NAJEEB Versus SOHBAT ALI
This judgment will dispose of this R . S . A . as also R . S . A . No.915 of 1979, entitled Nejeeb Ali Versus Sohbat Ali and others and R.S.A. No.916 of 1979, entitled Najeeb Ali Versus Mohammad Bashir as the same involve similar questions of fact and law.
2. The land in suit involved in Appeals Nos. 914 and 915 of 1979 was sold on 22‑5‑1974 while the land in suit involved in R.S.A. No. 916 of 1979 was sold on 27‑6‑1974. The pre‑emptor appellant, in all the three appeals, filed three separate suits to pre‑empt the said sales on 19‑5‑1975. Besides resisting the suits on merits the respondents in all the three cases resisted the same also on the ground that the sales in dispute were exempt from pre‑emption under Notification No.2131‑76/1003‑LR‑‑IIi, dated 7‑6‑1976 published in the Punjab Gazette on 1‑7‑1976 as they were the persons "displaced on account of construction of Mangla Dam" and had been certified to be so by the concerned Commissioner. The learned trial Court framed all the issues but issue No.1 relating to the said objection was taken up as a preliminary issue. The learned Civil Judge, Jhelum dismissed the suit vide judgments and decrees dated 4‑3‑1977, holding that the right of pre‑emption, claimed by the pre‑emptor on the ground of being an owner in the estate, had been lost due to the said notification. The appellant filed three appeals which were dismissed by the learned Additional District Judge, Jhelum, vide orders dated 17‑9‑1979, on the same ground. These second appeals have been filed to challenge the said judgments and decrees of the learned Courts below. I have perused the record and have heard the learned counsel for the parties.
3. Notification referred to above runs as follows:‑
"In exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre‑emption Act, 1913 (Punjab Act I of 1913), Board of Revenue, Punjab, is pleased to declare that in the Districts of Campbellpur, Jhelum and Rawalpindi no right of pre‑emption shall exist for a period of 2 years with respect to the sale of Agricultural land not exceeding 12 acres of canal irrigated area or 50 acres of un-irrigated area and other immovable property not exceeding the market value of Rs.10,000 (Ten thousand only), in favour of a person displaced on account of the construction of Mangla Dam and certified to be so displaced by the Commissioner, Mangla Dam Affairs, Azad Government of the State of Jammu and Kashmir.
Nothing in this Notification shall be deemed to affect any decree passed in favour of the pre‑emptors prior to the date, of its publication."
It will be seen that this notification does not apply to cases in which a decree has been passed in favour of the pre‑emptor "prior to the date of its publication". The notification does not say that it will not apply likewise to sales which have taken place before the date of its publication or to suits filed before the date of its publication. If the sales made or the suits filed before the issuance of the said notification were to be saved from the purview of the such sales and suits would have been specifically saved as was done in the case of decrees passed prior to the publication of the notification. This is not an omission in the notification. The intention was to save only the decrees and to apply the notification to all the sales and suits in which no decrees by then had been passed. Only on that ground the said notification applies to the suits from which the second appeals in hand have arisen. As such the suits were rightly dismissed.
4. The learned counsel for the appellant has referred to The State versus Maulvi Muhammad Jamil and others (P L D 1965 SC 681). The said ruling relates to an amendment in a criminal law which of course could not have any retrospective effect and, therefore, it does not apply to the cases in hand. He has also referred to Aslam Sher Khan versus Allah Din (A I R 1939 Lahore 517 and Mst. Bibi Jan and others versus Miss R.A. Monny and another (P L D 1961 SC 69). In fact, the learned counsel for the respondents has also relied on the said two rulings. A reading of the case of 1939 will show that in the body of that notification it had been made clear that it will apply to the land which may be sold, meaning the land which may be sold in future. It was on the basis of wording that it was held that it will not apply to pending cases or to the sales already made. This ruling was discussed in the case of 1961 by Hon'ble the Supreme Court and in that case it was, in fact, held that a notification published during the pendency of a case will also apply to the same and will result in the dismissal of the case. The law enunciated therein is that a pre‑emptor has to have a superior right of pre‑emption not only at the time of sale or at the time of the filing of the suit but also at the time of passing of the decree and as no decree had been passed in that case before the notification concerned was published the suit concerned had to be dismissed and was rightly dismissed. Therefore, the said two cases instead of helping the appellant go a long way to support the case of the respondents. It may be added that the said two rulings were followed also in Asmat versus Modern Estates Ltd. 1983 CLC 2601. In that case the plaint had been ejected and while an R . S. A . was pending in this Court such a notification of exemption was issued. It was held that as no decree had by then been passed the notification will also apply to the pending appeal and the same was consequently dismissed. The latest case on the point is reported as Muhammad Iqbal versus Raja Muhammad Asghar and others (P L D 1986 S C 1). This case related to Mangla Dam oustees and it was held by Hon'ble the Supreme Court that as soon as a notification, like the notification in hand, is issued a pre‑emptor loses his right if no decree in his favour had been passed prior to the issuance of the same and that the said notification operates to non‑suit a pre‑emptor in whose favour no decree has by then been passed. The said case applies to the present case on all fours. Therefore, it is held that the notification in dispute, issued on 7‑6‑1976 and published on 1‑7‑1976, operates to take away the right of pre‑emption of the appellant or so to say the sales in dispute no longer remained pre‑emptible as soon as the said notification was published.
5. In view of my discussion above, the suits were rightly dismissed by the learned trial Court and the appeals were rightly dismissed by the learned appellate Court. As a result the appeals are dismissed, leaving the parties to bear their own costs throughout.
A. A./N‑99/L Appeal dismissed.