1974 PLP 147 (SCMR)

(1) Whether an evacuee property sold in the year 1960, when it ceased to be evacuee property after its acquisition under section 4 of the Displaced Persons (Land Settlement) Act, 1958 was pre‑emptible; and (2) Whether e' suit for pre‑emption was barred under section 6 or 25 of the Act. The facts, necessary for the decision of the case are that the land in suit was confirmed in the name of the vendor Rana Hamid Khan under the Rehabilitation Settlement Scheme. He sold the same in favour of the present appellant Fazal Hussain, y means of a mutation of sale attested on the 6th of August 1960. His widow Mst. Musharraf Sultana, respondent in the present appeal, filed a suit for pre‑emption on 22‑i2‑1960. The suit was decreed by the learned. Senior Civil Judge, Jhelum on the 7th of December 1961. On Fazal Husfain's appeal the learned District Judge, Jhelum, held that the sale was,, not pre‑emptible. In second appeal, the High Court has taken the view that the suit for pre‑emption was not barred by section 16 of Act XII of 1957 as the property had ceased to be evacuee property on its acquisition by the notification of the 15th of April 1959, issued under section 4 of the Displaced Persons (Land Settlement) Act, 1958. The High Court has further held that the suit was also not barred under section 25 of the Act, as that section ousts the jurisdiction of the civil Courts only with regard to the matters which are within the purview of the authorities created by or under the Act. Finally, the High Court has also observed that the suit was not hit by the bar contained in section 6 of the Act. On this view Court has remanded the appeal to the learned District Judge for a decision on merits. The whole question of the maintainability of pre‑emption suit in respect of sales by the vendors of their rights and interests to evacuee lands held by them as temporary allottees, confirmed allottees or permanent transferees has been discussed at length and decided by this Court in a Consolidated Judg ment delivered in a large number of appeals, reported as Sultan Muhammad v. Muhammad Siddiq (P L D 1973 S C 347). It has been held that as temporary allotment does not at all create any right or interest in the temporary allottees in the lands allot ted to them, the allotment being merely a grant, the rights sold do not fall in any of the categories of the properties mentioned in section 4 of the Pre‑emption Act, and, therefore, the question of pre‑emption in respect of such sales is irrelevant. However, in the case of confirmed allottees the rights enjoyed by them under the Displaced Persons (Land Settlement) Act and the Rehabilitation Settlement Scheme are real property and fall in the category of village immovable property as defined in the Pre emption Act, and, therefore, sales by such confirmed allottees are liable to pre‑emption. It has further been held that after the acquisition of evacuee agricultural lands by the Central Government by a notification issued in 1959 under section 4 (2) of the Displaced Persons (Land Settlement) Act, the lands have ceased to be evacuee property and have vested in the Central Government, and, therefore, the bar on the maintainability of suits imposed by section 16 of the (Pakistan Administra tion of Evacuee Property) Act, 1957, was no longer applicable to such lands. The Court has also held that section 6 of the Displaced Persons (Land Settlement) Act also does not constitute a bar to pre‑emption in respect of sale of land in the compensation pool, because the pre‑emptor in such a case does not proceed against land in the compensation pool for any claim but wants to be substituted in place of the vendee. As regards sales by the permanent transferees, on whom full owner ship rights have been conferred under section 16 of the Displaced Persons (Land Settlement) Act, 1958, the Court has found that such sales are clearly pre‑emptible as any other sales of agricultural property. The effect and scope of section 25 of the Displaced Persons (Land Settlement) Act, was not examined in this case, but we have no hesitation in agreeing with the interpretation placed thereon by the High Court, viz., that the jurisdiction of the civil Courts and other authorities is excluded by this section only in regard to matters which the Central Government or an officer appointed under the Act is empowered by or under this Act to determine. As questions of pre‑emption did not fall within the purview of the functions allotted under the Act, section 25 would not be a bar to the maintainability of a pre‑emption suit. In the light of these observations and the decision of this Court referred to above, the view taken by the High Court regarding the maintainability of the suit appears to be correct. No justification is, therefore, made out for our interference in the matter. It was, however, submitted by Sh. Abdul Rashid, the learned counsel for the appellant, that there was no finding by any of the Courts below as regards the nature of the rights enjoyed by the vendor in the property in suit, and it should, therefore, be made clear that it would be open to the appellant to show that at the time of the sale the vendor was only a temporary allottee of the land, with the result that the sale was not pre emptible, as the rights enjoyed by the vendor were merely in the nature of a grant and did not fall in any of the categories enumerated in sections 4 and 6 of the Punjab Pre‑emption Act. We regret, we cannot accept this submission. The question was specifically dealt with by the trial Court under issue No. 7 and the whole discussion Is on the basis that the vendor was a quasi‑permanent allottee, and it was for this reason that the rights sold by him were held to be pre‑emptible. When the matter came up in appeal before the learned District Judge of Jhelum, the main points urged on behalf of the appellant, Fazal Hussain, were that the pre‑emptor did not have a superior right of pre‑emption, that the sale was bit by para. 25 of the Martial Law Regulation No. 64, and that the transaction was not pre‑emptible as it was a sale by a provisional transferee. It will be seen that the appellant did not contend at that stage that the vendor was only a temporary allottee of the land. The same position obtained in the High Court, and the entire discussion has proceeded on the basis that the vendor was a confirmed allottee, although not a permanent transferee. In this state of the record we cannot agree that it is still open to the appellant to urge that the sale was not pre‑emptible on account of the vendor being only a temporary allottee of the land. For the foregoing reasons, the appeal fails and is hereby dismissed, but in view of the nature of the legal questions involved, we leave the parties to bear their own costs. Appeal dismissed.