1990 PLP 1145 (MLD)

4. Another piece of agricultural land bearing Survey Nos. 283, 287, 288 and 292 in all measuring 12‑7 acres situated in deh 3 Sammo Rahu, Taluka Sakrand, District Nawabshah belonged to Ibrahim son of Bhoro who through a registered sale‑deed executed by him on 18‑5‑1967 sold the said land for Rs. 6,087.50 to Soomar son of Sher Muhammad, Shahan son of Rakhial and Muhammad Sadiq son of Bachayo. The aforementioned Amir Bux, Dhani Parto and Rasool Bux yet filed a third suit in their exercise of right of pre‑emption in respect of the third transaction against Ibrahim; Soomar, Shahan and Muhammad Sadiq. Their suit was registered as Suit No. 71 of 1968 in the Court of Joint Civil Judge, Nawabshah.

5. The defendants in all the suits had denied that the plaintiffs had any right of pre‑emption over the suit lands and in fact no such Talabs were made as were mentioned by them in the plaint and suits were not competent.

6. On 30th January, 1980 the joint Civil Judge, Nawabshah passed judgments in all the three suits decreeing the suits of the plaintiffs.

7. Shahan and Muhammad Sadiq, who had purchased the land from Jamaluddin and were defendants in suit No. 69 of 1968 being aggrieved by the judgment and decree mentioned in the preceding paragraph filed an appeal which was registered as Civil Appeal No. 13 of 1980 in the Court of Ist. Additional District Judge, Nawabshah.

8. Soomar who had purchased the land from Jamaluddin and was defendant in Suit No. 70 of 1968 also being aggrieved by the judgment and decree mentioned above, filed an appeal which was registered as Civil Appeal No. 15 of 1980 in the Court.

9. Soomar, Shahan and Muhammad Sadiq, who had purchased the land from, Ibrahim and they were the defendants in suit No. 71 of 1968 too filed their appeal which was registered as Civil Appeal No. 14 of 1980 in the Court.

10. The Ist Additional District Judge, Nawabshah, who had heard all the three appeals mentioned hereinabove passed a common judgment on 17‑7‑1982, He accepted the appeals mainly on the ground that proper legal demands contemplated by Muslim Law necessary, for claiming a right by way of pre -emption were not validly made by the pre‑emptors and, therefore, dismissed all the suit filed by the plaintiffs.

11. It is against the appellate judgment that the present applications have been filed.

12. Mr. Afzal Ahmed, Advocate appearing for the applicants contended that the applicants, the plaintiffs in the suits had duly complied with‑the provisions of law in making Talab‑e‑Mowasbat and Talab‑e‑Ishhad immediately after they became aware that the land adjoining to their land was sold and the appellate court had erroneously held that such demands were not made in compliance with the mandatory provisions of Muslim Law. He relied on cases reported as P L D 1985 Kar. 161, P L D 1987 Kar. 515, P L D 1989 Kar. 246, 1984 C L C 33, P L D 1989 S C 314.

13. Mr. Kazi Muhammad Saleh, Advocate appearing for the respondents pointed out that the suits filed by the applicants were not maintainable in law as at the time of‑ filing of the suits the applicants did not have any right of pre -emption as applicants had based such right on the basis of adjoining land which in fact was not owned by them. The applicants were granted land out of the pool of agricultural lands resumed from the land‑owners under the provisions of West Pakistan Land Reforms Regulation, 1959 (MLK‑64) on instalments basis. It was only in the year, 1973 that the Government exempted them from payment of balance of instalments and for the first time granted them proprietary rights over the land. At the time when they had filed the suits in exercise of their right of pre- emption, they were not the owners of land as they had not acquired title over it.

