1994 PLP 107 (SCMR)

Ch. Shaukat Ali Saqib, Advocate instructed by Muhammad Aslam Chaudhry, Advocate‑on‑Record for Appellant. Muzammal Khan, Advocate instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondent. Date of hearing: 10th November, 1992. SHAFIUR RAHMAN, J: ‑‑Leave to appeal was granted to the vendee in a pre‑emption matter to examine whether the High Court was legally justified in deciding the" civil "revision on the basis of the amendment in law which was not in issue before the Courts below and neither the petitioner was given any opportunity on the said amendment of law".

2. The appellant purchased rights of occupancy tenant to the extent of 7/24th share measuring 10 Kanals 18 Marlas out of a total area of 37 Kanals 7 Marlas in Khatauni No. 599 vide Mutation No.323 dated 16‑8‑1982 from one Muhammad Hussain, son of Jangu of Village Maasu, Tehsil and District Sheikhupura. A suit for pre‑emption was filed on 4‑10‑1982 by the brother of the vendor. The. suit was contested mainly on the ground that the sale was of occupancy rights in the land and that it was to the landlord who appended to be a joint owner of land in dispute. The trial Court held the sale to be of occupancy tenancy rights and hence pre‑emptible. It also held that the sale was not to the landlord but to another joint owner who was not the landlord. The plaintiff had for this reason a superior right of pre‑emption. It decreed the suit.

3. An appeal was taken to the District Judge which failed. Finally a revision petition was filed in the High Court wherein for the first time notice was taken of section 114 of the Punjab Tenancy Act enforced from 4th February, 1952. It was found that the occupancy rights in land as such were extinguished and such tenants became owners thereof. The argument of the appellant that a new ground in a civil revision could not be made out without proper notice to the other party was dealt with as hereunder:‑‑ "Learned counsel for respondent further submitted that at no stage it was urged that Muhammad Hussain vendor had become owner of the land by operation of law. I . am afraid, the argument is not tenable inasmuch as it is the duty of the Court to apply the law which becomes available to the facts proved on the record. I derive support for this view from judgment reported as Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690)."

4. The learned counsel for the appellant (Ch. Shaukat Ali Saqib) has reiterated the contention that an altogether new point even of law could not be made the basis for decision. He has then proceeded to demonstrate from the record that the occupancy tenant could not have become the owner because he was liable to pay Batai to the extent of half and in that context the pre‑emption decree should have extended only to 1/2 and not more.

5. So far as the first contention is concerned we find that the Court was, as has been observed by the High Court, under a duty to show awareness of the law of the land and to apply it irrespective whether the parties and their counsel invoked it or not. The duty of the Judge in such a situation has been indicated in Muhammad Sarwar v. The State (PLD 1969 SC 278) in the following words at page 292:‑‑ "It appears that the learned Judges were not properly advised, but it falls to be said that there is a well‑known adage that a Judge must wear all the laws of the country on the sleeve of his robe."

6. We have allowed full hearing to the learned counsel for the appellant on the law taken note of and applied by the High Court and taken note of in the leave granting order. On no legal ground the sale of occupancy rights in land in 1982 can be countenanced.

7. As regards the extent to which the pre‑emption decree could extend, the right of pre‑emption being the right of substitution, to whatever is the vendee entitled under the sale to the same extent would the pre‑emptor be entitled. The right of pre‑emptor being one of substitution, he acquires no better right than what the transferor is capable of passing on to the vendee. For, establishing the title of the vendee he has to take recourse to proceedings if he can in law do so because the record that has been filed in this trial is not sufficient to record a finding with regard to the extent of the interest in the land acquired by the occupancy tenant after termination of the occupancy tenancy. With this observation, the appeal fails and is hereby dismissed. AA./Q‑50/S Appeal dismissed.