P L D 1968 Lahore 907 (PLP)

Date of hearing : 4th October 1967. This second appeal has arisen out of the following circum stances. The present appellant filed a suit for the pre‑emption of land measuring 33 kanals and 8 marlas situated in Mauza Bakhar Wah, against Gul Muhammad and Haider, vendees respondents. The vendors were Pir Bu x and Ilahi Bux sons of Miran, but they were not impleaded as defendants in the suit. The plaintiff. appellant claimed to pre‑empt the land on the ground that he was a collateral of the vendors, and had preferential right to pre‑empt the suit land as against the vendees, who according to him were not the collaterals of the vendors. The price of the suit land, according to the plaintiff appellant was Rs.

110. The vendees jointed issue arid raised a preliminary objection that the suit could not proceed, because of the provisions of Martial Law Regula tion No.

64. The objection on this score was grounded on the argument that if a decree is passed in this case, it would violate the provisions of paragraph 25 of the above Regulation. It was also claimed that the price of the; suit land was Rs.

936. A plea was also raised that the plaintiff' had waived the right of pre emption by acquiescence because he was instrumental in bringing about the bargain of the sale of the suit land which he wanted to pre‑empt. Replication was filed by the plaintiff controverting all the pleas of the defendants. The trial Court, after recording the evidence held that the suit was not barred by para. 25 of the Martial Law Regulation, as according to the learned trial Court the above para. governed only those alienations, which were made by the own volition of the parties and not those which came about by the force of a decree of a Court of Law or under the provisions of any Statute. The trial Court found that the present appellant had a preferential right of pre‑emption, against the vendees and decreed the suit subject to the deposit of Rs. 110 by the plaintiff in favour of the defendants by or before 29‑6‑1960.

2. An appeal was taken to the learned District Judge, Dara Ghazi Khan, who after perusing the pedigree‑table P. 1 to P. 3 filed on behalf of the plaintiff and D. 1 to D. 3 filed on behalf of the defendants, found that the plaintiff was not a collateral of the vendors and had therefore no superior right as against the vendees. The learned District Judge also found that the trial Courts interpretation of para. 25 of the Martial Law Regulation No. 64 was not correct, and the said para. did operate as a bar against the execution of decrees passed by Courts, if they were against the provision of the said Regulation.

3. It would be seen that the plaintiff' based his superior claim of pre‑emption on the ground that he was a collateral of the vendors, and probably he relied on sub‑clause, firstly of clause (b) of section 15 of the Punjab Pre‑emotion Act. Perhaps, it was not present to the mind of the person, who drafted the plaint that by the enactment of the Punjab Pre‑emption (Amend ment) Act, 1954 (XI of 1955), section 15 of the Original Act had been amended in the following terms "Provided that in case, where the sale is by a Muslim, the firstly and secondly shall he iv‑applicable, and thirdly shall read as follows:‑-- 'Thirdly, in the persons in order of succession, who but for such sale, would be entitled on the death of the vendor to inherit the land or property sold." The suit was filed on 22‑12‑1958 when the above amendment had already come into force. The appellant, therefore, relied on a provision of lave in order to assert his superior right of pre emption, which so far as the Muslims are concerned had been removed from the Statute Book, and was no longer in existence. The whole basis of iris case, therefore, disappears. I have, however, with the assistance of the learned counsel on both sides tried to find out, if his case can come within the ambit of clause thirdly, as amended by Act XI of 1955. In order to assert a superior right of pre‑Sorption under that clause the pre‑emptor has to prove that if the property had not been sold, he would have inherited it from the vendors in case of their death. A perusal of all the six copies of the pedigree‑table produced by the parties would indicate that the parties come from the same stock, but there is no evidence to show that the present appellant is a sharer, or a residuary of the vendors under the Muslim Law. The table of Residuary as given at page 66 (a) of the Mulla's Muhammadan Law, 1955 Edition, shows that the plaintiff appellant could succeed only if he was able to show that he was a descendant of the true grand‑father of the vendor howsoever high. It appears from the study of the pedigree‑tables concerned that the parties are descendants of one Bhingoo. The present appellant is a descendant of Marikh son of Bhingoo. It may also be mentioned that the name of the appellant's father is also Marakh. The vendors, Pir Bux and Ilaahi Bux are the descen dants of one tumid, who was the son of Fatima. It does not appear from the pedigree‑table, whether the husband of Fatima was in any way related to the line of Marakh. The vendees, Gul Muhammad and Ghulam Haider are the sons of Mst. Jannat wife of Bux. It is again not clear, as to what relationship Bux had with the line of the appellant or the vendors. A residuary under the Muslim Law derives his status from agnatic relationship and since Hamid, the ancestor of the vendors has not been shown to have any relationship with the appellant, through a male ancestor, the claim of the appellant to pre‑empt the land in suit is not well founded and does not fall within the sub‑clause thirdly of clause (b) of section 15 of the Punjab Pre‑emption Act, as amended by Act XI of 1955.

4. The finding of the learned District Judge with regard to the other issue is correct. It appears from the Jamabandi Exh. D. 4 that the defendants‑respondents own jointly 191 kanals and 9 marlas of land in this village. If the land is partitioned between the two co‑sharers, each will get 95 kanals, 141 marlas of land. According to clause 11 of para. 2 of the Martial Law Regulation No. 64, a subsistence holding means 12J acres of land i.e., 100 kanals. This would mean that in case of partition each of the co‑sharers will get less than a subsistence holding, which would be in contravention of the Martial Law Regulation.

5. The learned counsel for the appellant argued that the restriction of area in case of subsistence holding was with regard to individual owners and did not govern joint holdings. He in this connection referred to para. 23 and argued that the policy of the law was only to prevent the partition of the land into areas less than subsistence holdings and a solution of the problem was provided by para. 23, which enjoins that if the result of the partition of the property was to reduce a holding to less than a subsistence holdings, the land in that case shall not be partitioned. The learned counsel asserted that in view of this provision of law, notwithstanding the execution of the decree for pre‑emption for 33 kanals, 8 marlas, still 158 kanals and 1 marla, which is more than the subsistence holding would be left, and therefore, there will be no contravention of Martial Law Regulation No.

64. The argument of the learned counsel has no substance. Sub‑para. 4 of para. 25 reads as under:

No person owning an area equal to or less than subsistence holdings shall be allowed to alienate, by sale, mortgage, or gift or otherwise any part of his holdings. Provided that he may alienate his entire holding, or in the case of a holdin5, which is less than a subsistence holding sell any part of his holding to other owners of the same village, deh or mauza. The mere fact that para. 23 preserves joint holdings, which if partitioned will result in the creation of areas less than the subsistence holdings, does not mean that the law encourages the creation of further impartible estates, and encourages the frustra tion of its own object by permitting alienations from joint hold ings, even when the individual co‑sharers in them own less than a subsistence holding.

6. In view of the mandatory provisions of sub‑para. 4 of para. 25 of the Regulation, the Courts cannot permit the execution of a decree, which will frustrate the object of this para. According to para. 3 of the Regulation, its provisions and any rules, or orders made thereunder, shall take effect notwithstanding anything to the contrary in any other law, or in any order, or a decree of a Court, or other authority. Since the execution of the decree passed in this case would be in contraven tion of the clear provisions of sub‑para. 4 of para. 25, the execution thereof cannot be permitted. The provisions of Martial Law Regulation No. 64 will prevail as against any such decree.

7. In view of the above discussion, the appeal fails and is hereby dismissed. Since important questions of law were involved, the parties are left to bear their own costs. A.E./S.A.H. Appeal dismissed.