14. In all the three suits, the trial Judge had framed a number of issues on the basis of the pleadings of the parties. The following common issue was framed as issue No. 1 in all the suits; Issue No. 1. "Whether the plaintiffs had a right of pre‑emption?" The plaintiffs in order to prove the above issue had produced an extract from the record of rights showing them to be the grantees of the land. They also produced an extract from the Record of Rights Ext .32 showing them to be the Khatadars from 1973. The trial Judge on the basis of such record produced by Amir Bux one of the applicants treated the applicants to be owners of the adjacent lands although he had clearly stated in his cross‑examination that the land was granted to them on instalments basis by the Government under the Land Reforms of Ayub regime. They had paid 21 or 22 instalments and the remaining instalments were remitted by Bhutto regime and on that account in 1973 the land was mutated in the Record of Rights in their "Khatta".

15. The right of pre‑emption under the Muslim Law can be exercised by following three categories of persons:‑ (i) A co‑sharer in the property itself (Shafi‑e‑Sharik). (ii) A participator in immunities and appendages, such as a right of way or a right to discharge water (Shari‑i‑Khalit), (iii) Owners of adjoining immovable properties, (Shafi‑e‑.far) other than tenants and persons not having lawful title.

16. The applicants had based their suit on their right covered by the third category mentioned above. There is, however, an exception to such category in respect of rights over agricultural estates. It can only be exercised in respect of small parcels of land. In the province of Sindh exercise of such a right in respect of grant of Government lands is known as "Mohag Right". Under the rules an area either equal to 10% of the holding of the pre‑emptor or a maximum of four acres (whichever may be less) can be granted to "Mohag‑e‑dars" who have a "first right of refusal" in respect of land lying in the frontage of their lands. It seems that such a principle of Muslim Law was made the basis of such a rule. The applicants themselves were claiming to be owners of small areas of land granted I to them on payment of certain instalments towards the price of land as the sitting tenants under the Scheme prepared for the disposal of land resumed from the Zamindars under West Pakistan Land Reforms Regulation, 1959 (MLR‑64). The grantees of such land till they paid full instalments were merely given permission to occupy and cultivate it and could not be equated to be the owners of land under the very Scheme whereby t4ey were granted their land. The West Pakistan Land Revenue Act, 1967 unlike the Sindh Land Revenue. Code, 1879 did not contain any provision for the disposal of Government land. It was due to such reason that the Colonization of Government Lands (Punjab) Act, 1912 was made applicable to the entire West Pakistan including the areas now comprising the Province of Sindh by West Pakistan Ordinance No‑30 of 1969. According to the definition in section 3 of that Act, "tenant" means any person holding land in a colony as a tenant of Government and includes the predecessor and successor‑in -interest of a tenant. A purchaser of Government land pending payment of full purchase money is deemed to he a tenant of such land during the intervening period as provided by section 15 of the said Act. Applying the above provisions of law, the applicants could not be taken to be the, owners having title, over their land till for the first time they were conferred such rights in the year 1973.

17. The right of pre‑emption under the third category arises only when the pre‑emptor is the owner of property under a valid title on the basis of which he can claim the right to pre‑empt in respect of adjoining land. In the present suits the sales were executed in the year 1967 while the applicants who had filed the suits acquired title over their land admittedly for the first time in the year 1973. At the time when the suits were filed the applicants did not have such a right. Persons with imperfect or no title can be treated to be the owners of property to enable them to exercise right of pre‑emption under third category under the Muslim Law and suits filed by the applicants without having any title were surely not maintainable.

18. Both the lower Courts below failed to take note of such an admitted position in respect of the land claimed to be owned by the applicants on the basis of which they had put forward their right of pre‑emption over the other land. The appellate Court instead of dealing with such fundamental issue in the suits adverted to the demands made by the applicants in exercise of, their supposed claim of pre‑emption and reached the conclusion that the applicants were not entitled to the decrees passed by the lower Court. In view of the reasons given hereinabove too, the result of the suits will be the same as has been reached by the appellate Court.

19. Due to above reasons, by a short order passed on 29‑11‑1989 the revision applications were ordered to be dismissed maintaining the conclusion of the appellate Court dismissing the suits filed by the applicants. While above are the reasons for the short order. M.BA./A‑769/K Petitions dismissed.