ABDUL MAJI Versus DORA BAZ KHAN

Hayat Muhammad respondent filed a suit against Abdul Majid appellant for possession through pre-emption of land measuring 7 kanals (details of which appear in the plaint), situate in the area of Chakwal, on payment of Rs. 700.00 or the market price to be fixed by the Court, on the ground that rte being the real brother of Maula Bakhsh, the vendor in the case, has a: preferential right of pre-emption as against the vendee. The pleas of estoppel by conduct, the suit land being urban immovable property, collusion, etc., were rejected by the trial Court and the suit was decreed, conditional on payment of Rs. 800.00 the ostensible sale price, which amount was conceded by the pre-emptor at the time of arguments to be correct and having been paid. The vendee appealed and during the pendency of the appeal an application was moved by him under Order VI, rule 17, C. P. C. seeking amendment of the written statement to take up the plea that Hayat Muhammad respondent was no longer an owner in the estate as he had lost his right of pre-emption because of para. 25 of the Martial Law Regulation No. 64. The learned District Judge without having formally allowed the amendment has examined and repelled the plea taken. As a result the appeal has been dismissed and the vendee has come up to this Court in second appeal.

2. It was firstly argued that because Hayat Muhammad had on the 15th of August 1959 sold his 3/8th share in the inheritance from his father Pir Bakhsh, the only land that Hayat Muhammad held in the estate, to one Torabaz Khan, he lost the right of pre-emption as a co-sharer in the Khata which he did enjoy on the date of sale, namely, the 30th of May 1959, and the suit should have been dismissed by the Courts below. However, when it was pointed out to learned counsel for the appellant that the preferential right of pre-emption was claimed not only as a co-sharer in the Khata but also as an heir of the vendor Maula Bakhsh under section 15(b),. thirdly of the Punjab Pre-emption Act, learned counsel did not press the argument further.

3. It is next contended that the decree for possession through pre- emption will defeat the very provisions of para. 25(4) of the Martial Law Regulation No. 64 because that which is not permitted to be done directly, will be allowed by the Court indirectly and Abdul Majid appellant wilt` be transferring under decree of the Court his holding, which is less than a subsistence holding, to Hayat Muhammad who is no longer an owner in the village or deh where the land is situate. It is argued on the basis of some observations in Thakur Madho Singh and another v. Lt. James R. R. Skinner' and another (A I R 1941 Lah. 433), that just as a non-agriculturist was not allowed to acquire land through pre-emption, on parity of reasoning the right of pre-emption could not be permitted to be exercised to frustrate the provisions of para. 25(4) of the Martial Law Regulation No. 64.

4. To appreciate the arguments of learned counsel, para. 25 of the Martial Law Regulation No. 64 may be reproduced in extenso:

"25. Restrictions on alienation of Holdings.-(1) No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of economic holding;

Provided that such a person may alienate his entire holding.

(2) No person owning an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding Provided that such a person may alienate his entire holding.

(3) No person owning more than the area of a subsistence holding but less than economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area less than the area of subsistence holding;

Provided that such a person may alienate his entire holding.

(4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding;

Provided that he may alienate his entire holding or in the case of a holding which is less than a subsistence holding sell any part of his holding to other owners of the same village, deh or Mauza.

(5) Any alienation made in contravention of the provisions of this paragraph shall be void.

(6) Nothing in this paragraph shall apply to land, whether cultivable or other, which is bona fide required for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the orders of the Deputy Commis sioner."

A close study of Thakur Madho Singh and another v. Lt. James R. R. Skinner and another, would show that while examining the scope and object of section 14 of the Punjab Pre-emption Act, the learned Judges of the Full Bench observed that "section 14 merely prohibits a person other than a member of an agricultural tribe in the same group of agricultural tribes as the vendor to enjoy a right of pre-emption in respect of agricultural land sold by a member of an agricultural tribe. In other words, this provision is merely intended to safeguard that no non-agriculturist can by means of pre-emption acquire any land which he could not do under the provisions of the Land Alienation Act. If section 14 of the Punjab Pre-emption Act is held to have been so worded as to exclude a non-agriculturist from acquiring land which he could not get under the Punjab Alienation of Land Act, it does not mean that the Punjab Alienation of Land Act has been held to override the provisions of the Punjab Pre-emption Act. The decision proceeded on the interpretation of section 14 of the Punjab Pre-emption Act and is not an authority for the proposition propounded by learned counsel for the appellant. The right oft pre-emption is a right of substitution and on its plain language the provisions; of para. 25(4) of the Martial Law Regulation No. 64 are not attracted as they vendee judgment-debtor does not alienate by sale, mortgage, gift or otherwise; any part of his holding.

5. For the reasons above, I hold in agreement with the learned District Judge that the appellant has no case. The Appeal fails and is dismissed, leaving the parties to bear their own costs.

K. B. A. Appeal dismissed.