Syed SARWAR SHAH Versus BASHIR

The suit filed by the appellant for possession of land in dispute through pre- emption on the ground that he was owner of land in the same khewat was dismissed by the learned trial Court by judgment and decree dated 17‑6‑1965 on the short ground that the land in dispute having not been permanently settled under the settlement laws was not pre‑emptible. This finding was upheld by the learned lower appellate Court on appeal filed by the appellant which was dismissed through judgment and decree dated 26‑2‑1966 which have been challenged in this appeal.

2. Learned counsel for the appellant argued that the appellant has been non‑suited merely on the ground‑that the suit land shall be deemed to have been permanently settled on 24‑12‑1964 under Rule 7 of the Displaced Persons (Land Settlement) Rules, 1958 whereas the sale of this land was made on 22‑3‑1963, as such, it was not pre‑emptible. Learned counsel for the appellant also argued that this finding is contrary to what the Supreme Court has held in the judgment reported as Haji Sultan Muhammad and another V. Muhammad Siddiq (P L D 1973 S C 347), that the land the allotment of which was confirmed in favour of the allottees and also the land on which the allottees were permanently settled under the settlement laws were pre‑emptible and it was only the land under the temporary allotment which was not pre‑emptible irrespective of the fact as to whether Rule No.7 afore‑mentioned was in fact framed on 24‑12‑1964.

3. The argument has force the correctness of which even was not contested by the learned counsel for the respondents. The Courts below proceeded on the assumption that only such evacuee land was pre‑emptible which was permanently settled and such permanent settlement was presumed to have taken place only when Rule 7 of the Displaced Persons (Land Settlement) Rules, 1958 was mended on 24‑12‑1964. This view cannot be sustained in view of the authoritative pronouncement made by the Supreme Court in the said reported judgment. The judgments and decrees of both the Courts below, therefore, suffer from illegality and are not sustainable. The appeal is accepted, the judgments and decrees of both the Courts below are hereby set aside and the case is remanded to the learned trial Court to proceed to decide the same after framing the issues. The learned trial Court shall also frame an issue whether the land in dispute had either been permanently settled or its allotment confirmed in the name of the vendor at the relevant time because there is no finding on this aspect of the case. The issue with regard to superior right of pre‑emption of the plaintiff shall also be framed alongwith the other issues arising from the pleadings of the parties in accordance with law. There will, however, be no order as to costs.

A.A/A‑357/L. Appeal accepted.