1989 PLP 1051 (MLD)

S.M. Zafarullah Salari for Petitioner. Manzoor Elahi Qureshi for Respondent. Date of hearing: 12th November, 1988. This is a revision petition of Sultam Ahmad defendant against the judgment and decree, dated 29‑11‑1984 of learned District Judge Islamabad reversing judgment of the learned trial Judge dated 2‑10‑1983 and decreeing the pre‑emption suit against him. Facts are that on 25‑10‑1973, 12 Kanals of land, situate in the revenue estate of Jhangi Syadan. Tehsil Rawalpindi was sold by Faqir Muhammad to Sultan Ahmad for Rs.6,000 Ghulam Nabi the son of the vendor brought a suit for possession of the aforesaid land by pre‑emption. The suit was resisted by the vendee on number of grounds such as that the land was situated within the Cantonment limits and was not pre‑emptible; that plaintiff was estopped to sue and the right to pre‑empt did not exist as land in dispute was comprised in the tenancy of defendant; that the defendant was a displaced person on account of construction of Capital at Islamabad and sale in his favour was exempt from pre‑emption on account of notification issued by Board of Revenue on 15‑6‑1976. The trial Court on consideration of evidence led in the case found that plaintiff had preferential right; estoppel was not proved and sale of land to the defendant who was proved to be a displaced person was held not to be pre emptible. In appeal, learned District Judge disagreed with the learned trial Judge holding that as period of two years specified in the notification had run out during the trial of the suit, it did not assist the defendant and consequent upon this conclusion decreed the pre‑emption suit to the plaintiff. From the above, it is manifest that the only material point surviving for decision in the civil revision is about the effect of notification upon the rights of the parties. It is common ground that the defendant vendee was a displaced person on account of construction of Capital at Islamabad and was certified to be so displaced by capital Development Authority, Islamabad. No fault was found with certificate Exh.D.1 and other documents and evidence led to show that the land and the residential property owned by the defendant in village Sheikhpur were acquired by Capital Development Authority. It is agreed that notification applied to pre‑empted sale but the argument raised was that since the notification was only for a period of two years and its life was not coterminous with the suit in the trial Court it could not be pressed in aid by the defendant for his success. It was urged that if the pre‑emption suit was decided within the period of two years viz. 15‑6‑1976 to 15‑6‑1978 plaintiff could not succeed. Since this event did not take place, plaintiff's preference was not affected. In the opinion of the learned counsel, plaintiff maintained his preference at all the material stages from the date of the sale to the date of decision by the trial Court and any temporary set back at an intermediate stage of the trial of this suit was inconsequential. For proper decision of the point, some dates are relevant. Sale took place on 25 10‑1973. Pre‑emption suit was instituted on 5‑9‑1974. Notification under section 8(2) Punjab Pre‑emption Act 1913 was issued by Board of Revenue on 15‑6‑1976. It was gazetted on 21‑6‑1976. For facility of reference, notification is reproduced:‑ "No.2771‑76/1060‑LR‑III.‑‑In exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre‑emption Act, 1913 (Punjab Act I of 1913), the Board of Revenue is pleased to declare that in the districts of Campbelpur, Rawalpindi and Jhelum no right of pre‑emption shall exist, for a period of two years with respect to the sale of Agricultural land not exceeding 12 1/2 Acres of Canal irrigated area or 50 Acres of unirrigated area and other immovable property not exceeding the market value of Rs.10,000 (ten thousand only) in favour of a person displaced on account of construction of the Capital at Islamabad and certified to be so displaced by the Capital Development Authority, Islamabad. Nothing in this notification shall be deemed to affect any decree passed in favour of the pre‑emptors prior to the date of its publication." There is no denying the fact that the Board of Revenue could by a proper notification declare that no right of pre‑emption shall exist with regard to any land or property or class of land or property or in respect of a particular sale or sales and also limit its exercise as may be specified in the said notification. In the instant case, Board of Revenue had in clear terms manifested its intention that no right of pre‑emption shall exist in respect of sale of agricultural land or village immovable property of particular area and sale price in favour of a both prospectively as well as retrospectively. In other words, it affected the sales made prior to the date of issue of notification as also the sales made subsequent to it for a period of two year, hilt on it,, plain and clear language, it did not touch the decrees already passed. With the issue of notification, right of pre‑emption ceased to exist and came to an end. In my opinion, notification sounded a death knell to pre‑emption right claimed in respect of the sale of the land in dispute to defendant who was a displaced person and was also certified to be so by the Capital Development Authority. Defendant fulfilled both the qualifications necessary to attract the application of the notification. He was a displaced person and the designated Authority also gave him the certificate of displacement. On fulfilment of these two requirements, he was clearly entitled to claim exemption from pre‑emption of the sale in his favour. The notification applied on the date it came in force and extinguished pre‑emption in respect of the sale of land or property of particular category and value made in favour of specified person or persons. Expiry of the notification during the trial of the suit does not resurrect a dead right. Once it is dead no life can be put into it. The argument that period given in the notification must run with the trial of the suit is totally unsound. Plaintiff was obliged to maintain his preference from the date of the sale to the date of the decision of the suit uninterrupted by any supervening event. If at any intermediate stage of the trial of the pre‑emption suit, superior right claimed by the plaintiff suffered a total eclipse, it goes forever and cannot be resuscitated. In my view, learned appellate Judge did not properly comprehend terms of the notification and failed to give full effect to its expression of clear intent. Case of Muhammad Iqbal v. Raja Muhammad Asghar and others PLD 1986 SC 1 is in point and assists the decision. On this score, decision rendered by learned Judge below cannot be upheld it is set aside and that of the trial Court is restored and affirmed. In result, pre‑emption suit brought by the plaintiff against the defendants petitioners stands dismissed but no order as to costs. Records be returned. H.B.T./S‑367/L Petition accepted.