1989 PLP 4989 (MLD)

2. Against the judgment and decree of the trial Court, two appeals, one by the respondents/vendees and the other by the present appellants were tiled in the Court of the District Judge, Sahiwal. In the first appeal, the vendees had challenged the findings of the trial Court on issues Nos. 2 to 8, while in the second appeal, the present appellants had challenged the findings of the Court on issue No. 9‑B. The appeal filed by respondents Nos. 1 to 3, the vendees, was allowed by the learned District Judge, vide judgment and decree dated 17‑11‑1984. The other appeal filed by the appellants was dismissed. Hence, the present R.S.A.

3. Sheikh Asghar Hameed, learned counsel for the appellants raised the following points:‑ (1) That the Appellate Court had wrongly held on issue Nos. 4 and 9‑B that the sale was not pre‑emptible being exempted from pre‑emption; (2) That even if the disputed property was not agricultural land it was village immovable property and could be pre‑empted under section 15 of the Punjab Pre‑emption Act; and (3) That the vendor was full owner of the land measuring about 200 kanals and competent to transfer the same. In respect of the remaining land, he had the right to transfer his interests/rights whatever available to him to a third person. Elaborating his arguments, the learned counsel submitted that in para. 1 of the plaint, it was specifically stated that the disputed land was owned and possessed by Zahid Jan, defendant No. 4, having been permanently granted as compensatory grant (under the Islamabad Oustees Scheme). In the written statement, this para was admitted by the dcfendants/vendees. Therefore, it was not open to them to question the title of defendant No. 4 after the said admission. He further submitted that the notification regarding exemption of colony land issued on 28‑2‑1944 was withdrawn on 2‑3‑1973 and the suit was subsequently filed on 12‑12‑1974. The learned counsel explained that the disputed land fell under two categories; one in which full price had been paid by the allottees and the others in which only 1/10th of the price was paid under the relevant instructions. The land under the first category measured about 200 kanals and the requisite permission under section 19 of the Colonization of the Government Lands Act was granted by the Commissioner for the sale of the said land. Under the second category came 419 kanals of land. Again, permission for sale of the rights in the said land was granted by the Commissioner. He argued that the rights sold were pre‑emptible under the law. In this connection he placed reliance on Syed Abdur Rashid v. Pakistan, through the Secretary, Ministry of Refugees and Rehabilitation, Karachi (P L D 1962 S C 42), Haji Sultan Muhammad and another v. Muhammad Siddiq (P L D 1973 S C 347), Babu Ali Muhammad v. Mahmood‑ul‑Hassan (P L D 1968 Lah. 329), Sher Muhammad and others v. Azmat Ali (P L D 1968 Lah. 1171), Ghulam Khan v. Dullah and another (A I R 1944 Lah. 181), Fateh Muhammad and 5 others v. Mst. Nazir Begum (P L D 1985 Lah. 85), Muhammad Ibrahim v. Hawaldar Muhammad Ilyas and 3 others (1983 C L C 963) and Jalla and others v. Nauranga and others (A I R 1950 Lah. 62).

4. On the other hand, Chaudhry Muhammad Hussain Jahanian, learned counsel for respondents Nos. 1 to 3, contended that the sale was made in favour of the respondents after permission by the Commissioner under the Colonization of Government Lands Act. The said permission was specifically in favour of the respondents and no one could be transposed in their place. In this connection, he placed reliance on Majeed Ahmad etc. v. Yousaf and another (1987 C L C 1891) He further submitted that the land sold was not pre‑emptible as it was not covered by the definition of land given under section 3(1) of the Punjab Pre emption Act read with section 2(3) of the Punjab Alienation of Lands Act. He further submitted that the sale could not be bifurcated. As full price had been paid only in respect of about 200 kanals and not for the remaining land, therefore the disputed land could not be pre‑empted. In this connection, he has placed reliance on Fateh Muhammad and 5 others v. Mst. Nazir Begum (P L D 1983 Lah. 85). According to the learned counsel, the Islamabad Oustees were given only tenancy rights and could not deal with the corpus of land because ownership still vested in the Government.

5. This case was fixed for re‑hearing on 8‑3‑1989 when Mr. Asghar Hamid Advocate; again argued the case on behalf of the appellants and Mirza Manzoor Ahmad, Advocate, argued on behalf of the respondents. The learned counsel for the parties reiterated their arguments and relied on the same judgments which were already cited in the case. The learned counsel for the respondents added that the case in hand pertained to an ordinary tenant on the Government land and that the sale made by him was not pre‑emptible. He pointed out that the documents Exs. P‑4 and P‑5 clearly showed that the Provincial Government was the owner and that Zahid Jan was a tenant on the land. According to the learned counsel, the sale in the cultivation column was not pre‑emptible.

