1974 PLP 189 (SCMR)

Date of hearing : 7th November 1973. ANWARUL HAQ, J.‑Leave to appeal was granted in this case to examine the question whether the sale of evacuee agricultural land by an allottee under the Rehabilitation Settlement Scheme was pre‑emptible under 4, the provisions of the Punjab Pre‑emption Act. The relevant facts are that the land in suit was allotted to the vendor Koora under the Rehabilitation Settlement Scheme, and he sold the same to the respondent Taj for a sum of Rs.13,500, under a mutation of sale attested on the 14th of September 1964. The vendor's son Fazal Mohammad, who is the appellant before us, filed a suit for possession of the land by pre‑emption which was contested by the vendee inter‑alia on the ground that the suit was incompetent as the land sold '‑was evacuee property. The learned trial Judge dismissed the suit on 21‑2‑1966 on the ground that as the sale had taken place before the conferment of permanent rights on the vendor under section 16 of the Displaced Persons (Land Settlement) Act, 1958, the property continued to be evacuee property and no suit could be brought in respect thereto in view of the bar contained in section 16 of the Pakistan (Administration of Evacuee Property) Act, 1957. This view was upheld by the learned .Additional District Judge, Gujrat, in first appeal by his judgment dated the 19th of April 1966, and in second appeal by a Division Bench of the High Court of West Pakistan at Lahore by its judgment dated the 23rd of October 1967. The whole question of the maintainability of pre‑emption suits in respect of sales by the vendors of their rights and interests in evacuee lands held by them as temporary allottees, confirmed allottees or permanent transferees has been discussed at length and decided by this Court in a consolidated judgment delivered in a large number of appeals, reported as Suhan Muhammad v. Muhammad Siddiq (P L D 1973 S C 347). It has been held that as temporary allotment does not at all create any right or interest in the temporary allottees in the lands allotted to them, the allotment being merely a grant, the rights sold do not fall in any of the categories of the properties mentioned in section 4 of the Pre‑emption Act, and, therefore, the question of pre‑emption in respect of such sales is irrelevant. However, in the case of confirmed allottees the rights enjoyed by them under the Displaced Persons (Land Settlement) Act and the Rehabilitation Settlement Scheme are real property and fall in the category of village immovable property as defined in the pre‑emption Act, and, therefore, sales by such confirmed allottees are liable to pre‑emption. It has further been held that after the acquisition of evacuee agricultural lands by the Central Government by a notification issued in 1959 under section 4 (2) of the Replaced Persons (Land Settlement) Act, the lands have ceased to be evacuee property and have vested in the Central Government, and, therefore, the bar on the maintainability of suits imposed by section 16 of the Pakistan Administration of Evacuee Property Act, 1957, was no longer applicable to such lands. The Court has also held that section 6 of the Displaced Persons (Land Settlement) Act also does not constitute a bar to pre‑emption to respect of sale of land in the compensation pool, because the pre‑emptor in such a case does not proceed against land in the compensation pool for any claim but wants to be substituted in place of the vendee. As regards sales by the permanent transferees, rights have been conferred under section (Land Settlement) Act, 1958, the Court has found that such sales are clearly pre‑emptible as any other sales of agricultural property. In the light of this decision, the view taken by the Courts below regarding the maintainability of the pre‑emption suit in the present case cannot be sustained. As already stated, the sale took place on 24‑9‑1964, by which date the evacuee land in dispute stood acquired and had formed part of the compensation pool. Tire bar contained in section 16 of Act X11 of 1951 was, therefore, no longer applicable to this case. Nor was the suit barred by the provisions contained in section 6 of the Displaced Persons (Land Settlement) Act, 1958. As a result, we would accept this appeal, set aside the judgments of the Courts below and remand the suit to the trial Court for decision on merits to the light of the judgment of this Court mentioned above. At this stage, it was submitted by the learned counsel for the respondent. vendee that none of the Courts below had held any inquiry as to the nature of the rights enjoyed by the vendor in the land in suit, and, therefore, it could not be said whether the sale was in fact pre‑emptible or not, as it is possible that the vendor may have only been a temporary allottee at the time of the sale, without his allotment having been confirmed under the Rehabilitation Settlement Scheme of 1950, as amended in 1957. As the case is being remanded to the trial Court for disposal on merits, the respondent would be at liberty to raise this plea as well, if so advised. As the questions involved in this case were difficult questions of law, we would leave the parties to bear their own costs. Appeal accepted. Case remanded,