1977 PLP 297 (SCMR)

(2) If issue No. 1 was proved in the negative what was the correct valuation? (3) Whether plaintiffs had superior right? (4) If issue No. 3 was proved in the affirmative whether plaintiffs had waived their rights? (5) Whether the defendants had made any improvements? If so of what value and what was its effect? (6) Whether the sum of Rs. 1,500 bad been fixed in good faith or paid? (7) What was the market value? (8) Relief. After recording such evidence of the parties as they wished to adduce the learned Civil Judge who was seized of the case by his judgment dated the 28th of January 1969, held that the suit bad been properly valued, that plaintiffs had super right, that plaintiffs had not waived their rights, that plaintiffs had failed to prove any improvements and that payment of Rs. 1,500 bad been proved. He therefore decreed the suit on payment of Rs. 1,

500. Salehon and Muhammad Inayat the vendees went up in appeal against the judgment and decree of the learned Civil. Judge to 'the Court of the District Judge and a learned Additional District Judge who heard the appeal by his order dated the 17th of November 1969 set aside the findings of the learned lower Court on issues Nos. 1 and 5 and remanded the case back to the lower Court under Order XLI, rule 23‑A of the Code of Civil Procedure for disposing of the case after giving his findings afresh on the aforesaid issues. Salehon and Muhammad Inayat vendees filed first appeal against this order of the learned Additional District Judge in the High Court at Lahore, At the same time the appellants submitted an application under Order XLI, rule 27 of the Code of Civil Procedure for additional evidence as well. The learned Judges however by their order dated the 18th of February 1971 rejected the application for additional evidence and dismissed the appeal in limine. Salehon and Muhammad filed a petition for special leave to appeal against the aforesaid order of the learned Judges of the High Court. Leave to appeal in both the cases was granted on the 30th of June 1971. In both the cases the pre‑emptors owned agricultural land in the village while the vendees did not own agricultural land in the village but owned land in the village abadi on which they had made construction. The vendees claimed the since they were also owners of the estate like pre-emptors the suits could not be decreed, their right of pre‑emption being equal to that of the pre‑emptors. The point for consideration before the High Court therefore was as to whether the owner of land in the village abadi could be deemed to be an owner of the estate‑within the meaning of section 15(c), thirdly of the Punjab Pre emption Act, 1913. The learned Judges in the 'High Court following the authority reported in Narain and others v. Copal Singh (106 P R 1913) and the observation made in Lachhman Sing v. Natha Singh and others (I L R Lah 128) on the doctrine of stare decisis held that the vendees who were owners of landing the village Abadi could not be deemed to be owners of the estate within the meaning of section 15(c), thirdly of the Punjab Pre‑emption Act, and therefore dismissed both the appeals. The learned Judges of the High Court however expressed some doubt about the correctness of the law enunciated in the aforesaid authorities in the following words: ‑‑‑ "In support of his contention the learned counsel referred to subsec tion (6) of section 3 of this Act and a rued that in order to determine whether the appellants owners of estate reference should be made tit section 3 of the Punjab Land Revenue Act. 1917. By going through subsection (6) of section 3 of the first‑mentioned Act the contention of the learned counsel appears to be valid that since the words `owners of estate' have not been defined in that Act, reference for that purpose will have to be made‑ to section 3 of the Punjab Land Revenue Act. By going through the definition of these words, as contained in section 3 of the latter Act, they no doubt lend support to the conten tion of the learned counsel." This Court therefore granted leave to appeal in the following words :‑ "The High Court has felt compelled to decide the question of law, namely, as to whether owners of lands in the village abadi can be deemed to be owners of the estate within the meaning of the third definition of section 15(c) of the Punjab pre‑emption Act, 1913, on the basis of a Full Bench decision of the Lahore High Court in the case of Lachman Singh v. Natha Singh I L R 11 Lah. 128 although it has been observed that by going through the relevant provisions of the Punjab Pre‑emption Act in the Punjab Land Revenue Act, 1917, the contention of the appellants did not appear to be altogether untenable. Learned counsel has, accordingly, contended that even though the decision of the Full Bench has held the field for the last 40 years, a doubt has now been cast upon its correctness by the observations of the Learned Judges in these appeals, and, therefore, the matter should be authori tatively decided by this Court, particularly, since the observations of the Full Bench were merely in the nature of obiter dicta. Since the High Court had also relied on tile principles of stare decisis we, were not inclined to grant leave in these matters to upset a decision which has held the field for more than 40 years but as this question of law is of some general importance and a doubt has now been cast upon it by the observations of the learned Judges of the High Court in the appeals front which the present petitions arise, we have decided to grant leave in these petitions to examine this question of