1988 PLP 106 (CLC)

(b) Punjab Pre‑emption Act (I of 1913)‑‑ ‑‑‑S. 15(a)‑‑West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) , S. 5‑‑Right of pre‑emption on termination of limited estate of females‑‑Such property on termination of limited estate of females and opening out of succession, held, would be deemed to have reverted to last male owner 'and then 'Uistributed in accordance with Shariat Law‑‑Pre‑emptor, being collateral, of last male owner who was entitled to only one‑half of such property could not claim more than that in pre‑emption‑ ‑Being not related to female vendors pre‑emptors could not claim that property which would have fallen on such female vendors as their legal share. (c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑5. 100‑‑Second appeal‑‑High Court in second appeal set aside finding of First Appellate Court as being not in accordance with law‑‑Decree awarded by First Appellate Court was amended to bring it in conformity with legal requirements. Muhammad Ghani for Appellant. Ch. Muhammad Abdul Wahid for Respondent. Date of hearing: 23rd September, 1987. This appeal (R.S.A. 276/1967) arises out of a suit for possession by pre‑emption of 10 marlas of land situate at Revenue Estate Chakwal. It was sold by Mst. Mehran, widow, and Mst. Bhari, mother of Feroze, for Rs.2,000.00 to Ghulam Yasin, by means of sale‑deed registered on 31‑8‑1964. Ghulam Muhammad, Gulistan Khan and Chaughatta claimed pre‑emption in respect of this sale and sued for possession of the land. Suit was filed in the Court of Civil Judge, Chakwal on 1‑9‑1965. It was alleged that plaintiffs were related to Feroze, were co‑sharers in the land sold and were also owners of the estate. It was further alleged that the vendors were limited owners and the plaintiffs, as collaterals of Feroze, were entitled to a better right as against the vendee‑defendant, who did not claim any relationship either to late Feroze or the present vendors. Suit was contested. Learned trial Judge framed the necessary issues, recorded evidence of the parties, and vide his decision dated 9‑6‑1966, gave decree to the plaintiffs on payment of Rs.2,000 as the price payable for the land to be deposited on or before 8‑7‑1966. In default, suit was to stand dismissed with costs. On appeal by defendant Ghulam Yasin, learned District Judge held that vendors were full owners in respect of 23/24th share of the suit land and the plaintiffs, as relations of Feroze, had no right of pre‑emption. In respect of 1/24th share of the suit land, learned District Judge observed that it was evacuee land and the vendors cannot be considered to have acquired the ownership rights therein. In respect of this piece of land, that is, 1/24th share, he gave decree to the plaintiffs, conditional on payment of Rs.883.00 to be deposited by them by or before 13‑4‑1967. Aggrieved of the decision, plaintiffs preferred an appeal to this Court. Factual matrix of the case is not much in dispute. Khasra No‑3880 (10 kanals 13 marlas) situate in Revenue Estate Chakwal, of which the land in suit is a part, was held by Feroze son of Baaz alongwith some others, as its occupancy tenant, on payment of cash rent to the owner‑landlords. By mutation of inheritance, sanctioned on 4‑4‑1942, on the death of Feroze, occupancy rights held by him were mutated in the names of Mst. Mehran, his widow, and Mst. Bhari, his mother. Above position is clear from a note in remark column of Jamabandi prepared for the year 1939‑40 Ext.P.8. With the enforcement of Punjab Tenancy (Amendment) Act, 1952 (Punjab Act VII of 1952) by which section 114 was inserted in the principal Act, occupancy rights were extinguished and the tenants were given proprietary rights in the land formerly held by them as occupancy tenants. Learned counsel agree that, in pursuance to, the afore-noted provisions of law, Mst. Mehran and Mst. Bhari also acquired ownership rights and were treated as such in the revenue papers prepared subsequently. Jamabandi for 1963‑64, records Mst. Mehran and Mst. Bhari as Malikan Qabza of 2 kanals 19 marlas of land comprised in Khasra No.6622/6248/3880. As was indicated by written statement, defendant had raised number of objections to the suit, but the only point, I am required to decide, in this appeal is about the plaintiffs' right of pre‑emption. On facts, either proved or admitted at the hearing, it is clearly established that plaintiffs were collaterals of Feroze, and were not related to Mst. Mehran and Mst. Bhari. It was contended for the appellants that acquisition of proprietary rights by vendors under section 114 of the Punjab Tenancy Act