is an admitted position that the said notification was rescinded by Notification No. 662-73/447-LR-III published in the Punjab Gazette, Part I, on 2-3-1973 (P L D 1974 Punjab Statutes, page 211). Thus, by making reference to the Colonization of Government Lands Act or notifications issued thereunder, it is not possible to hold that the sale in question was not pre-emptible.

3. Learned counsel for the appellant, however, tried to argue that section 15(a) of the Pre-emption Act, which provides for pre-emption qua sale by an occupancy tenant, would not apply because of the peculiar nature of the rights of the vendor and the pre-emptor in this case, as co-sharers in the occupancy rights. However, when it was pointed out to him that the expression "agricultural land" as mentioned in the purview of section 15 would have to be read as defined in section 3(1) of the Pre-emption Act read with section 2(3) (f ) of the Punjab Alienation of Land Act and would thus, also include the right of occupancy, he did not press the argument any further.

4. Next, the learned counsel raised an ingenuous argument, namely, that the respondent (pre-emptor) being co-sharer and real brother of the vendor would be entitled to claim ownership in the land in question, therefore. on account of section 53(10) read with section 60 of the Punjab Tenancy Act, the vendor and pre-emptor would be deemed to be the landlords and that being so, the remedy of the respondent would be a suit under section 60 of the Tenancy Act and not through a suit for pre-emption. He in this behalf relied on Ahmad Khan v. Jang Baz Khan and another (A I R 1924 Lah. 210). The argument as advanced is not only untenable but also misconceived and the ruling cited has no relevance. Learned counsel for the respondent, however, explained that the reference of the learned counsel for the appellants might be to section 114 of the Tenancy Act (as enacted by the Punjab Tenancy (Amendment) Act, 1952) ; with regard to which Mr. M. Mahmood, author of Law of Pre-emption, at page 28 of the First Edn. (1974) of his book, observed that the right of pre-emption qua the sale of occupancy rights "ha now been abolished by virtue of Punjab Tenancy (Amendment) Act, 1952". He has himself explained away the said observation by relying on subsection (1) of section 114 which exempts the occupancy rights in respect of all lands owned by Government. The position taken by the learned counsel for the respondent finds full support from section 114(1) of the Tenancy Act. The aforementioned observation in the book is also of no advantage to the appellants.

5. Looked at from whatever angle, there is no force in this appeal and the same is accordingly dismissed. There shall be no order as to costs. s. Q. ???????????????????????????????????????????????????????????????????????????????? Appeal dlsrrissed.