MUMTAZ Versus THE STATE

These two connected revision petitions, which arise out of a common judgment, and, involve a similar legal point for decision, can be conveniently dealt with in a common order. Hence, the order in this Revision Petition shall also govern Revision Petition No.155/D of 1991, which lay in motion hearing.

2. Instant civil revision arose from out of a pre‑emption suit. It raised an important and interesting proposition of law relating to interpretation of section 20 of Punjab Pre‑emption Ordinance/Act, 1991, governing the mode of distribution of pre‑emptive property, between equi‑classed pre‑emptors, and vendees. Section 20 of the Pre‑emption Ordinance/Act was unlike its predecessor section 17 of Punjab Pre‑emption Act, 1913.

3. Relevant facts are:‑‑Noor Khan owned 39 Kanals 5 Marlas of land at Mauza Lawa of Tehsil Tallagang, District Chakwal. By Mutation No.2260 sanctioned on ‑10‑1‑1990, he sold it to Ahmad Yar for a consideration of Rs.1,20,000. Four persons, namely Feroze Khan, Waris Khan, Ahmad Khan and Muhammad Khan sons of Mehar Khan pre‑empted above sale. Pre- emption was claimed on the grounds of being co‑sharers in the land sold, participators in immunities and, contiguity, i.e. Shari Shareck, Shafi Khalit and Shat Jar. Price paid for the land in dispute was disputed. It was asserted that only a sum of Rs.60,000 was paid and rest of the amount was fictitiously inserted in the mutation to stave off possible pre‑emption. Pre‑emptors performed necessary Talabs, and, instituted pre‑emption suit on 9‑5‑1990. Upon being served in the suit, vendee appeared and submitted his written statement. Apart from denial of superior right of pre‑emption claimed against him, it was pleaded that stated consideration in the sale mutation was fixed in good faith, and, actually paid. It was further pleaded that he had expended Rs.5,000 upon improvements on the land and also claimed incidental charges in the sum of Rs.13,000 incurred on sale by him. Pleas of estoppel; non- performance of requisite Talabs, and, the suit being barred by limitation were also raised in defence., The trial Court framed appropriate issues for decision and upon taking evidence from the parties and its consideration, partly decreed pre‑emption suit on 18‑12‑1990 by giving 4/5th share in the pre‑emptive land to the pre‑emptors, and, leaving remainder 1/5th to the vendee, subject to payment of Rs.72,000 in the Court, till 17‑1‑1991. In default of payment of purchase money by the due time, pre‑emption suit was considered to have been dismissed. The vendee preferred an appeal against decree of the trial Court to learned District Judge, Chakwal. His appeal was entrusted to a learned Addl. District Judge, who found that section 9 of Punjab Pre‑emption Ordinance, 1990 applied to the facts and distributed the land equally by giving a moiety of it to each side upon payment of proportionate sale price. Pre -emptors felt aggrieved of the decision and preferred a revision against it. In addition to ancillary points covering expenses for improvements and miscellaneous charges on sale, pivotal point urged at the hearing turned on an interpretation of section 20 of Punjab Pre‑emption Ordinance/Act. Both the pre‑emptors and the vendee were equally poised. The plaintiffs and the vendee were Shafi Shareek, and, thus were at par with each other. Section 9 of the Ordinance/Act dealt with. mode of distribution of property inter se pre -emptors whereas the mode of distribution laid for the pre‑emptors and the vendees was covered in section 20 of the Punjab Pre‑emption Ordinance/Act. In my opinion, lower appellate Court incorrectly applied section 9 of the aforenoted Ordinance/Act to the case of the pre‑emptors and the vendee. As the decision of the revision petition turned on section 20 of the Punjab Pre -emption Ordinance/Act it shall be profitable to make a reference to it. It reads:‑‑‑

" Where the pre‑emptor and vendee equally entitled :‑‑Where the pre -emptor and the vendee fall within the same class of pre‑emptors and have equal right of pre‑emption, the property shall be shared by them equally."