did not clothe them with absolute ownership rights in the property. Despite this acquisition, vendors held the property as its limited owners. To support this statement, reliance was placed on the decisions in Rab Nawaz v., Jahana (PLD 1974 S.C. 210), Muhammad Sadiq and another v. Mst. Ghulam Sakina and another (PLD 1982 S.C. 1), Mst, Rajan and 2 others v. Mst. Ghulam Sakina and another (1983 C.L.C. 2261). To this statement, Ch. Muhammad Abdul Waahid, Advocate, readily conceded. Proceeding on the admitted premises, Mr. M. Ghani, learned Advocate, relied on section 15 (a), Punjab Pre‑emption Act, and, argued that in case of death of the vendors and opening of succession, plaintiffs as collaterals of Feroze were entitled to succeed in preference to vendee‑defendant and the view taken by learned Judge below was incorrect. As against this, Ch. Muhammad Abdul Waahid, Advocate, learned counsel for respondent, referred to section 3 of Act V of 1962 (West Pakistan Muslim Personal Law (Shariat Application) Act, 1962) , and argued that on termination of the life estates held by the two females, property shall be deemed to have reverted to Feroze and distributed amongst his heirs in accordance with Shariat Law. In that eventuality, his mother and widow shall both receive half share in the land, once held by him as last full owner. On these premises, it was argued that the plaintiffs, who are collaterals of Feroze, can succeed to the extent of 1/2 only and in regard to the rest as they were not related to the female vendors, could not lay any claim. To counter this argument, learned counsel for the appellants argued that to determine the 'order of succession' the Court will only keep in view the pre‑emptors and the vendee and no other relations. It was stressed that in order to find out the priority inter se, the Court is to take it as if the vendor is dead and then to ascertain as to who, out of the parties before it, is entitled to inherit the property to the exclusion of the other. Counsel argued that vendee was not related to the vendors and cannot retain any portion of the land purchased by him. As said above, Feroze was occupancy tenant, and on his death, these rights were inherited by his mother and widow. They paid compensation and acquired ownership rights in the land. That notwithstanding, both the females in view of law declared by Supreme Court were still limited owners. In terms of Section 15 (a) of Pre‑emption Act, which, both the learned counsel admitted, applied to the case, on the assumed death of the vendors and opening out of succession, the property shall be deemed to have reverted to Feroze, its last male owner, and then distributed in accordance with the Shariat Law as given in Section 5 of Punjab Act V of 1962. In that eventuality, plaintiffs could not lay claim to more than a half. Admittedly they were not related to the female‑vendors and could not claim the property, which would have fallen on them as their legal share. It is clear to me that on application of Section 15 (a), Punjab Pre‑emption Act 1913, to the case, plaintiffs, who were heirs of Feroze only could not be granted a better right in respect of the whole of the land sold. Their right extended to half share only and rest of the land could not be given to them, because their right in respect of it was not superior to the vendee. It is not denied that the pre‑emptor can get only that much of the land sold, to which his right extends and not beyond that. In this case, pre‑emptors' superior right extended to 5 marlas of land only. The finding of the learned Judge below given in respect of 1/24th share of the land sold was not supported by Ch. Muhammad Abdul Waahid, learned counsel for the respondent. Therefore, on the view taken by me, this appeal is bound to succeed. Accordingly, I would accept the appeal, set aside impugned judgment and decree dated 13‑3‑1967 of learned District Judge, Jhelum, and in partial modification of the judgment and decree dated 9‑6‑1966 of learned Civil Judge, Chakwal, decree the suit for possession by pre‑emption in respect of half share in the land that is 5 marlas from Khasra No. 6622/6248/3880/3 on payment of Rs.1,000, which the pre‑emptors, if they have not already paid, shall deposit in Court within one month from today. In default, their suit shall stand dismissed with costs. In view of partial success, parties are left to bear their own costs. It may be observed that if the pre‑emptors have already deposited Rs.2,000 as urged by their learned counsel, they shall be entitled to claim the refund of excess amount. A.A./19/G‑L Appeal partially accepted.