SHER BAHADUR Versus BEHRAM KHAN

1. SHAFIUR RAHMAN, J.‑ ‑Leave to appeal was granted to the plaintiff‑pre‑emptor to examine whether he had a superior right of pre‑emption being a co‑sharer of the Khata of the occupancy right Is which was the subject‑matter of sale.

2. By a registered sale‑deed dated 11‑7‑1962, Muhammad Rafiq, an allottee under the Displaced Persons (Land Settlement) Act, 1958 of the evacuee rights of occupancy sold it in favour of defendant respondent, Behram Khan. The property sold was the whole of Khasra No.856/2 measuring 17 Kanals 2 Marlas, Khasra Nos.853 and 854 measuring 12 marlas and one‑half share in Khasra No.855, measuring 7 marlas. This last Khasra number was Ghairmumkin enclosure of a well. The plaintiff /appellant who was also a purchaser of the right of occupancy from the allottees in respect of the adjoining Khasra Number 856/1 in the, same Khata and half of the Khasra Number 855 instituted a Civil Suit pre‑empting the sale. The suit was contested and the following issues were framed on the pleadings of the parties:‑

3. "(1) Whether the suit property is not pre‑emptible? OPD

(2) Whether the plaintiff has superior right of pre‑emption? OPD

(3) Whether the consideration of Rs.2,500/‑ was fixed in good faith or actually paid? OPD

(4) What is the market value of the suit land? OP. Parties.

(5) Relief."

4. The trial Court held that sale of right of occupancy was pre‑emptible being 'land' as defined in the Punjab Alienation of Land Act which definition stood incorporated in the Pre‑emption Act. However, this sale was held to be not pre‑emptible on the ground that the vendor was a mere allottee under the Displaced Persons (Land Settlement) Act, 1958 and had sold only the rights of an allottee which did not qualify as property which could be pre‑empted. Reliance for this was placed on the judgment of High Court of West Pakistan in the case of Muhammad Hanif v. Jiwa Khan decided on 12th of March, 1962. The plaintiff ‑pre‑emptor was found to be a co‑sharer in half of Khasra No.855 and a purchaser in the cultivation column of the entire Khasra Number 856/1. Nevertheless he was considered not to be a co‑sharer in Khata and superior right of pre‑emption was denied to him. The price at which the sale had taken place namely Rs.3, 500/‑ was held to be the price and also its market value. On the findings of first two issues, the suit of the plaintiff was dismissed with costs.

5. On appeal, the District Judge upheld the superior right of pre‑emption of the plaintiff on account of being co‑sharer but held the sale not be pre‑emptible following the decision of the High Court in the case of Muhammad Hanif v. Jiwa Khan. The appeal was dismissed. The High Court, in the Second Appeal, following the decision of the Supreme Court in Haji Sultan Muhammad and another v. Muhammad Sadiq (P L D 1973 S C 347) held the sale to be pre‑emptible. As regards the superior right of pre‑emption, the learned Judge in the High Court held as follows:‑---

6. "The learned counsel for the appellant argued that the appellant had claimed superior rights of pre‑emption in his suit on the ground that he was co‑tenant with the vendor. No such plea in reality was taken in the plaint. Learned counsel therefore, also argued that being co‑sharer in the corpus of the land, the appellant can have superior right of pre‑emption over the sale of occupancy tenancy right. I cannot agree with him. If the share in the corpus of the land is sold the co‑sharers in the Khata or in the village can pre‑empt the sale but if not the corpus of the land but the occupancy tenancy rights are sold by the tenant then co‑sharer in the occupancy tenancy can pre‑empt and not the co‑sharers in the corpus of land-----------------Learned counsel for the appellant has not been able to cite any authority to the effect that a co‑sharer in the corpus of the land can pre‑empt the sale of occupancy tenancy rights. The next argument of the learned counsel for the appellant is that since according to the Jamabandi the appellant is occupancy tenant in respect of some portion of the property, he can pre‑empt the sale of the occupancy tenant ? and that by mistake in the plaint it could not be urged that on the ground of being co‑sharer in the tenancy he had superior right. No doubt the copy of Jamabandi shows that in respect of share of the property sold, he was an occupancy tenant but he cannot improve his case by claiming superior rights of pre‑emption on different ground. The pre‑emptor cannot be allowed to amend his pleading so as to claim right of pre‑emption on different grounds because if this is allowed the vendee has to face quite a new case, even otherwise right of pre‑emption being a very weak right the pre‑emptor should be vigilant to come forward with the correct position and cannot be allowed to claim right of pre‑emption on a different ground not already taken in the suit."

7. On these grounds this second appeal was also dismissed.

8. The leave granting order summarises the entire controversy in the following words:‑

9. "The sale sought to be pre‑empted was of occupancy rights, and an important question of law arises as to the interpretation and application of clause (b) of section 15 of the Punjab Pre‑emption Act as regards the preferential right of co‑sharers in respect of such a sale. An allied question which also needs consideration is the construction of the relevant paragraph in the plaint, which has been construed by the High Court as not including a claim to preference under the aforesaid provisions on the ground that it was not asserted that the plaintiff was a co‑tenant, as distinct from a co‑owner of the land in suit."

