1979 PLP 188 (CLC)

Mian Abbas Ahmad for Respondents Nos. 3 and

4. Date of hearing : 5th May 1979. The question involved in another petition (W. P. No. 1684-77) being the same, this order shall dispose of both these petitions.

1. Manzoor Hussain petitioner purchased 29 kanals 8 marlas of land in Chak No. 48/M, Tehsil Lodhran, District Multan, vide registered sale-deed dated 22nd February, 1973. Respondents 3 and 4 filed a suit for its possession by way of pre-emption on 2nd January, 1974.

3. In the other petition Rustam Khan petitioner purchased 36 kanals 16 marlas of land in the same village through mutation No. 70 dated 9th January, 1973. Respondents 3 and 4 therein also filed a suit for its possession by way of pre-emption. The petitioners in both the cases raised preliminary objection that as the area in question was situated in a colony, the respondents had no right of pre-emption in view of the notification dated 28th February, 1944. The case of the respondents was that as the abovesaid notification had been recalled on 2nd March, 1973, the right to pre-empt stood restored to them.

4. The trial Court framed an issue on the point and after evidence and hearing the parties, came to the conclusion that the sales in both the cases were pre-emptible, in view of a judgment of this Court reported as Baj Din and another v. Din Muhammad and 2 others (P L D 1972 Lah. 567) The petitioners filed revision petitions but they were dismissed. The petitioners brought review petitions also but having failed therein also on 9th April, 1977, they have come to this Court in its constitutional jurisdiction.

5. The learned counsel for the petitioners submitted that as the vendee had no right of pre-emption on the date when the sales were effected, they could not come to the Court to get their names substituted or to be placed in the position of the vendees. The learned counsel also relied on two unreported judgments of this Court in Muhammad Ibrahim v. Muhamma Ibrahim R. S. A. 558-75 delivered by Abdul Ghafoor Khan Lodbi, J. and A Ghulam Muhammad v. Mahmood Bux R. S. A. 702-76 delivered by Mushtaq Hussain, J. on 13th October, 1976. It was held by the learned Judges in both the cases that as the pre-emptor had no right of pre-emption on the date of sale, he could not maintain a suit.

6. The learned counsel for the petitioners also relied on Muhammad Suleman etc. v. Abdul Ghani (P L D 1978 S C 210) to say that it is the date of publication of a notification and not its issuance from the concerned office to the Superinten dent Printing Press that determines the effective date. Reliance was again placed on behalf of the respondent on the 1972 judgment referred to above. The learned counsel submitted that as the notification had been issued by the Board of Revenue on a date prior to the two sales the fact that the notification had been published on 2nd March, 1973, would make no difference at all. He, however, could not refer to any law or case-law in support of his plea.

8. After hearing the learned counsel for the parties and going through the case law cited by them I have come to the conclusion that the two Courts below acted without lawful authority in holding that a right of pre-emption was available to the respondents prior to 2nd. March, 1973. Firstly, a notification is effective from the date of its publication as held in the Supreme Court case referred to above. Secondly, a pre-emptor must show that the right of pre-emption did vest in him on the date of sale as well so as to step into shoes of the vendee. I, therefore, respectfully follow the view taken by the two learned Judges in the two unreported cases referred to above and hold that the contesting respondents had no right of pre-emption on the dates of the two sales. For the reasons given above, the impugned orders are declared to without lawful authority and of no legal effect. As their existed two contradictory views on the point, there will be no order as to costs. M. A. K. Petition accepted.