P L D 1975 Lahore 139 (PLP)

Date of hearing : 23rd May 1974. This Regular Second Appeal has arisen out of the following facts. Ata Muhammad respondent brought a suit for possession of one-half share of the suit property as an owner and for the other half on the basis of superior right of pre-emption as against Munawar Khan, the first vendee, and Ghulam Hussain, the alleged second vendee. The suit was resisted and the following issues were framed, which fully reflect the pleadings of the parties: "(1) Whether the plaintiff is owner to the extent of 1/2 share in the suit property? O. P. P. (2) Whether the plaintiff has got a superior right of pre-emption? O. P. P. (3) Whether the price of Rs. 1,500 was fixed in good faith or actually paid to the vendor? O. P. D. (4) If issue No. 3 is not proved, what is the market value? O. P. P. (5) Whether the defendant No. 1 has re-sold the suit property to defendant No. 2? If so, what is its effect? O. P. D. (6) Whether the vendor and the plaintiff are non-proprietors in the village and could not sell the suit property under the custom? O. P. D. (7) Whether Ghulam Hussain defendant is owner in the village? If so, what is its effect? O. P. D. (8) Relief." The learned trial Judge finding that the sale of superstructure of a house by a non-proprietor is not sale of village immovable property as contemplated by section 4 of the Punjab Pre-emption Act dismissed the suit as nut maintainable. The pre-emptor appealed and the learned District Judge hiss reversed the finding of the trial Court in respect of issue No.1 and has held that the plaintiff has one-half share in the suit property. As for the other half, the superior right of pre-emption of the plaintiff not being in dispute and sale of superstructure having been held by the District Judge as pre-emptible, the plaintiff has been permitted to pre-empt the sale of half of the suit house on payment of Rs. 500.00 because the market value of the suit property has been found as Rs. 1,000.00. The alleged resale by Munawar Khan in favour of Ghulam Hussain has been rejected in affirmance of the finding of the trial Court on the further ground that the sale deed, Exh. D. 2, dated the 20th of January 1962 in favour of Ghulam Hussain being unregistered and the value of the property intended to be conveyed being in excess of Rs. 100.00, it did not convey any right to the said vendee. The suit has accordingly been decreed by the learned District Judge.

