1993 PLP 705 (SCMR)

‑‑‑‑Preferential right on ground of ownership in the estate‑‑‑Grant of land under, para. 18, Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑Restrictive covenants attached to a transfer of land either by grant or sale do not detract from the ownership of the land‑‑‑Such grantee of land being at par with the other owners in the estate the latter could claim no preferential right. Grant under Land Reforms Regulation, 1972 (M.L.R. 115), para.18 was total and complete. No doubt, it was subject to certain conditions like non -alienation, proper cultivation etc. and for non‑observance Tiable to resumption, yet there were like "restrictive covenants", as a plot of land given in a residential area not to be used for commercial purposes etc. Restrictive covenants attached to transfer of land either by grant or sale did not detract from the ownership of the land. Therefore, the Courts below fell in error of law in holding that the grantee of such land was not an owner in the estate. He being at par with the other owners the latter could claim no preferential right. Therefore, their suit was liable to be dismissed. Sultan Ahmad v. Muhammad Siddique PLD 1973 SC 347 and Muhammad Yousaf and others v. Sultan and others NLR 1986 SO 209 ref. Sheikh Inayat Ali, Advocate instructed by Sh. Masood Akhtar, Advocate‑on-Record for Appellant. Shahid Hussain Qadri, Advocate instructed by S. Abul Aasim Jafri, Advocate‑on‑Record for Respondents. Date of hearing: 24th November, 1992. ABDUL SHAKURUL SALAM, J: ‑‑This appeal by leave arises. in the following circumstances.

1. The appellant purchased land measuring 34K‑4M in village Laloowala, Tehsil Khanpur, vide mutation sanctioned on 2‑11‑1974. The respondents filed a suit for pre‑emption on 24‑2‑1975 claiming preferential right being owners in the estate. The appellant registered the suit on the ground that he was also an owner in the estate. During the course of the trial, the appellant produced Exh.D‑1 by which he was granted land resumed under Martial Law Regulation No.115 of 1972 by the Deputy Land ' Commissioner on 9‑3‑1973. He also produced Exh.D‑2 sanctioning mutation of the land from the Land Commission in favour of the appellant on 23‑5‑1975. However, he was not accepted as owner on the basis of the said documents. The learned trial Court, therefore, decreed the respondents' pre‑emption suit vide judgment and decree dated 13‑12‑1977. The appellant's first appeal was dismissed by the learned Additional District Judge on 1‑7‑1978 and his second appeal by a learned Judge of the Lahore High Court, Bahawalpur Bench on 26‑6‑1988. Leave to appeal was granted to consider the concept of ownership in view of the judgments reported as "Sultan Ahmad v. Muhammad Siddique" PLD 1973 SC ‑17 and "Muhammad Yousuf and others v. Sultan and others" NLR 1986 SO 209.

2. Learned counsel for the appellant contended that the appellant was granted some area resumed under Martial Law Regulation No.115 of 1972 by the Deputy Land Commissioner on 9‑3‑1973. The grant was free of charge vide para. 18 of the Chapter `Utilization of Surrendered and Resumed Land'. It was submitted that though the grant was subject to certain conditions like non -alienation, maintaining land in proper state of cultivation etc., nonetheless title to the land was complete. He relied on "Sultan Ahmad v. Muhammad Siddique" PLD 1973 SC 347 and "Muhammad Yousuf and others v. Sultan and others" NLR 1986 SO 209.

3. Learned counsel for the respondents, on the other hand, contended that by the grant the appellant was not made an owner of the land. He held the land subject to conditions and it could be resumed from him.

4. We have heard the learned‑counsel for the parties and perused the record with their assistance. The Deputy Land Commissioner passed an order on 9‑3‑1973 Exh. D,‑1, title of columns 18 and 19 whereof is: , (Underlining is our). This shows that grant is total and complete. No doubt, it is subject to certain conditions like non‑alienation, proper cultivation etc. and for non‑observance liable to resumption, yet these are like "restrictive covenants", as a plot of land given in a residential area not to be used for commercial purposes etc. Restrictive covenants attached to transfer of land either by grant or sale do not detract from the ownership of the and Therefore, the Courts below fell in error of law in holding that the appellant was not an owner in the estate. He being at par with the respondent‑pre emptors the latter could claim no preferential right. Therefore, their suit w liable to be dismissed. Allowing the appeal we order accordingly. Sine question of law was involved the parties are left to bear their own costs. M.BA./G‑383/5 Order accordingly.