1988 PLP 1244 (MLD)

This Regular Second Appeal arises from the judgment/decree dated the 8th of October, 1968, of the learned Additional District Judge, Sargodha, whereby the appellant‑plaintiffs first appeal was dismissed affirming the decision of the trial Court to the effect that the land in dispute being evacuee property was not amenable to the right of pre‑emption.

2. The vendor Muhammad Yasin sold the land in question on the 28th of September, 1960, ostensibly for a sum of Rs.11,

000. The appellant Sher Muhammad sought to pre‑empt it stating in the original plaint that he was a co sharer in the Khewat as also owner in the estate while the respondents‑vendees did not enjoy any such qualification. Later, however, he was allowed to amend the plaint in pursuance of a revision petition to add the third qualification that he was also an owner in the 'Path' while the vendees did not have such a qualification as well. He added that, in fact, only a sum of Rs.8,000 was paid whereas the rest was fake.

3. The suit was resisted to be untenable on the ground that the land being evacuee property was not subject to the right of ,pre‑emption. Additionally the respondents claimed that they too were owners in the estate. They traversed the existence of any 'Pattis' in the estate for purposes of pre‑emption and also the appellant's ownership in the concerned 'Patti'. They affirmed to have paid the ostensible price in good faith stating that it truly represented the market value of the land. The following issues arising out of the original pleadings were framed by the trial Court on the 29th of November, 1961:‑ (1) Whether the suit land is evacuee property and is not subject to the right of pre‑emption? OPD. (2) Whether the plaintiff has a better right of pre‑emption against the vendees? OPP. (3) Was the ostensible price Rs.11,000 in good faith or actually paid by the vendees? OPD. (4) What is the market value of the suit land? Onus on parties. (5) Are the defendants entitled to special costs? If so, how much? OPD. (6) Relief. Later, after amendment of the pleadings issue No.1‑A was added by the trial Court vide its order dated the 7th of February, 1968, and it was to the effect:‑ (1‑A) Whether the Court has jurisdiction to try the same? It appears that the parties led evidence on all the issues but issues Nos.1 and 1‑A were decided as preliminary issues and the trial Court vide its judgment dated the 6th of March, 1968, held that the land in question being evacuee property was not pre‑emptible, nor had it jurisdiction to take seisin thereof. Consequently it dismissed the suit and so was the appeal by the impugned judgment.

4. The Courts below relied upon the decision. reported in Babu Ali Muhammad v. Mahmood‑ul‑Hassan P L D 1968 Lah.329 for the view that evacuee property allotted to a claimant was not pre‑emptible on sale by him but this controversy was subsequently settled in Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shaft and others P L D 1971 S C 791 and Haji Sultan Muhammad and another v. Muhammad Siddiq P L D 1973 S C 347 wherein it was authoritatively pronounced that after transfer to a claimant, the property was subject to ordinary laws of the land and, therefore, the sale thereof made by transferee under the Evacuee Laws passed on complete title to the A vendee and was for obvious reasons subject to ordinary law including pre -emption. In face of this decision, Mr. D.M. Awan, Advocate for the respondents vendees did not press his objection. The finding of the trial Court on the point is reversed.

5. Mr. Iftikhar‑ul‑Haq Khan, Advocate for the appellant suggested that the case be remanded to the trial Court for deciding other issues as those were left undecided in view of the finding on the point of jurisdiction of the Civil Court and availability of right of pre‑emption vis‑a‑vis the sale of the land by its allottee. The record shows that the parties consciously produced evidence for and against ail issues. Even though those were not determined h;. the trial Court, yet the evidence of both the parties being available on the record, those: could be B determined by this Court in order to avoid remand of the case which arose out of a sale taking place in the year 1960. With the help of counsel of either side, I have gone through the entire evidence in respect of the issues and, therefore, the same shall be determined in the discussion hereafter.