6. I have considered the contentions raised by the learned counsel for the parties and gone through the relevant record. Under section 15 of the Punjab Pre‑emption Act, village immovable property or agricultural land can be pre-empted. The definition of agricultural land in the Punjab Pre‑emption Act is follows: "Agricultural land" shall mean land as defined in the Punjab Alienation Land Act, 1900 (as amended by Act I of 1907) but shall not include the rights of mortgagee whether usufructuary or not in such land". The definition of "land" subsection (3) of section 2 of the Punjab Alienation of Land Act, 1900, reproduced as under:‑ "(3) the expression "land" means land which is not occupied as the site of a building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture, a includes. (a) the sites of buildings and other structures on such land; (b) a share in the profits of an estate or holding; (c) any dues or any fixed percentage of the land‑revenue payable by inferior landowner to a superior landowner: (d) a right to receive rent; (e) any right to water enjoyed by the owner occupier of land as such: (f) any right of occupancy; and (g) all trees standing on such land;" Obviously, according to the above definition, the land does not necessarily mean the tangible property. It covers different rights like occupancy, rights, right to receive rent etc.

7. It is proved by documentary evidence that full price for the land In Khasra Nos. 1 to 13 of square No. 100 measuring 100 Kanals and land in Khasra Nos. 14 to 25 in square No. 110 measuring 97 kanals and 16 marlas, had been paid by the vendor. Thus, they became full owners in view of the rule laid down in Ilam Din v. Muhammad Din PLD 1964 SC 842 and Ali Muhammad and others v. Chief Settlement & Rehabilitation Commissioner and others 1984 SCMR

94. It was held in both the precedents that the proprietary title passes on payment of full price of the land. Hence, the, sale made in respect of the said land was clearly pre‑emptible.

8. The remaining land measuring 490 kanals and 8 marlas falls in second category in respect of which 1/10th price had been deposited. By virtue of the Memo. No. 6432‑74/5217‑CI, dated 30‑10‑1974 (Ex. P.32) the Govt. of the Punjab decided to waive the condition of self‑cultivation by an allottee of land under the Islamabad Oustees Scheme, meaning thereby that the allottees could get the land cultivated through tenants and receive rent from them. Thus, the right to receive rent from the tenants enjoyed by the allottees under the Scheme was covered by the definition of agricultural land given under the Punjab Alienation of Land Act. and was thus pre‑emptible. The appellants had filed the suit for pre‑empting the entire land though it fell under two distinct categories; one in respect of which the entire price had been paid and the other in respect of which only 1/10th of the price had been deposited. However, for purposes of law the said distinction made to difference because the pre‑emptors had come forward to take the whole bargain. Obviously, according to the above definition, the land does not necessarily mean the tangible property. It covers different rights like the occupancy rights, right to receive rent etc.

7. It is proved by documentary evidence that full price for the land in Khasra Nos. 1 to 13 of square No. 100 measuring 100 Kanals and land in Khasra Nos. 14 to 25 in square No. 110 measuring 97 kanals and 16 marlas, had been paid by the vendor. Thus, they became: full owners in view of the rule laid down in Ilam Din v. Muhammad Din PLD 1964 SC 842 and Ali Muhammad and others v. Chief Settlement & Rehabilitation Commissioner and others 1984 SCMR

94. It was held in both the precedents that the proprietary title passes on payment of full price of the land. Hence, the sale made in respect of the said land was clearly pre‑emptible.

8. The remaining land measuring 490 kanals and 8 marlas falls in second category in respect of which 1/10th price had been deposited. By virtue of the Memo. No. 6432‑74/5217‑CI, dated 30‑10‑1974 (Ex. P.32) the Govt. of the Punjab decided to waive the condition of self‑cultivation by an allottee of land under the Islamabad Oustees Scheme, meaning there by that the allottees could get the land cultivated through tenants and receive rent from them. Thus, the right to receive rent from the tenants enjoyed by the allottees under the Scheme was covered by the definition of agricultural land given under the Punjab Alicnation of Land Act and was thus pre‑emptible. The appellants had filed s he suit for pre‑empting the entire land though it fell under two distinct categories; one in respect of which the entire price had been paid and the other in respect of which only 1/10th of the price had been deposited. However, for purposes of law the said distinction made no difference because the pre‑emptors had come forward to take the whole bargain.

