P L D 1988 Lahore 635 (PLP)

The facts giving rise to this appeal relevant for its disposal in brief are that one Zafar Ahmad Khan on 18‑12‑1974 sold his occupancy rights in the land to the appellant /defendant through Mutations Nos.14 and17 ostensibly for an amount of Rs 10,000 . The respondent Haji Mehr Din filed a suit for possession of land through pre emption on the ground that he was owner in the state , therefore had superior right of pre- emption . He also pleaded that as a matter of fact the land was sold for an amount of Rs. 6,000 which was also the real value of land but was fictitiously show to have been sold for Rs. 10,000 in order to defeat his right of pre-emption .The appellant resisted the suit . He pleaded that the plaintiffs right of pre-emption was not superior to him .He also pleaded that he himself was owner in the estate. It was also asserted that the suit was barred by time . On the pleadings of the parties the learned trial court framed the following issues. (1)Whether the present suit is barred by limitation? OPD.. (2) Whether the suit is not correctly valued for court‑fee, if not, . what is the correct valuation? (3)Was the sum of Rs.10,000 fixed in good faith and actually paid? OPD. 4). If issue is not proved then what is the market value of the: suit land? (5) Whether the plaintiff has got superior, right of pre‑emption? (6) Whether the plaintiff has waived his right of pre‑emption? (7), ‑Whether the‑ suit is not maintainable in its present form? OPD (8) Relief. After recording evidence the learned trial Court decided.issue No.3 in favour of the present appellant /defendant. On issue, No.4 no finding was recorded as it was held to be not necessary to do. The remaining issues were decided in favour of the plaintiff and the suit was decreed in his favour through judgment dated 29‑1‑1976 by the learned trial Court. The appellant feeling aggrieved filed an appeal before the learned Additional District Judge, Sialkot, in which he challenged the correctness of findings on issues Nos.2 and

5. The learned Additional District Judge by judgment dated 22‑3‑1977 maintained the findings of the learned trial Court on issue N.o.5 and remanded the case to decide issue No.2 afresh. This appeal is directed against the said remand order which has been filed by the appellant /defendant in the suit. 2 Learned counsel for the appellant submitted that the findings of the two Courts below on issue No.5 is based on erroneous assumption of facts and law, therefore, are liable to be set aside and reversed. He argued that according to the facts admitted and proved on record the vendor sold his occupancy rights. The appellant/ defendant vendee being also holding occupancy rights in the same Khata jointly with the vendor was co‑sharer in the land, as such, his case falls in sub‑clause (Fourthly) of clause (b) pf section 15 of the Pre‑emption Act whereas the respondent's case who is claiming to be the owner in the estate falls in sub‑clause (Fifthly) of clause (c) of the said Section, as such he could not compete with the appellant and the appellant's right of pre‑emption was superior to that of the respondent, therefore, his suit was liable to be dismissed.

3. On the other hand learned counsel for the respondent argued that in the written statement the appellant did not plead that he was co‑sharer but on the other hand pleaded that he was also owner of the land in the deh therefore, he could not claim dismissal of his suit on the ground that the defendant /vendee was co‑sharer in the land.