law‑ subject to the condition that the present petitioners will, regardless of tire result of the appeals, also pay the costs of the respondents in the event of their entering appearance to oppose the appeals " The relevant portions of the authorities referred to above are reproduced here for convenience :‑ 106 P R 1913: (pp. 395‑396) if the contention of the vendees is allowed, it would apparently follow that they or any other house‑holders in the abadi would have pre‑emptive right in the village lands in their alleged capacity as owners of the estate. We cannot agree that there is any justification for so extravagant a conclusion even if we admit the argument that the village abadi is the part of the estate according to the definition of estate in section 3(1), Punjab Land Revenue Apt. The conclusions if allowed, would strike at the root of the Pre‑emption Act. It appeared to us quite impossible to give a strained interpretation to the term `owner of the estate' as including owners of houses in the abadi merely because the abadi may be technically part of the estate. We entertain no doubt that the law was intended to exclude mere house holders, and we do not even think that a pedantically literal construc tion of the words `owner of the estate' would justify an extension of application of the term in a manner which is so clearly opposed to the whole principle upon which the Pre‑emption Act is based. To justify such construction we should have to read the words `owner of the estate' as synonymous with the words `owners in the estate' and we have no authority for doing so. We think that the proper view is to take the words used in their generally accepted meaning, as understood in Revenue literature and as connoting exclusively what is usually described as tile proprietary body of the village." I L R 11 Lah. 128 "The Pre‑emption Act does not define the term `owner of the estate' but it has been judicially held to be equivalent to a `Khewatdar' (See Mahi v. Char at Singh) and Salamat Rai v. Kanshi Ram. This expres sion was used for the first time in the Pre‑emption Act of 1905 in place of the words `land‑holder of the village' which were found in the corresponding section of the Punjab Laws Act IV of 1872, and which, if literally construed included an owner in the abadi as well as an owner of agricultural land. This, however, was not in accord with the real intention o0f the Legislature (See Phullu v. Mukarrab). In order to put the matter beyond dispute and to limit the pre‑emptive right to those persons only, who owned revenue‑paying land, the expression `owner of the estate' was used in Act II of 1905." Learned counsel for the parties heard at length. Learned counsel for the appellants could not satisfy us in the least that the view expressed in the two authorities mentioned above was not correct. The object of the Pre‑emption Act is to exclude non‑proprietors front entering the proprietary body of the estate and if owners of houses in village abadi are held to be owners of the estate for the purposes of pre‑emption then the whole object of the Pre‑emption Act would be defeated. In Jawala Sing v. Tara Singh and another (A I R 1936 Lah. 202) it was held that the words "owner of the estate" in section 15(c) of the Pre‑emption Act referred to the proprietary body of the village and a person owning a small plot unassessed to land revenue, uncultivated and destined to be a building site could not be regarded as one of the owners of the estate'. In Shah Muhammad v. Mst. Piari and another (A I R 1936 Lah. 202) it was held that the term "owner of the estate used in section 15 of the Pre‑emption Act imported ownership of agricultural land only and as soon as an area of land which was admittedly agricultural before it converted into a building site it at once ceases to be a part of the estate and its owner is deprived of all the privileges which he could otherwise enjoy under the law." In Chant Ram v. Bar Bhaghat Singh and others (A I R 1940 Lah. 344) it was held that owner of the estate meant the proprietary body of the village and a man who owned only a small plot unassessed to revenue, uncultivated and destined to be a building site could not be regarded as one of the owners of the estate. In Chanun Din v. Chanan Din and others (A I R 1933 Lah. 213) the learned Judges went to the extent of holding that a person owning an area not assessed to land revenue could not be termed as owner of the estate irrespective of the use to which the area is put. According to Thompson s Definitions an estate is a parcel or parcels of land separately assessed to land revenue and the whole property of the persons settled within the estate is held hypothecated to the Government for the sum assessed on it. Now every proprietor in a village is liable for the whole of the land revenue of the estate in which the village is situated, but this liability does not fall on persons who Own houses only in the village abadi and do not own any agricultural land assessed land revenue. The owners of houses only in the village could not therefor4 belong to the proprietary body and could riot be owners of the estate. As remarked in 106 P R the words "owner of the estate" are not synonymous with the words "owner in the estate." The meaning assigned to the words "owner of the estate" in 106 P R has consistent been followed for more than 50 years and in our opinion it is in accord with the administration of revenue law in the Punjab and the spirit of the Pre‑emption Act. We therefore uphold the judgments and decrees of the High Court and dismiss both the appeals with costs. Appeal dismissed.