9. The vendor Zahid Jan had originally purchased the land from the allottees under the Islamabad Oustees Scheme who held the same under a permanent scheme for agricultural purposes. Zahid Jan could not alienate his rights except with the permission of the Commissioner under section 19 of the Colonization of Government Lands Act. Document Ex. D. 1 clearly proved that the Commissioner accorded the requisite sanction for sale of the disputed land on 22‑11‑1974. The mere fact that the Provincial Government continued to be shown as owner in the ownership column of document Ex. P‑4 (mutation of sale No. 372) and Ex. P‑5 (khasra girdawari) was not sufficient to prove that transfer of rights had taken place and that the sale was not pre‑emptible. Admittedly full price had been paid in respect of 197 kanals and 16 marlas of land, the legal title had passed to the allottees and thereafter to Zahid Jan, the vendor. The Revenue authorities bring about a change in the ownership column only after the execution of the conveyance deed. As regards the remaining land of 419 Kanals and S marlas only 1/10th of the price had been paid and rights in respect of the said land were sold, therefore, no change could be brought about in the ownership column of the revenue papers.

10. In order to maintain the suit for pre‑emption it is not essential in all cases to show that the property is tangible property. Even abstract rights like occupancy tenancy, Muqarridari rights, right to cut trees, or rights to receive on usufructuary or "real property " and pre-emtible. Only rights of a mortagagee whether usufructuary or not have been excluded from the definition of "agricultural land" given in the Punjab pre-emption Act. The pre-emptor merely seeks substitution in place of the vendor. Whatever rights are transferred to the vendees go to the pre‑emptor. In the case of Ghulam Khan v. Dulla and another (A I R 1944 Lah. 181), it was held that Muqarridari rights were benefits arising out of 1 hence "village immovable property" and pre‑emptible under the law rights were held to be pre‑emptible in the case of Fateh Muhammad and 5 others v. Mst. Nazir Begum (P L D 1985 Lah. 85). In the case of Jalla and others v. Nauranga and others (A I R 1950 Lah. 62), a Division Bench of the Lahore High Court had held that the right of a "ghair Dakhilkar Naqdi Guzar" as almost identical with that of a Muqarridar. He could keep his own sub tenants and receive from them half the Batai like a landlord. The right of the "ghair Dakhilkar Naqdi guzar" was held to be "village immovable property". In A Haji Sultan Muhammad and another v. Muhammad Siddiq (P L D 1973 S C 347), it was held that allottees' rights were "real property" and pre‑emptible under the law The allottees have a direct interest in the land and sale made by them even before becoming full owners was pre‑emptible. The same view was expressed in Syed Abdur Rashid v. Pakistan through the Secretary, Ministry of Refugees and Rehabilitation, Karachi and other (P L D 1962 S C 42), Babu Ali Muhammad v. Mahmood‑ul‑Hassan (P L D 1968 Lah. 329) and Radha Kishan and others v. Fakharuddin and others (A I R 1934 Lah. 143).

11. Now I come to the question as to whether the permission granted under section 19 was specifically in favour of a certain person and that the pre‑emptor could not be allowed to be substituted in his place as held in Majeed Ahmad etc. Yousaf another (1987 C L C 1891). No doubt, the Commissioner accords sanction for sale of the colony land or the rights of the allottees in favour of a certain person but it does not mean that the permission accorded makes the law of pre-emption inoperative. The Commissioner exercise his powers under one law an, thereafter cannot resist substitution of the specific vendee by a successful pre emptor under another law. There is nothing in the Colonization of Government Lands Act to show that the sales made with permission of the Commissioner under section 19 of the Colonization of Government Lands Act were exempt from a suit for pre‑emption. In case of Majeed Ahmad etc. v. Yousaf and another (1987 C L C 1891), a comparison was made between the tenancy under the Colonization of Government Lands Act and the occupancy tenancy under the Punjab Tenancy Act, 1887. It was held that the sale of an occupancy tenancy was pre‑emptible but not the sale of tenancy rights held under Act V of 1912. It was further held that the sale of tenancy rights, though made with permission of the Collector under section 19 of the Act, was not pre emptible. A passage from the said judgment maybe reproduced with advantage: "The tenancy rights under Act V of 1912 are held under the statement of conditions, issued under section 10 thereof. Such rights are a grant by the Government and it is for the Government to grant the same to such a person whom it finds eligible for the same or entitled for the same. The Government as such has a right to accept a person as its tenant, and similarly it has a right to refuse to accept a person as its tenant. This is why a restriction on a sale of tenancy rights has been placed under section 19 of the Act. No sale can be made without the permission of the Collector and a sale made without the same is void. The reason is that the Government wants that the tenancy should remain with the person who is eligible or entitled to get and retain the said tenancy and who can fulfil the terms and conditions laid by the Government. Permission under section 19 as such is not automatic and similarly the permission under section 19 ibid is not general but is specific for the person for whom it is made. Accordingly, the Collector has to give the permission not only for a sale but has to give the permission for sale m favour of a specific person. The permission so granted holds good and enures for the benefit of the person in whose favour the permission is given or the person whom the Government accepts as a tenant in place of the original tenant. The permission in the present case, therefore, held good in favour of the appellant and could not hold good for any pre‑emptor and so to say for respondent No.