10. Malik Muhammad Jaffar, Advocate, the learned counsel for the appellant has contended before us that Khasra Number 856/1 of which the appellant was the occupancy tenant having purchased those rights from Tawab Gul, the allottee thereof, and Khasra Numbers which were sold happened to be in the same Khata. Therefore, by purchasing Khasra Number 856/1, the appellant had become a co‑sharer of the occupancy rights in the same Khata and on that account could exercise the right of pre‑emption in respect of all the Khasra Numbers which were the subject‑matter of sale. He has relied on the decisions of this Court in Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 S C (Pak.) 9, Ali Muhammad v. Shera and others .(198? SCMR 20?) and Feroze v. Shera and others (P L D 1985 S C 254).

11. In the alternative the contention of the learned counsel for the appellant is that in any case Khasra Number 855 was admittedly the occupancy tenancy to the extent of one‑half of the appellant himself and the other half share was the subject‑matter of sale and of pre‑emption. In respect of this Khasra Number on no ground the claim of the appellant could be defeated.

12. As regards the judgment of the High Court, the learned counsel for the appellant has contended that by claiming to be a co‑sharer in the property sold, the appellant had made his claim very specific and clear. It was that the property sold was enjoyed in common by the appellant and the vendor. If it happened to be the rights of occupancy the appellant had that right of occupancy. If it was proprietary, the appellant claimed just that interest and nothing more.

13. There was, therefore, no ambiguity or inconsistency. It was not at all a case of setting up of a new plea. His case has remained consistently the same throughout.

14. In order to establish that the sale of occupancy rights is covered by Pre‑emption Law, the learned counsel has referred to the definition of 'land' as understood consistently in the past, under the Pre‑emption Act.

15. The learned counsel for the respondent, on the other hand has supported the decision of the High Court on the reasoning given by it.

16. Section 4 of the Punjab Pre‑emption Act recognizes the right of Pre‑emption in agricultural land or village immovable property of urban immovable property. 'Agricultural land' has been defined under section 3, clause (1) of the Punjab Pre‑emption Act to mean land a defined in the Punjab Alienation of Land Act, 1900 but it does no include the rights of a mortgagee, whether usufructuary or not, in such land. In the Punjab Alienation of Land Act, clause (3) of section 2 defines 'land' as "land which is not occupied as the site of any, building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture; and includes‑

(a) the sites of buildings and other structures on such land;

(b) a share in the profits of an estate or holding;

(c) ? any dues or any fixed percentage of the land revenue payable by an inferior land‑owner to a superior land‑owner;

(d) ? a right to receive rent;

(e) ? any right to water enjoyed by the owner or occupier of land as such; ????

(f) any right of occupancy; and

(g) all trees standing on such land."

17. Occupancy rights being covered by the definition of 'land' under the Pre‑emption Law, the sale thereof will be pre‑emptible.

18. It has already been held by the High Court, and it is not open to question that the rights settled in evacuee land under the Displaced Persons (Land Settlement) Act are transferable and the transfer thereof can invite a pre‑emption claim in appropriate cases.

19. This being a case of allotment and permanent settlement of specific portions from the same Khata without assigning any share in the joint property, the incidents of co‑sharership will not result on such allotment. All evacuee property was pooled in the hands of the Rehabilitation Commissioner and thereafter in that of Provincial Government. There being a single owner of the entire property and the allotment taking place individually of specific portions, there is no question of a joint tenancy or ownership arising therefrom unless the allotment itself has been made joint. Barring Khasra Number 855 all the other Khasra Numbers were specifically allotted to individual without creating any share in the Khata. It is not one of those case where decision of Muhammad Muzaffar Khan becomes applicable because the authority allotting to the vendors or the pre‑emptors was not a co‑sharer within the meaning of the law laid down by this Court.

20. The facts, however, unmistakably show that the vendor Muhammad Rafique owned only half the share of occupancy rights in Khasra Number 855 measuring 7 marlas. The other half was enjoyed by the appellant. On that account, the appellant was a co‑sharer of it. Being a co‑sharer in the property sold, he shall be entitled to pre‑empt only that Khasra number and not any other. His preferential claim is established only in respect of Khasra Number 855 and not in respect of any other Khasra number. As the appellant had claimed preferential right on the basis of co‑sharership in the property sold and the property being sold having rights in occupancy, his claim was fairly explicit and needed no further elaborations.

21. This appeal is allowed only to the extent that it is held that the appellant is entitled to pre‑empt the sale out of Khasra No.855 only on proportionate price which comes to about rupees forty only (Price of 17 Kanals 18 Marlas being 3,500/‑ and the pre‑empted property being only four Marlas). No order as to costs.

22. M.B.A./S‑172/S ????????????????????????????????????????????????????????????????????????????????? Appeal allowed.