Section 20 embodied a rule of Islamic Law, that in case of plurality of persons having equal right of Shuffa, the property shall be distributed per capita among them equally. As the pre‑emptors were four in number poised against a sole vendee, they shall be entitled to 4/5th share of the property sold leaving the vendee with 1/5th share in it. Above rule for distribution of the‑pre- emptive property between equally classed pre‑emptors and the vendee found recognition in a celebrated judgment of Allahabad High Court in case of Amir Hassan (Plaintiff) v. Rahim Bakhsh and others (Defendant) ILR 19 All. 466. Rule laid down in the above case firmly held the field in Allahabad High Court as well as Bombay High Court. Further, it was followed by Assam High Court, in case of Ladhi Bibi and others v. Masaddar Ali Chaudhury and others AIR (36) 1949 Assam 81. Reference to para. 13 of the above judgment shall be helpful. It reads:‑

"Vendees are not co‑sharers in Patta No.34. Plaintiff, therefore, is entitled to pre‑empt the lands of this Patta to the exclusion of the vendees. As regards lands of Pattas Nos.54 and 107, plaintiff has been given a decree for half. But this is not according to law. Plaintiff and the three vendees are all co‑sharers in the land. Their rights are equal and according to Muhammadan Law, they will be entitled to share the land equally between themselves. This view of the law admits of no doubt and Amir Hassan v. Rahim Bakhsh, 19 All. 466: (1897 A.W.N. 118) is a clear authority that supports it. In these circumstances, plaintiff would, be entitled to 1/4th of lands sold from Pattas Nos. 54 and 107."

I must concede, my respect for the celebrity of the illuminating judgment of the Allahabad High Court in case of Amir Hassan which greatly assisted me on a field which was yet not covered by an authority of this Court. Heretofore, division of the pre‑emptive property was covered by section 17 of the Punjab Pre‑emption Act, 1913, since repealed. Section 20 of the new Pre‑emption Law, fell for interpretation for the first time after its enforcement. There was no decided case from this Court on it. Decision in Amir Hassan's case was clearly in point and favoured the view of the trial Court. I am in respectful agreement with the view expressed in Amir Hassan's case and would prefer to follow it in the case under consideration.

3. At the end, learned counsel for the respondent submitted that since on the date of impugned sale sought to be pre‑empted provisions in Punjab Pre -emption Act, 1913 had evanished, and, Punjab Pre‑emption Ordinance, 1990 (Ordinance V of 1990) was put in force on 29‑3‑1.'90, pre‑emption suit was incompetent, and, no decree could have been passed in it. In support of the argument, learned counsel referred to the case of suo motu Shariat Review Petition No.1‑R of 1989 PLD 1990 SC 865, Muhammad Yaseen and others v. Khan Muhammad and others PLD 1990 SC 1060 and my own judgment in Balanda (deceased) and 3 others v. Bashir Ahmad 1991 MLD 682. As for my judgment, it was totally unhelpful to the respondent because it covered a sale effected on 8‑5‑1974 and pre‑emption in respect of it was regulated by the then prevailing law. In Said Kamal's case reported as PLD 1986 SC 360, superior qualifications except co‑ownership for asserting pre‑emption given in Punjab Pre‑emption Act, 1913 were declared un‑Islamic. Judgment of the Supreme Court took effect from 31‑7‑1986. 1n case of Sardar Ali and others PLD 1988 SC 287 except for the decrees passed on or before 31‑7‑1986, it was authoritatively observed that no fresh decree upon the preferences given in the Punjab Pre‑emption Act, 1913 could be passed. In case of Mst. Safia Begum v. Ibrahim and four others PLD 1989 SC 314 it was ruled that in the interregnum, Islamic law of pre‑emption shall apply. "Savings" in section 36 of Punjab Ordinance XVIII of 1990, Punjab Ordinance IX of 1991, and, eventually, Punjab Pre‑emption Act, 1991 (Act IX of 1991) shall also support application of Muslim Law of pre‑emption which intersticed the vacant field. Therefore, the argument that in absence of enacted law, no pre‑emption could be claimed, did not hold water. As for ancillary contentions about reimbursement o expenses incurred upon improvements on the land, and, miscellaneous charges of sale, there was not sufficient proof of them. Lower Courts had not allowed claims of the respondent on these scores. There was no scope for taking a different view on that account.

4. As a result of above ‑findings, the judgment and decree of the lower appellate Court are set aside and those of the trial Court being restored to operate. As the decision of revision petition turned on a question of law, parties shall bear their own costs in this Court.

5. Records be returned.

AA./F‑31/L Revision accepted.