1992 PLP 1331 (SCMR)

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑ ‑‑‑‑S. 15‑‑‑Sale of land in question by the first allottee and successive sales thereafter‑‑‑Appellant pre‑empted last sale and got the land in question‑‑ Allotment in favour of first allottee was, however, cancelled by Settlement Authorities before passing of pre‑emption decree; thus, no subsisting allotment in favour of first allottee was in the field at the time of passing of decree‑‑ Subsequent restoration of allotment would not form basis of the pre‑emption decree when the fact was non‑existing at the time of passing the decree‑‑‑Land in question was part of the land originally allotted to first allottee and subsequently canceled and allotted to respondents which allotment was never challenged and became final‑‑‑Possession of such land remained with the subsequent allottee, viz. respondent‑‑‑High Court confirmed decree in favour of respondents which attained finality‑‑‑Appellant's claim through pre‑emption decree was, thus, not valid to the extent of land allotted to respondents‑‑ Appeal dismissed. R Sardar Muhammad Akram, Advocate Supreme Court of Pakistan instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Appellant. Shahid Hussain Qadri, Advocate Supreme Court instructed by Ch. Muhammad Aslam, Advocate‑on‑Record for Respondents. Date bf hearing: 16th November; 1991. ABDUL SHAKURUL SALAM, J.‑‑‑This appeal by leave arises in the following circumstances:‑‑

1. Land measuring 56 Kanals was allotted to one Muhammad Ali a refugee from Jammu and Kashmir against his verified claim on 26‑9‑1964. He sold this land to one Din Muhammad vide Mutation No.1456 sanctioned on 30‑7‑1965. Muhammad Din in his turn sold it to Allah Rakha, Muhammad Shafi, Ghulam Muhammad, Muhammad Bashir and Lal Din vide Mutation No.1747 sanctioned on 6‑4‑1967. The appellant filed a suit to pre‑empt the last sale on 14‑7‑1967. During the pendency of the suit, one Muhammad Ismail filed an appeal against the allotment in favour of Muhammad Ali before the Additional Settlement Commissioner. It was accepted, allotment was cancelled but land not allotted to anybody. This is vide order, dated 14‑9‑1968. The last vendees Allah Rakha etc. filed a revision. So also Ghulam Haider etc. The Settlement Commissioner remanded the matter for fresh decision vide orders dated 16‑4‑1969 and 30‑4‑1969. The appellant's suit for pre‑emption was decreed in his favour on 21‑10‑1969. In pursuance of the remand order, the Additional Settlement Commissioner upheld the cancellation of allotment of Muhammad Ali. This is vide order dated 14‑2‑1970. Out of the cancelled land, 22K‑6M was allotted to the respondents on 3‑5‑1971. The appellant filed a revision petition against the order of the Additional Settlement Commissioner dated 14‑2‑1970 which was accepted on 29‑12‑1973 restoring the allotment in favour of Muhammad Ali. Muhammad Ismail and Ghulam Haider, etc. filed a writ petition' in the Lahore High Court which was dismissed on 23‑6‑1979. Muhammad Ismail and Ghulam Haider etc. filed C.P. No.693 of 1979 in this Court which was dismissed on 6‑8‑1983. The respondents had fled a suit on 6‑5‑1980 seeking protection of their rights in 22K‑6M allotted to them during the period when the allotment of 56K‑5M from Muhammad Ali stood cancelled by saying that in the proceedings for restoration of allotment of Muhammad Ali the plaintiffs were not a party. The suit was decreed on 20‑1‑1983. However, the appellant's appeal was accepted by the learned Additional District Judge on 18‑1‑1984. The respondents filed a revision in the Lahore High Court which was accepted on 26‑2‑1986. Leave was granted to the appellant to consider the seeming conflict in the order of this Court by which Muhammad Ismail and Ghulam Haider etc.'s petition was dismissed whereby allotment in favour of Muhammad Ali of entire land 56 Kanals 5 Marlas was upheld and the revisional order of the High Court by which allotment of 22K 6M in favour of the respondents was maintained.

2. The case of the appellant is that he obtained a decree of pre‑emption when the land in the allotment of Muhammad Ali was sold in favour of Allah Rakha etc. and notwithstanding the vicissitude of litigation regarding the cancellation of allotment of Muhammad Ali, when it stands restored, the appellant is entitled to the fruits of the decree.

3. On the other hand, the case of the respondents is that when the allotment stood cancelled from the name of Muhammad Ali, a part of it i.e. 22 Kanals 6 Marlas was allotted in their favour and this order was never challenged by anybody, therefore, the judgment of the Lahore High Court in their favour is not liable to be interfered with.

4. We have heard the learned counsel for the parties at length and' perused the record with their assistance. Besides that the order of allotment in favour of the respondents was never challenged by the appellant, there is this very important aspect of the case and that is that when the appellant got the pre‑emption decree on 21‑10‑1969 against the sale in favour of Allah Rakha etc. on the basis that the land was allotted in favour of Muhammad Ali the allotment in the name of the latter stood cancelled vide order of the Additional Settlement Commissioner, dated 14‑9‑1968 and matter had only been remanded by the Settlement Commissioner on 16‑4‑1969 and 30‑4‑1969. In other words, there was no subsisting allotment in favour of Muhammad Ali, the original allottee. Subsequent restoration of allotment will not form basis of the pre‑emption decree when the fact was non‑existing at the time' of passing the decree. Nothing more need be said as under the impugned order of the learned High Court, the learned Judge has maintained decree in favour of respondents to the extent of 22K‑6M allotted to them as Jammu and Kashmir refugees on 3‑5‑1971 which allotment was never challenged by the appellant and the rights of the appellants under the pre‑emption decree are not affected except to the extent of aforesaid 22 Kanals 6 Marlas leaving them with still nearly 34 Kanals. The discretionary order in revisional jurisdiction in the circumstances is not liable to be interfered with. Therefore, this appeal is dismissed but the parties are left to bear their own costs. AA./A‑902/S Appeal dismissed