FAZAL DIN Versus SADIQ KHAN

This second appeal is directed against the judgment and decree dated 11‑6‑1973 whereby the learned Additional District Judge, Kasur set aside the partial decree of the trial Court and decreed in toto the respondent's suit for pre‑emption on payment of Rs. 19,000.

2. 81 kanals 1 marla of agricultural land which; was the subject matter of the instant sale was comprised of two categories, one measuring 55 knals 1 marla transferred to Abdul Aziz, deceased vendor against his claim, and the other measuring 26 kanals allotted to him, surrendered and re‑purchased under the provisions of Martial Law Regulation 89‑91 of 1961. The sale had taken place through a 'registered sate deed (Exh. D. 1), dated 22‑1‑1964 in favour of Fazal Din appellant and pre‑empted by Sadiq Khan respondent by the instant suit filed on 2t‑1‑1965 on the ground of his being an owner of the estate.

3. The suit was resisted and after framing additional issues and recording necessary evidence, the trial Court decreed the suit to the extent of 26 kanals of land on payment of proportionate sale‑price on the ground that the sale of land having not formed part of the compensation pool was pre‑emptible, whereas the one transferred under the Displaced Persons (Land Settlement) Act (XLVII of 1958) had not yet gone out of the compensation pool and was thus not subject to pre‑emption. In appeal the learned Additional District Judge took the view differently and found that. the entire land was pre therefore decreed the pre‑emptor's suit in respect of the total emptible. He, land measuring 81 kanals 1 marla on payment of Rs. 19,000.

4. In view of the pronouncement made in Sultan Muhammad v. Muhammad Siddiq (1) it is settled that the rights of allottees who were merely granted temporary allotment do not entail any problem, because the temporary allotment does not at all create any right or interest in the temporary allottee in the lands allotted to them, and this temporary allotment does not therefore fall in any of the categories of the properties mentioned, in section 4 of the Punjab Pre‑emption Act (I of 1913). The permanent transferees are conferred full ownership right under the Displaced Persons (Land Settlement) Act, 1958, and therefore. the sales made by them are subject to the right of pre‑emption being sales of agricultural land as described in section 4 of the Punjab Pre‑emption Act. However it has been discussed at length that the nature of the rights of the confirmed or quasi‑permanent allottees of the second intervening stage and the exercise of the right of pre‑emption attaching to the sale of the rights possessed by these allottees has presented some difficulty involving a judicial conflict of opinion. It is, therefore, decisively held that the allottees in accordance with clause 14 of Chapter II, Part I of the Scheme were permitted to transfer by sale, exchange, gift, will mortgage by private contract, but even so the land continued to remain evacuee property through out and had to be utilized only for purposes approved by the Rehabilitation authorities and it could be resumed if the conditions * were not fulfilled by the allottee. Under sub‑clause (2) of the said clause such alienation could only be entered in the cultivation column of the revenue records, the implication being that the land continued to be evacuee after such alienation. According to the decision in Syed Abdul Rashid v. Pakistan (2) an allottee does not become the absolute owner of the land, but he does acquire an interest in the land which in terms of that decision is "real property". The confirmed allottee become clothed with the rights of "at least an occupancy tenant". For purposes of pre‑emption occupancy tenant is included in the terms "land" as defined in section 2 (3) (f ) of the Punjab Land Alienation Act, which definition has been adopted by the Pre‑emption Act. Sale as defined in section 3 (5) of the Pre‑emption Act does not include the creation of an occupancy tenancy by the landlord, but the sale of occupancy rights is pre‑emptible under the Act. It is held that the bar on maintainability of suits imposed by section 16 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) or section 6 of the Land Settlement Act is no longer applicable to such land. These provisions did not intend to 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. It was held that 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.

(1) P L D 1973 S‑C 347 (2) P L6 D 1962 S C 42

5. This being the position, it is immaterial whether the land is subject to instalments or is in arrears of payment of a part of the price. The quasi -permanent allottee holds the land as transferee and the outstanding price is merely a charge over the property which does not hinder the substitution of rights. The learned Additional District Judge was, therefore, justified in holding that there was no provision in the Martial Law Regulations 85‑91, which had the effect of excluding a right of pre‑emption or instituting a suit in the civil Court. The suit in respect of whole of the land was, therefore, rightly decreed.

For the reasons aforementinned there is no force in the appeal and the same is dismissed, however, with no order as to costs. s. A. a. Appeal dismissed.