2004 PLP 984 (SCMR)

KHALIL-UR-REHMAN RAMDAY, J.

One Ghulama who was the father of the present petitioners owned 800 Kanals of land in Mauza Nausher Thal Kalan of Tehsil Layyah which land was acquired under section 36 of the Thal Development Act of 1949 vide notifications dated 4-4-1951 and 16-11-1951. Through a registered sale-deed dated 22-1-1953, the said Ghulama sold the said 800 Kanals of land to Fateh Muhammad and to Yousaf, Umer Din, Shehab Din and Jamal Din who are presently represented by their heirs. The petitioners herein being the sons of Ghulama vendor pre-empted the said sale and filed a suit for the purpose on 20-1-1954. Through an order dated 8-2-1955, the learned Trial Judge "rejected the suit" but in appeal, the learned District Judge, through an order dated 17-1-1957, remanded the case back to the learned Trial Judge. This order was further challenged in the High Court through SAO No. 1 of 1957 which was dismissed through an order dated 29-1-1958. As a result of the trial held in pursuance of the above mentioned remand, the suit was decreed on 30-6-1967 but consequent upon the acceptance of the appeal by the First Appellate Court through a judgment dated 2-5-1969, the said suit was dismissed. The said appellate judgment was questioned before the High Court through R.S.A. No.648 of 1969 which appeal failed through a judgment dated 4-6-1999 of the Lahore High Court. Hence this petition by the pre empting sons.

2. The crucial question in this litigation which has gone on for almost half a century is whether a right of pre-emption existed with respect to the transaction in question regarding the land in issue.

3. Mentioning the basic principle relating to the right of pre emption that in order for a pre-emptor to succeed, he must successfully establish his right of pre-emption on the day of sale; on the day of filing of the suit pre-empting the sale and its continued subsistence till the date of the decree, the High Court came to the conclusion that a right of pre-emption in the present case did accrue to the petitioners at the time of the sale in question i.e. on 22-1-1953; that the said right did subsist even on the date of the filing of the suit pre-empting the said sale i.e. on 20-1-1954 but that the said right got extinguished during the pendency of the suit i.e. on 14-7-1954 when compensation, in part, was paid to the owner of the land in issue in pursuance of the acquisition of, the said' land under section 36 of the Thal Development Act of 1949 and finally that the suit of the petitioners had therefore, been rightly dismissed.

4. In reaching this conclusion, the learned Single Judge of the High Court referred to section 36 of the T.D. Act of 1949 which prescribed that after issuance of the notification under the said section and after taking possession of the land sought to be acquired and after payment of the compensation, the land would vest absolutely in the Thal Development Authority. As has been noticed above the possession of the suit land had been taken over by the Authority on 30-11-1951 and a part of the compensation was paid on 14-7-1954. The learned Judge thus concluded that on 14-7-1954 the land in question got vested in the Authority. Thereafter referring to the provisions of sections 4, 20-A, 24, 25 and 26 of the said Act of 1949, the High Court held that the vesting of the land in the Authority, as above-noticed, was only for the purposes of management of the same and that the title of the said land in fact got vested in the Government of Punjab.

5. The learned Judge in the High Court then noticed the effect of a notification dated 15-3-1952 issued under section 4 of the Colonization of Government Land (Punjab) Act of 1912 whereby all the provisions of the said Act of 1912 had been made applicable to all the lands in District Muzaffargarh which vested in the Crown and the effect of the notification dated 28-2-1944 issued under section 8(2) of the Punjab Pre emption Act of 1913 which provided that no right of pre-emption was to exist in any local area to which the Colonization Act of Govt. land (Punjab), Act, 1912 had been made applicable and found that as from 14-7-1954 when compensation was paid in part to the owner of the land in question, the right of pre-emption seized to exist vis-a-vis the said land. This happened while the suit of the pre-emptor-petitioners was still pending.

6. The learned counsel for the petitioners was heard at some length and failed to show any factual or legal infirmity in the above-noticed conclusions reached by the learned High Court or the reasons offered therefor.

7. Referring to section 21(2)(i) of the Thal Development Act of 1949 the learned counsel for the petitioner submitted that an area of at least 486 Kanals of the suit land fell outside the irrigation boundaries of the Thal Canal and was consequently not liable to be acquired with the result that the said piece of land could not vest in the Government of Punjab and would thus be pre-emptible. The learned counsel could not show that this question was ever urged before the High Court or that any foundation had been laid in record for canvassing the said question before this Court. In this view of the matter the said submission cannot be permitted to be urged, for the first time, before this Court and is of no assistance to the petitioners in the present case.

8. The learned High Court had also taken notice of the submissions of the pre-emptors regarding the invalidity of the acquisition in question and also of the submission relating to the right of return and had rightly repelled the said contentions.

9. In view of what has been noticed above, we find no merit in this petition which is accordingly dismissed. Leave refused. S.A.K./A-288/S Leave refused.