6. Issue No.2 relating to the appellant's better right was hotly contested. It was based upon three‑pronged qualification, namely, ownership in the Khata, in the 'Patti' and in the estate. The appellant‑plaintiff in his statement as P.W.3 clearly conceded that like him the respondents‑vendees were also owners in the estate. At least this part of the qualification asserted by him fails on his own showing. Likewise, he does not seem to have any ownership in Khatas Nos.2238 and 2263 in dispute because mutation Exh.P.6 by which he acquired title for the first time in this village did not relate to these Khatas. Indeed, his counsel conceded frankly in the course of arguments that he had no ownership therein and, therefore, he may not pre‑empt the same on the ground of his alleged co- ownership. At best he may dwell upon his ownership in the estate but that being equal with the vendees he will not be able to oust them. In regard to the third Khata, namely, No.1570, however, he relied upon his ownership in the 'Patti'. It was located in `Tarf Dera' as disclosed by the Jamabandi for the year 1944‑45 (Exh.P.1). Pedigree table P.9 recorded the appellant to be an owner in 'Patti Dera'. The respondents‑vendees do not find mention therein suggesting that they had no interest in this `Path'. Mr. D.M. Awan, Advocate, seriously contended that the estate was not divided into any `Tarf or 'Patti' for purposes of section 15(c) of the Punjab Pre‑emption Act, 7.913, and the point evoked considerable discussion. He maintained that the expression `Tare 'Patti', or sub‑division of an estate was not a mere term of art but had considerable legal significance in the context of pre‑emption. According to him, my sub‑division arranged for fiscal matters alone would not suffice to confer a right of pre‑emption on owners therein and that conversely it should be a sub‑division based entirely upon the homogeneity of tribes having common descent, homogeneity of areas and also division of the Shamlat. He argued that in absence of any of these attributes of a so‑called 'Patti' or `Tare, it will be deemed to be designed only for fiscal purpose rather than falling within the commonly accepted concept of section 15(c) of the Punjab Pre -emption Act. He observed that the best evidence to find out these attributes in a given case is the `Kaifat Deh' which may have been recorded in the earliest `Bandobast' of the estate and relied upon the one placed here on the record by the appellant though not exhibited. He spelt out of it that it did not divide the estate into sub‑divisions upon any homogeneity either of descent or of area or involved apportionment of Shamlat Deh and that its tenure was based upon `Bhayachara' where possession was the measure of right allowing an owner of one. `Path' to settle in the other by showing his possession over a parcel of land. Though ostensibly this document may not be read as it was not tendered or exhibited formally, yet having been brought on the record by the appellant himself, he may not be allowed to object to its being treated so. He will be bound by its consequences, good or bad. Its reading really supports Mr.Awan in his contention that the tenure of the village was based upon. `Bhayachara' where the measure of right was simple possession. He emphasized the expression in corporated therein revealing that the three `Tarfs', namely, `Charhda', `Dera', and Lehnda' were not watertight exclusive meant only for various tribes on the basis of their homogeneity of descent or of the areas. One could move about irrespective of one's descent here or there and claim title on the measure of possession. The word 'Bhayachara' also denoted that whoever settled there would be treated as brother irrespective of his descent. This `Kaif at' lends unassailable support to the respondents' contention that the sub‑divisions in the village were arranged on the consideration of convenience, amity and accommodation irrespective of one's tribe, descent or the kind of area.

7. Considerable law was cited in support the above propositions. In Perbhu v. Shamsud Din and another A I R (35) 1948 Lah.199 and Muhammad Anwar v. Malik Fazal Efahi 1979 C; L C 222, it was riled that in absence of the. abovementioned three attributes of division of an estate, the arrangement shall be deemed to be only for fiscal purposes rather than pre‑emption. So was the view adopted in Raja Painda Khan and otters v. Sardar Kahan Singh and others A I R 1937 Lah.703 where the tenure being based upon 'Bhayachara' was held to be non‑ancestral or inhomogeneous. Similarly, Ram Partap v. Kishen Singh A I R 1937 Lah. 32 was cited to canvass that 'Kaifiat Deh' was the best index to determine if division of a village was for fiscal purposes or based upon the considerations of homogeneity of descent or area. This case and that of the Perbhu were rightly claimed to be sheet‑anchors to bear out the respondents' contention that the 'Kaifiat Deh' annexed here by the appellant irretrievably disproved his contention that the sub‑divisions were created for the purposes of pre‑emption. This rule was approved in Yaqoob Ali v. Ch. Muhammad Sultan NLR1981SCJ581.

8. Learned counsel for the appellant did not have much to say against the rule propounded above, nor did he cite any authority to the contrary. His own document Exh.P.6 by which he initially purchased land in this `Path' suggested that in getting this land 'bila hissa shamlat' he was not owning it ancestrally or by it, virtue of descent from a common tribe. He was an outsider and being not a part of any homogeneous tribe owning the 'Patti', could not much rely upon its existence for purposes of pre‑emption.

9. The result of above discussion is that issue No.2 is totally held against the appellant/pre‑emptor. In face of this finding the remaining issues will not arise. The appeal is dismissed leaving the parties to bear their own costs throughout. S.Q./S‑228/L Appeal dismissed.