2. The admitted facts are that Ata Muhammad pre-emptor had inherited the suit house in equal share with his brother Ghulam Muhammad from his father. As such Ata Muhammad was entitled to half share in the property and the finding of the District Judge in that respect granting a decree of half of the house to Ata Muhammad is not in dispute before me. As regards the other half, Munawar Khan is in no manner related to Ghulam Muhammad, the vendor, nor is Ghulam Hussain, the second vendee, although a proprietor in the village, in any manner related to Ghulam Muhammad. The result is that under section 15(b) thirdly of the Punjab Pre-emption Act, Ata Muhammad has a preferential right of pre-emption as against the first and the second vendee. The objection that the sale in favour of Munawar Khan is not pre-emptible for the reason that Ghulam Muhammad is a non proprietor and he was only entitled under the shart wajib-ul-arz, Exh. D. 4, to remove the malba and the malba thus sold being not village immovable property, the suit is incompetent, is without merit. It has been held in Banarsi Das v. Haji Abdul Ghani 10 P R 1909, that a building standing on land is immovable property as per definition of the term given in the Punjab (now West Pakistan) General Clauses Act. The relevant observations are as under:- " . . . . . We are of opinion that a standing building is immovable property under the Punjab General Clauses Act, there being no definition of the term in the Pre-emption Act, and the context also not being repugnant to such an interpretation. In common parlance the same expression is used with reference to such property. This is the opinion also of the Lower Courts, and nothing cogent has been brought forward against it. No general argument about strictly construing the Pre-emption Act, and not extending the right of pre emption can avail against the ordinary rule of attaching the usual meaning to words used in a statute where it has not been employed in a special or technical sense . . . . . " The question whether or not such standing structure sold by a non-proprietor is pre-emptible as village immovable property under the Punjab Pre-emption Act as per provisions of section 4 of the said Act has been considered in Buta Singh v. Rahim Bakhsh and others A I R 1927 Lah. 283, wherein it has been held:- "There is also no force in the argument that the sale of the superstructure with the right of residence is not a sale which can be pre-empted under the Punjab Pre-emption Act. Immovable property is defined in section 3(25) of Act 10 of 1897 where it is said that `immovable property' shall include land, benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to earth. What was sold in the present case obviously comes within the definition and it was held in Banarsi Das v. Haji Abdul Ghani, supra that a standing building was immovable property under the General Clauses Act, there being no definition of the term in the Pre-emption Act. A similar question was also debated in Sardar Din and others v. Mst. Ajah Bibi and others A I R 1923 Lah. 394, and the answer returned was in the affirmative. No authority to the contrary has been cited before me. I am in respectful agreement with the view expressed in the three precedent cases and I find that Ghulam Muhammad, although a non-proprietor, has sold his half share, of the house to Munawar Khan, another non-proprietor, and the said sale being of village immovable property is pre-emptible. It may be added at this stage that the sale-deed (Exh. D. 1) by Ghulam Muhammad in favour of Munawar Khan is unregistered and is hit by the provisions of section 17 of the Punjab Registration Act. This fact has not been noticed by the Courts below. Similarly, the alleged sale by Munawar Khan in favour of Ghulam Hussain is by an unregistered sale-deed (Exh. D. 2) and if the reasoning of the learned District Judge is accepted that there has been no sale in favour of Ghulam Hussain for want of registration of Exh. D. 2, the sale-deed (Exh. D. 1) in favour of Munawar Khan is equally inoperative and ineffective from that point of view. However, the argument of non registration of sale-deed, when possession has passed to the vendee, is no longer available to defeat a suit for pre-emption as laid down in Sultan Muhammad v. Muhammad Siddiq P L D 1973 S C

347. The sale in favour of Ghulam Hussain is however of no avail, in view of my finding above that Ata Muhammad has a preferential right of pre-emption both against Munawar Khan and Ghulam Hussain.

3. The other half-hearted contention raised by learned counsel for the appellants that because during the pendency of the suit the roof of the suit house has been removed, it no longer remained a building standing on land and for that reason also the property is not village immovable property and the pre-emptor having lost his right to pre-empt before date of the decree, is equally without merit. If the pre-emptor loses the right to pre-empt by an act of his own, he may be deprived to continue with the suit but if it is because of an act of the vendee, the rigour of the law will not work against the pre-emptor. Removal of a part of the roof or even whole of it may necessitate some repair to the house but it does remain village immovable property all the same; rather the pre-emptor can claim an abatement of the price if the property deteriorates in the hands of the purchaser (see Aziz Din v. Sham Das and others 91 P R 1892, Din Muhammad, J., observed in Madho Singh and another v. Lieut. James R. R. Skinner and others 1 L R 1942 Lah. 155, that `it is obvious that it (the Pre-emption Act) does not in terms debar a vendee from defeating a pre-emptor in any manner that may lawfully be open to him'. Can it be so held in the instant case? The answer is in the negative. The vendee, who was not entitled to retain the property in the presence of a preferential pre-emptor, was not lawfully entitled to damage the property or to demolish it so as to present a fait accompli and turn round to say that there is no building in existence and, therefore, the sale transaction is not pre-emptible. That has not been the intention of the Legislature and I have no hesitation in repelling the contention.

4. The last contention pertains to the market value fixed by the learned District Judge. The ostensible price in the Sale deed Exh. D.1 is Rs. 1,500.00. The property has been admitted to have been re-sold by Munawar Khan to Ghulam Hussain for Rs. 1,000.00 as per Exh. D ,2 and same has been accepted as the market value by the lower appellate Court. Learned counsel for the appellants has not been able to point out any legal infirmity in his finding.

5. The upshot of the discussion above is that the appeal fails and is dismissed with costs. S. A. H. Appeal dismissed.