1972 PLP 639 (SCMR)

HAMOODUR RAHMAN, C. J.‑This is a petition for special leave to appeal from the judgment of a Division Bench of the former West Pakistan High Court, Peshawar Seat, dismissing Civil Revision No. 203 of 1962 which was after the coming into force of the Civil Procedure (Amendment Act of 1963, treated as a second appeal. This second appeal arose out of a suit for possession by pre emption of certain Ghair Mumkin lands, measuring 5440 square feet, situated in Mahal Tukra No. 1, Tehsil Peshawar, Khata No. 79/109, Khasra No. 435‑min. The suit was brought by the respondent herein who claimed that he was a co‑sharer in the contiguous Khasras Nos, 27, 29 and 30 of Mahal Mauza Shah Dhand, Tehsil Peshawar, which lie by the southern side of the lands sought to be pre‑empted. All the Courts below found that the Khasras No. 27, 29 and 30 of Mauza Shah Dhand were contiguous to Khasra No. 435 min of Mahal Tukra No. 1, and that, according to the jamabandi of the year 1929‑30, the respondent was one of the persons entered in the column of "cultivation" as an occupancy tenant, under section 5 of the Punjab Tenancy Act of 1887, in respect of Khasras Nos. 27, 29 and

30. Later on, Malik Ghulam Hussain, one of the aforementioned occupancy tenants, purchased a 1/5th share of the ownership rights in these Khasras by a registered deed dated 13‑11‑1945 and the sale was given effect to by a mutation No. 756 attested on 3‑12‑1946. By this purchase, the occupancy rights of Malik Ghulam Hussain merged in his ownership rights in these three khasra numbers to the extent of 1/5th share. In the jamabandi of 1949‑50, accordingly, Lal Duara, the original Hindu owner, was shown as "owner of 4 shares" only while Malik Ghulam Hussain was shown as having "Maliki Qabza of one share". In the column of "cultivation" 1n this jamabandi,.Maiik Ghulam Hussain, however, continued to be shown also as an occupancy tenant along with the respondent and others. In the year 1950, the North‑West Frontier Tenancy Act, No. XXV of 1950 came into force, and under sections 4 and 4‑A thereof, occupancy tenants were given ownership rights. In the column of "kaifat" of the jamabandi for the year 1949‑50, there fore, the occupancy tenants including the respondent Malik Amir Muhammad Khan were, under an order of the Commissioner dated 14‑6‑51, entered as owners to the extent of their respective shares in the occupancy tenancy. This was regularised in the jamabandi for the year 1954‑55 on the basis of Fard‑e‑Badar No. 32, dated 11‑8‑

55. The original Hindu owner, nevertheless, still continued to be shown as owner along with the occupancy tenants. Be that as it may, these revenue records sufficiently establi shed the right of Amir Muhammad Khan to be a co‑sharer in the contiguous holdings. In this suit, the Courts were neither concerned with the exact respective shares of the occupancy tenants now transposed into the category of owners, nor with the correctness of the entry showing Lai Duara as a co‑owner, nor with the dispute, if any, which Malik Ghulam Hussain may have had with regard to this incorrect entry in the jamabandi ; but this question was sought to be raised in the High Court on behalf of Malik Ghulam Hussain on the basis of some certified copies of official documents, which had been produced to show that Malik Ghulam Hussain had gone on appeal and revision to the higher revenue authorities against the wrong entry in the jamabandi of 1955. The revenue authori ties had rejected his claims and advised him to establish his right in a civil Court. Since there was no evidence before the High Court that Malik Ghulam Hussain bad filed any such suit for the correction of the revenue records it refused to adjudicate upon. the rights of Malik Ghulam Hussain in the pre‑emption suit and we think that it rightly refused to do so. The heirs of the vendee, who have lost in all the Courts below now seek special leave to appeal, and the learned counsel appear ing on their behalf has contended that a serious question of law relating to the applicability of the provisions of sections 4 and 4‑A of the North‑West Frontier Tenancy Act No. XXV of 1950 to evacuee properties had not been considered by the Courts below. The precise contention is that, since by section 6 of the Pakistan (Administration of Evacuee Property) Ordinance No. XV of 1949 all evacuee property had vested in the Custodian with effect from the 1st day of March 1947, the Custodian could not now be divest ed of the same, because, the provisions of the said Ordinance were, under section 4 thereof to have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. It is urged that, since Lal Duara, the owner of 4 shares, was a Hindu, his ownership rights vested in the Custodian on his migra tion to India and his rights to the extent of 4 shares in Khasra Nos. 27, 29 and 30 could not now be given to the occupancy ten ants in pursuance of sections 4 and 4‑A of the North‑West Frontier Tenancy Act, because that would amount to divesting the Custodian of the evacuee ownership rights vested in him. This contention is without any substance, for, section 4 of Ordinance No. XV of 1949 only provides that the provisions of the said Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law "for the time being in force". i.e.. any other law subsisting at that time. The N.‑W. F. P. Tenancy Act was not such a law. This does not, in any event, prevent the passing of a future law by a competent authority to make a different provision, as has been done by the North‑West Frontier Tenancy Act in respect of occupancy tenancies. It is true that the provisions of Ordinance No. XV of 1949 were subsequently repeated in the Pakistan (Administration of Evacuee Property) Act No. XII of 1957; but, if in the meantime by operation of the provisions of sections 4 and 4‑A the Custodian has already become lawfully divested of the ownership rights which had vested in him, then the subsequent Act of 1957 could not restore that ownership right to the Custodian. The fallacy of this argument is further demonstrated by the fact that actually in 1958 new laws were made to divest the Cus todian and to vest all evacuee properties acquired by a notification issued under those Acts, in the Government in order to create a compensation pool for the rehabilitation and settlement of claim in displaced persons coming over from India. In a large number of cases, ownership rights have, as a matter of fact, been transferred to such displaced persons. If the contention, that property once vested in the Custodian cannot be divested, was correct then such transfers could pot have taken place. The learned counsel next contended that the jamabandi for the year 1962, of which he has now been able to procure a copy, shows that by the Farde‑e‑Badar No. 63 of 1962, the possession of Malik Ghulam Hussain has since been regularised. If that be so, then Malik Ghulam Hussain has no further cause for com plaint now. This does not, however, in any way, affect the claim of the occupancy tenants that they have now become co‑sharers to the extent of the Maliki or ownership share of Lal Duara. If on the other hand Fard‑e‑Badar No. 63 of 1962 is sought to be utilised to defeat the claim of the respondent to be a co sharer in these khasra numbers, then the petitioners should, if so advised, move the High Court in review, on the ground of dis covery of new evidence which could not be found out even by due diligence at the time of the hearing of the appeals before the High Court. We do not, however, express any opinion as to the validity of this contention. On the evidence before the High Court, we are of the opinion that the High Court rightly decided that the respondent had established his preferential right to claim pre‑emption as a co -sharer in the contiguous holdings. This petition is accordingly dismissed. Petition dismissed.