1989 PLP L568 (SCMR)

USMAN ALI SHAH, J.‑This appeal, by leave of the Court, is directed against the judgment of the Lahore High Court, Lahore, dated 2‑10‑1978 and arises in the following circumstances:‑ Lt.Col.Siddique Ullah was allotted some land measuring 410 kanals 12 marlas situated in the revenue estate of Chakrali, Tehsil Ferozewala, District Sheikhupura, under the West Pakistan Border Area Scheme (Martial Law Regulation No.9) of 1959, vide mutation No.2499 attested on 27‑8‑1962. On his death the land in dispute was devolved on his legal heirs, Begum Ghaur Siddique etc. vide mutation No. 2501 attested on 25‑12‑1963. The legal heirs of Lt. Col. Siddique Ullah after obtaining the requisite approval from the concerned agencies, sold the land in dispute to Malik Fazal Muhammad and Col. Mohammad Afzal appellants herein. Col. Abdul Ghafoor respondent herein brought a suit for possession through pre‑emption of the suit land alleging that he has got the superior right of pre‑emption on the basis of being an owner in the estate and that the suit land was actually purchased by the defendants/appellants for a consideration of Rs. 22,000 and Rs.30,000 entered in the sale deed is fictitious and with the intention to defeat the right of pre‑emption of the plaintiff/respondent. The suit was contested by the defendants/appellants. On the pleadings of the parties, the learned Senior Civil Judge framed the following issues:‑ (1) Whether the suit is incorrectly valued for the purpose of court‑fee ana jurisdiction? (2) Whether the land in dispute is exempted from pre‑emption? (3) Whether the plaintiff has got superior right of pre‑emption as against the defendants? (4) Whether the ostensible sale price of Rs30,000 was fixed in good faith or in fact paid. If not then what was the market value of the land in dispute at the time of the alleged sale? (5) Whether the defendants have made improvements on the land in dispute? If so, to what amount they are entitled? (6) Relief. After recording the evidence adduced by the parties the learned Senior Judge decided all the contesting issues in favour of the plaintiff/respondent except Issue No. 4 which was decided in favour of the defendants/appellants. The learned trial Judge, vide his judgment dated 31‑1‑1978 decreed the suit of the plaintiff/respondent against the defendants/appellants, on payment of Rs. 30,

000. Appeal of the appellants against the said order before the learned Addl. District Judge, Sheikhupura, failed vide judgment dated 20‑9‑1978 and his regular second appeal before the Lahore High Court, Lahore also met the same fate vide impugned judgment The learned counsel for the appellants as well as for the respondent were heard in detail and record of the case perused. It was contended from the appellants side that the sale in question was not pre‑emptible under the West Pakistan Border Areas Regulation Scheme (Martial Law Regulation No.9) of 1959. Against this the learned counsel for the respondent raised an objection that all the sale transactions are pre‑emptible but only those sales which fall under the purview of sections 7, 8 and 9 of the Pre‑emption Act are exempted from the right of pre‑emption, which does not include the one which is the subject matter of the present litigation. A perusal of the record shows that the land in dispute is an agricultural estate which according to section 6 of the Pre‑emption Act, 1913 is subjected to pre‑emption. Although the above mentioned sections of the pre emption Act put some restrictions of right of pre‑emption on certain categories of land for which specific notifications are issued by the Board of Revenue. The land in dispute is situated in the border areas and included in those lands which are directly controlled by the Army General Headquarters. There is no express or implied embargo on the exercise of right of pre‑emption on the sale transactions of these lands, in the Martial Law Regulations. Such lands are normally allotted to those deserving military personnel officers in recognition of their meritorious services or gallantary awardees. The sales of these lands are normally not allowed A but in rare cases sales are allowed subject to prior approval from the General Headquarters. The idea behind this restriction is that these lands once allotted to the deserving persons may not go to the hands of general public particularly to undesirable persons from the tqilitary operational point of view. Now in this case the sale transaction has taken place with the permission of the military authorities then exercise of the right of pre‑emption cannot be ruled out. In this case the respondent is a retired army officer and is already an owner of land in the said khata. Thus he has rightly exercised his right of pre‑emption, which the learned Courts below have thoroughly adjudicated upon and decided in his favour. Under the circumstances and facts of the case, we do not find any merit in this appeal and the same is dismissed with costs. A.A./F‑114/S Appeal dismissed