1. In other words, the permission under section 19 ibid is only for and in favour of the appellant and its benefit cannot 'pass on to respondent No. 1 as there is no such permission in his favour. A vendee cannot purchase such rights without such permission. Similarly a pre emptor cannot step into the shoes of a vendee without such permission. We cannot impose a tenant on the Government by any means including by the passage of a decree for pre‑emption. On that account, too, no, person, howsoever superior right of pre‑emption he may possess, can pre‑empt the sale of tenancy rights held under Act V of 1912." With due respect I am not inclined to agree with the view expressed in Majeed's case. The view that a pre‑emptor cannot step into the shoes of a vendee without permission of the Collector, with due deference, is not based on any provision of the law. The right of the pre‑emptor is merely that of substitution and not of re‑purchase so as to attract the provisions of section 19 of the Act. The pre‑emptor can definitely replace the specific person in whose favour permission to sell was granted by the Commissioner. The overriding consideration in such cases is not the liking or choice of the Government but enforcement of the right guaranteed or secured to a person under the law. The choice of the Government for sale of colony lands has its own limits. The choice made by the Government is final as long as it is not disturbed by resort to the law of pre‑emption. If a person enjoying a right of pre‑emption chooses to disturb the said choice there is nothing in the law to stop him from doing so. The withdrawal of the Notification dated 28‑2‑1944 in the year 1973 is a clear pointer that after the said withdrawal, suits for pre‑emption could be competently filed in respect of sale of colony lands.

12. A similar question arose in the case of Muhammad Ibrahim v. Hawaldar Muhammad Ilyas and 3 others (1983 C L C 963). The said case pertained to sale of agricultural land allotted under the Martial Law Regulation No. 9 of 1959 about the Border Area. It was held as under:‑ "It is an established proposition of law that right of pre‑emption is not a right of re‑purchase but it is a right of substitution and a successful pre emptor is substituted in place of the purchaser. In this view of the matter, prohibition on the sale or purchase of agricultural land in border area by an allottee under Martial Law Regulation No. 9 ibid does not operate against a pre‑emptor who exercises a right under a different law, viz. the Pre‑emption Act. In Abdul Ghafoor and others v. Muhammad Ismail (P L D 1982 S C 364) with reference to restriction contained in paragraph 24 of the Land Reforms Regulation about the sale of land, it has been held that it is more a restriction on the vendor than the vendee. It has further been held that the restriction contained in sub‑para. (4) of Paragraph 24 of the Land Reforms Regulation is about the alienations by sale, mortgage, gift or otherwise and a pre‑emption decree does not fall in the category of alienation by sale, mortgage, gift or otherwise. It is an adjudication by the Court and enforcement of a right under an altogether different law of which notice has been taken in the Regulation by making a supplemental provision with the regard to the right of pre-emption of tenants. The sale m favour of the first vendee having been completed and being in accordance with the law contravening no provision of the Regulation, amounted to a valid sale and the pre‑emptor only substituted the vendee in a sale which but for such substitution remained intact. The result being the product of two statutes, the principle of what cannot be done directly cannot be done indirectly is not attracted, for the statute permits its being done and the one which prohibits does not apply to the situation."

