MUHAMMAD DIN Versus FAQIR MUHAMMAD
This Regular Second Appeal arising out of a suit for pre‑emption has been preferred by the pre‑emptor against the judgment /decree dated the 15th of February, 1971, of the learned Additional District Judge, Sialkot, whereby reversing the decision of the Court of first instance, the suit was dismissed with costs.
2. The appellant Mohammad Din sought to pre‑empt the sale of land in question made in favour of the respondents‑vendees by a registered sale‑deed, dated the 20th of February, 1967, on two qualifications, namely, (i) that he was a collateral of the vendors and (11) an owner in the 'Taraf' and 'Patti' of the estate where the land was situate. He maintained that the respondents‑vendees did not enjoy any such qualification. He questioned the ostensible price of Rs.5,500 observing that, in fact, only a sum of Rs.4,285 was fixed and paid genuinely.
3. The suit was resisted by the respondents denying the appellant's better right of pre‑emption and affirming the payment of the ostensible price in good faith. They pleaded bar of Martial Law Regulation No. 64 as also limitation.
4. Appropriate issues were framed by the trial Court which ultimately decreed the suit. In appeal, however, a different view was taken in regard to the appellant's preferential right and the suit was dismissed.
5. The trial Court decreed the suit mainly because in its appreciation, the Patwari D.W.3 quite adequately pointed' out that the appellant /pre‑emptor was an owner in the 'Taraf'/Patti Nawan' where the land in dispute was situate but the respondent vendees had no holding therein. They, of course, owned land in 'Patti Bhatti' which was quite different from the one where the land in question was situate. The lower appellate Court differed with 'this view on the ground that it was not established if those 'Pattis' were created for purposes of pre‑emption. A perusal of section 15(c) (secondly) of the Punjab Pre‑emption Act, 1913, does not contemplate any such condition as was in the mind of the learned Additional District Judge. If the Revenue record disclosed that there were 'Tarafs' or 'Pattis' in an estate whether or not for pre‑emption purposes, those have to be accepted as sub‑units and an owner therein will have to be allowed right of pre‑emption vis‑a‑vis a non‑owner. Ordinarily these 'Pattis' or sub‑divisions are made for fiscal purposes but in terms of the above‑mentioned provision of law, the purpose for which those are created is not much relevant. All that is necessary is to see whether those existed de facto and were shown as such in the Revenue record. Keeping this criteria in view, the respondent s‑vendees' ownership in a different 'Patti' would not help them save the land from the appellant's better right of pre‑emption but here, there is a little different angle from which things may be looked at. The Patwari indicated that the lands in this estate were consolidated in 1965‑66. The 'Missal Haqiyyat Ishtamal' of 1965‑66 (Exh.P.6) will be relevant to see if those 'Pattis' really survived the consolidation operations. A perusal thereof discloses that those were not retained. This is the distinction between this 'Jamabandi' and the 'Jamabandis' P.1 and P.2 of the same year relating to the period preceding the finalization of consolidation of holdings. The sale in question was transacted on the 20th of February, 1967, when obviously the 'Missal Haqiyyat Ishtamal' P.6 had already been prepared and enforced. It did not recognize any more the 'Pattis' or the 'Tarafs' in the estate and, therefore, the appellant /pre‑emptor could not claim pre‑emption on the basis of a status which though he was enjoying earlier yet was totally annihilated by the process of consolidation finalized prior to the impugned sale. Although the impugned judgment does not discuss this aspect in detail but the evidence on the record adequately bears it out. The 'Missal Haqiyyat Ishtamal' P.6 was the appellant's own document and he cannot get rid of its evil effects. The Patwari's statement regarding the presence of 'Tarafs' and 'Pattis' even after consolidation was really not corroborated by the consolidation record. Consequently the appellant could not succeed on this qualification.
6. It was not much disputed that the respondents were as well owners in the estate just as the appellant was. They were equal in the matter and the appellant could not oust the respondents. Mr. Abdullah Bajwa for the appellant tried to seek support from the pedigree tables Exhs. P.3 and P.4 but those did not connect the appellant with the vendors, and that is why it was ignored by the two courts below.
7. There is no substance in the R.S.A. and the same is dismissed leaving the parties to bear their own costs. The record be sent back.
S.Q./M‑446/L Appeal dismissed.