P L D 1954 Lahore 436 (PLP)

AKHLAQUE HUSAIN, J.‑The land in suit was sold by two widows (not impleaded as parties in this case) to the res pondents on the 27th of March, 1951. The appellant filed a suit out of which this appeal has arisen, pre‑empting the sale and based his right on section 15 (c) thirdly of the Punjab Pre‑emption Act. The defendants‑respondents resisted the suit on the plea that as they were occupancy tenants in this village, they also became, under Act IV of 1952 "owners of the estate" within the meaning of section 15 (o) thirdly of the Punjab Pre‑emption Act before the institution of the present suit and therefore, the plaintiff did nor have a right of pre-emption superior to their own. Both the lower Courts have upheld the plea of the defendant‑respondents and dismissed the plaintiff ‑appellant s suit. Learned counsel for the appellant contended before me that in fact the defendants were never occupancy tenants in this estate. This contention has no substance as there is a copy of the jamabandi, on the record to show that they were occupancy tenants in the village. Moreover the appellant cannot be allowed to raise a question of fact at the hearing ole second appeal which he never raised in any manner in either on the two lower Courts or in his memorandum of appeal in this Court. Another argument was advanced on behalf of the appel lant which was founded upon the language of subsection (7) of section 114 of the Punjab Tenancy Act, added by Punjab Act VII of 1952, which runs as follows :‑ "Government shall frame rules to give effect to the pro visions of this section, and while framing rules it may clas sify lands into different categories and prescribe different principles for assessment of compensation". It is contended that this subsection shows that the intention of the legislature was to stay the operation of section 114 in its entirety until the framing of rules by the Government and as the rules have not been framed as yet no part of the sec tion has become operative. I reject this contention as it is unwarranted by anything contained in the section itself. Section 114, subsection (2) lays down :‑ "An occupancy tenant, who at the time of the coming into force of the aforesaid Amendment Act occupies any land as such shall become owner as under :‑ (a) ... ... ... ... ... (b) of such portion of the land comprised in his tenancy without payment of any compensation as corresponds to his share of the produce, where he pays rent in the form of a share of the produce"; There cannot be any doubt that the legislature intended clause (b) of subsection (2) of section 114 to come into force at once as provided in subsection. (2) of section 1 of the Act and that the, respondents have become owners of such portion of the land comprised in their tenancy without payment of the compensation as corresponds to their share of the produce because the rent payable by them was admittedly in the form of a share of the produce. Of what portion of the land they have become owners is a question which is not at all material for the decision of this case. It is sufficient to defeat the plaintiff‑appellant's claim that they have become owners of some portion of the land; and, therefore, "owners of the estate". Lastly it was urged that the land of which the respondent may have become owners cannot be considered to be an "estate" as required by section, 3 of the Punjab Land Revenue Act, because no separate record of rights for it has been made as yet nor has it been separately assessed to land revenue. This argument is obviously fallacious because the intention of section 15 of the Punjab Pre‑emption Act is that the conten ding pre‑emptors should be owners in the same estate in which the land sold is situate; and not that the pre‑emptors should own distinct estates of their own, separate from the estate in which the land sold is situate. This is clear from the definite article "the" used in the expression "owners of the estate " in section

15. It is not denied that the estate, in which are situate the land sold and the land of which the vendees have become owners by operation of law, is an `estate' within the meaning of section 3 of the Land Revenue Act an section 15 of the Pre‑emption Act. In the circumstances of this case, however, I feel that the parties should bear their own costs in all the Courts and, therefore, to the extent that it allows the defendants costs against the plaintiff, I modify the decree of the lower appel late Court. In all other respects the appeal is rejected. K. M. A. Appeal rejected.