4. I have been taken through evidence, by learned counsel for the parties. According to documents Exh.P.1 and Exh.P.2 i.e. copies of register Haqdaran for 1971‑72 produced by the plaintiff /respondent himself, the appellant/ vendee also holds occupancy rights in specified share in the Khata in question jointly ‑with the vendor. According to documents Exhs.P.3 and P.4 which are also copies of register Haqdaran for the year 1971‑72 the plaintiff is owner of the estate. The learned lower appellate Court proceeded on the assumption that the word 'co‑sharer" in sub‑clause (Fourthly) of clause (b) of Section 15 of Pre‑emption Act denotes a person who held an existing joint proprietary interest in the undivided property i.e. the land, therefore, the vendee who was merely a co‑sharer in the occupancy rights could not claim superiority over the plaintiff whose case fall in sub‑clause (Fifthly) of clause (c) of the said section being owner in the estate, therefore, he was held to have superior right of pre‑emption and the findings of the learned trial Court on issue No.5, were therefore, affirmed. In recording this finding the learned lower appellate Court appears to have not taken into consideration the definition of land as given in the Pre‑emption Act. In Section 3(l) agricultural land has been defined as under:‑ "Agricultural land" shall mean land as defined in the Punjab Alienation of Land Act, 1900 (as amended by Act I of 1907) but shall not include the rights of a mortgage whether usufructuary or not, in such land‑" The definition of land as given in the Punjab Alienation of Land A ct 1919 (as amended by Act I of 1907), has been adopted for the purpose of Pre‑emption Act which is technically called legislation by reference. In section 2(3) of the Punjab Alienation of Land Act, the land has been defined as under:‑ "The expression 'land' means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture ,and includes:- Any right of occupany From a bare reading of this definition it is obvious that right of occupancy itself has been treated to be land and if the said right is sold the person holding similar right of occupancy in the same Khata jointly with the vendor of such occupancy right, shall be deemed to be co‑sharer with him in the land. The effect of this definition is that if the ownership rights in the land itself are sold then a joint owner of land itself with such vendor shall have superior right of pre‑emption as against a person who is owner in the estate. But if B only an interest or right in the land, of the kind mentioned in the said definition clause which interest has itself been defined. as land, is sold the obvious legal consequences would be that the joint owner of such interest or right, shall be deemed to be the co‑sharer in the land and his case thus would fall in sub‑clause (Fourthly) of clause (b) of section 15 and the owner ‑ in the estate whose case falls in sub‑clause (Thirdly) of clause (c) of section 15 could not defeat the right of such person as co‑sharer. The finding of the two Courts below is contrary to the law. The argument that in the written statement the appellant pleaded that he was co‑owner in the estate in view of the facts established on the record is of not much significance. It is well‑established law that it is the duty of the Court to apply the law to the facts admitted or proved on record. See P L D '1965 SC

690. Apart from this the claim of the respondent regarding superior C right of pre‑emption was specifically denied and this denial was sufficient,' for the. appellant to establish that he being co‑sharer, therefore, the respondent/ plain tiff did not possess superior right of pre‑emption.

5. Learned counsel for the respondent lastly argued that it was required under the law that superiority of right of pre‑emption, be maintained at three stages i.e. at the time of sale, during the proceedings in the suit and also at the time of passing of the decree. He argued that though it has been established from Exhs.P.1 and P.2 that the appellant/ vendee jointly held occupancy rights with the vendor in the same Khata, it was yet to be proved by him that he held those rights during the pendency of suit as also at the time of passing of the decree. According to him it has not been proved that he continued having the occupancy rights at the time of passing of the decree, therefore, his claim could not have been accepted.

6. I am afraid the contention is misconceived. Once it was established through documentary evidence that the appellant was co‑sharer in the occupancy rights with the vendor which rights were in sold as such he was co‑sharer of the land, it was for the respondent to have established on the record that he had lost those rights at the time of passing of the decree. No evidence has been brought on the record by the respondent to prove this fact, therefore, the argument has no substance..

7. For the foregoing reasons the findings of the Courts below on issue No.5 are not sustainable, which are hereby set aside. Issue No.5 is answered in favour of the appellant and it is h Id that he being co‑sharer in the land sold (occupancy rights), had superior right of pre‑emption. The suit of the respondent is liable to be dismissed on the basis of finding on issue No.5, therefore, no need to remand the case to the learned trial Court to determine issue No.2 is called for. The appeal is accepted. The impugned order dated 22‑3‑1977 passed by the learned Additional District Judge is hereby set aside and the suit filed by the respondent for possession of land through pre‑emption is dismissed with no order as to costs. M.B.A./K‑105/L Appeal Accepted