13. The contention of the learned counsel for the respondents that the Islamabad Oustees were given only tenancy rights and could not deal with the corpus of the land and that the rights were not pre‑emptible has no substance. The land is allotted to the Islamabad Oustees for agricultural purposes under a permanent scheme with a definite procedure for conferment of proprietary rights on them. The allottees have a positive interest in the land which in terms of the decision in Abdur Rashid's case (P L D 1962 S C 42) is `real property' and hence pre‑emptible. The same view was expressed by the Full Bench of the Lahore High Court in the case of Babu Ali Muhammad v. Mahmood‑ul‑Hassan (P LV 19681 Lah. 329). In the case of Haji Sultan Muhammad and another v. Muhammad Siddiq (P L D 1973 S C 347), the sale made by the quasi‑ permanent allottees under the Displaced Persons (Land Settlement) Act was held to be pre‑emptible. In the judgment referred to above it was held: "that even section 16 of the Pakistan (Administration of Evacuee Property) Act, in spite of the wide terms in which it is couched, did not intend or constitute any bar to the enforcement of the right of pre emption by a civil suit as the relief sought in the pre‑emption suit is merely the substitution of the pre‑emptor for the vendee without; in any manner, subjecting the property to any legal process such as is contemplated by section 16, nor does it amount to the divesting or dispossession of the Custodian from the property concerned. The corpus of the property remains evacuee and a successful pre‑emption suit in a civil Court would merely bring about a change by substituting the pre-emptor for the vendee as the holder of the rights which were sold to the vendee by the quasi‑permanent allottee." After being substituted in place of the vendee, the pre‑emptor remains' subject to all the conditions governing the original grant. If he fails to abide by the conditions governing the grant, the land can, of course, be cancelled from his name and resumed by the Government. It is not open to the vendee to object to the pre‑emptor's right to get the land on the ground that the vendor's title was imperfect. If the vendees/respondents had agreed to the transfer of rights in their favour, how could they object to the pre‑emptor's right of substitution on the ground of some defect in the vendor's title. It was held in the case of Gullan v. Muhammad Ram7an and another (P L D 1962 B J 33): "It is well known that if a pre‑emptor succeeds in such a suit, he acquires whatever rights vest in the vendee and if the vendee's title is defective the pre‑emptor would get that defective title." It was further held : "Whatever rights are possessed by the vendee, under such a defective sale, would go to the pre‑emptor, if he succeeds and if he is prepared to take that risk, it is not for the vendee to say that his title is defective and that, therefore, that defective title cannot be passed on to the pre- emptor. It may also be mentioned that the respondents had not raised any objection about title of the vendor in the written statement. In para. 1 of the plaint, it was stated that the vendor was the owner of the disputed land. In the written statement, the said para. was admitted to be correct. Hence, it is not open to the respondents to turn round and raise an objection to the vendor's title at this stage.

14. Now, I come to the argument raised by Mirza Manzoor Ahmad, Advocate, at the time of re‑hearing of the appeal that the sale was made in the cultivation column and, hence, not pre‑emptible. A similar question had arisen in the case of Haji Sultan Muhammad and another v. Muhammad Siddiq (P L D 1973 S C 347). In the precedent case, the sale was made by quasi‑permanent allottees and was entered in the cultivation column of the revenue records, implying that the land continued to be evacuee even after alienation. The interest of the quasi‑permanent allottees was held to be heritable and "village immovable property". The said rights were held to be separate entity apart from the corpus of the property which continued to be evacuee property. The said rights were held to be pre‑emptible falling under the category of "village immovable property". Therefore, even if it is held that the rights granted to Islamabad Oustees under the scheme did not fall within the definition of land contained in the Punjab Alienation of Land Act, the said rights have the character of a separate entity and could be termed as "village immovable property". A similar view was taken in the case of Jalla and others v. Nauranga and others (A I R 1950 Lah. 62) by a Division Bench of the Lahore High Court. Looked at, from that angle, the disputed rights of Islamabad Oustees are "village immovable property" and the suit for pre‑empting the sale of rights/interest by the vendor was rightly decreed by the trial Court.

15. The Courts below had concurrently held that the appellants being owners of the estate had superior right of pre‑emption. The said findings were not challenged before me and are, therefore, maintained.

16. In view of the above discussion, the appeal is allowed, the judgment and decree of the learned District Judge is set aside and that of the trial Court dated 4‑6‑1984 is restored. The appellants are allowed a period of three months to deposit the decretal amount (Rs.3,40,800) minus the amount already paid by them, in the trial Court. The parties are left to bear their own costs. H.B.T./R‑160/L Appeal allowed.