KHURSHID AHMAD Versus ZAFAR IQBAL
Leave to appeal was granted to examine whether a pre-emptor's claim could succeed if it allegedly violated paragraph 25 of the Land Reforms Regulation, 1959. The minor plaintiff sought to pre-empt a land sale, which the trial court dismissed holding that the pre-emptor owned no land, the vendors owned less than a subsistence holding, and the transaction violated the Land Reforms Regulation. The appellate court and the High Court both ruled in favour of the pre-emptor, decreeing the suit. The Supreme Court dismissed the appeal, holding that the restrictions in paragraph 25(4) of the Land Reforms Regulation, 1959, apply to voluntary alienations by sale, mortgage, gift, or otherwise, and do not extend to a right of pre-emption. The Court established that a pre-emption claim is a right of substitution, not an independent purchase, meaning the pre-emptor merely steps into the shoes of the original vendee without introducing extraneous disqualifications, leaving the pre-emption right unaffected by the Land Reforms Regulation.
- Does the bar contained in paragraph 25 of the Land Reforms Regulation, 1959, apply to a pre-emption claim?
- Is a right of pre-emption considered a voluntary alienation or a right of substitution?
- Does a pre-emptor bring forth their own incapacities or disqualifications when substituting the original vendee?
- Paragraph 25, Land Reforms Regulation, 1959
1. SHAFIUR RAHMAN, J.‑‑ Leave to appeal was granted to the vendee in a pre‑emption suit to examine, whether the pre‑emptor's claim to the property could succeed so as to violate the provisions of para 25 of Land Reforms Regulation; 1959.
2. The father and an uncle of the minor plaintiff/pre‑emptor alienated land measuring 16 Kanals 9 Marlas in village Dhoorey, Tehsil Gujarkhan and mutations of sale were attested on 26th of September, 1968. The minor instituted a suit through a next friend, his mother, claiming superior right of pre‑emption on the ground that he was an heir of both the vendors. While examining the superior right of pre‑emption of the plaintiff. the trial Court did not go into the question of relationship with the vendors as that question was not in contest. The objection taken was that as the minor owned no land, the vendors were the owners of land less than the subsistence holding and they had alienated entire land in favour of the vendee/appellant who was the owner in the village. the sale or the enforcement of the right of pre‑emption in favour of the plaintiff would violate para 25 of the Land Reforms Regulation, 1959. A notification (No.ASR‑11 182/70/1126‑LO, dated 20‑2‑1970) which could come to the rescue of the pre‑emptor was no longer available on the repeal of Land Reforms Regulation, 1959 and the enforcement of the Land Reforms Regulations 1972. The trial Court upheld this objection of the vendee on 9‑11‑1973 and dismissed the suit of the pre‑emptor, The ground on which it did so appears from the following
3. "The upshot of the above discussion is that the plaintiff could neither purchase or pre‑empt the suit land at the time the impugned sales were effected. He did not have such right even at the time of the institution of the present suit. Martial Law Regulation No.64 was a bar. So have been stated in PLD 1968 Lah. 907. The notification, dated 20‑2‑1970 could have brought a sigh of relief for the pre‑emptor but it was so shortlived as to be of any substantial benefit to him and now as the suit has matured the Matrial Law Regulation No.115 is a formidable obstacle for the suit .The present plaintiff except for the short lucid interval during the pendency of this suit did not have a right for pre‑emption at the time of sales, at the time of the institution of the suit and last but not the least at the crucial time of this judgment. Hence in the circumstances the plaintiff is debarred to pre‑empt the sale in question under Martial Law Regulation No.115. The issue is decided accordingly."
4. An appeal was preferred by the pre‑emptor to the District Judge and the appellate Court reversed the judgment by observing as follows: ‑
5. "The upshot of the above discussion is that the plaintiff could file the present suit for pre‑emption as there was no bar created by Martial Law Regulation 64 as geld by lower Court. The learned Lower Court has relied upon PLD 1968 Lah.907 whereas the subsequent rulings as reported in PLD 1974 Lah.268 and PLD 1975 Lah.628 have clearly supported the view of the learned counsel for the appellant . As discussed above it is clear that the sale in question was not hit by Martial Law Regulation 64 of 1959 which was substituted by Martial Law Regulation No.115 of ‑1972, and this view is supported by the authorities cited above."
6. The suit of the plaintiff was decreed.
7. A Second Appeal was preferred to the High Court which did not succeed.
8. Mr. Samad Mehmood, Advocate, the learned counsel for the appellant contended that the notification issued by the Land Commission in 1970 protected to certain extent, the decrees passed by Civil Courts, in such cases. As that notification had lapsed on promulgation of Land Reforms Regulations of 1972, the benefit thereunder could not be claimed by the pre‑emptor. If the plaintiff had otherwise sought to purchase this land, the bar contained in para 25 clause (4) would have been directly attracted and what is prohibited thereunder could not be accomplished through a pre‑emption decree.
9. Learned counsel for the respondent, has relied on the subsequent decisions of the Lahore High Court which clearly hold that the prohibition or the bar contained in Land Reforms Regulations of 1959 and invoked by the appellant does not in terms, apply to a pre‑emption suit and a decree passed in recognition of the right of ,pre‑emption.
10. The specific bar pleaded at the hearing is contained in clause (4) of para. 25 of the Land Reforms Regulation, 1959. It reads as follows: ‑
11. "(4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding:
12. Provided that such a person may alienate his entire holding, or, in the case of a holding which is less than a subsistence holding, sell any part of his holding to other owners of the same village, deh or mauza.
13. Nothing in this paragraph shall apply to land whether cultivable or otherwise, which is bona fide required for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the order of the Deputy Commissioner."
14. In the case of Rahim Bakhsh v. Gul Muhammad PLD 1968 La h.907 the bar contained and reproduced above was held to extend to enforcement of pre‑emption claim. The notification was noticed in Allah Bakhsh v. Muhammad Riaz PLD 1974 Lah.268 and independently of the notification, the question was examined in the case of Abdul Majeed v. Tora Baz Khan PLD 1975 Lah.628. It was held that the prohibition or the bar did not apply to a pre‑emption claim.
15. The express words of clause (4) of para 25 of the Land Reforms Regulation which are restrictive of the right to alienate the property do not prohibit a pre‑emption claim or a court sale. The prohibition does not cover every transaction of transfer of property. It covers voluntary allenations by sale, mortgage, gift, or otherwise entered into between two persons. The pre‑emption claim is not one of purchase or re‑purchase but of substitution. The concept of substitution itself implies that the validity or invalidity of the original sale in favour of the first vendee devolves on the successful pre‑emptor who substitutes him. There is no allegation that the sale in favour of the appellant himself was imperfect or violative of any provisions of law. In the absence of it the person substituting him cannot bring forth while substituting the vendee his own incapacities or disqualifications extraneous to and forming no impediment to his right to pre‑empt the property.
16. The notification of the Land Commission referred to in the judgment itself shows that the passing of the decree for pre‑emption was not barred but, if at all, doubt with regard to the efficacy and execution of such a decree, existed. In order to resolve that apparent conflict, the notification was issued by the Land Commission and is reproduced hereunder: ‑
"WEST PAKISTAN LAND COMMISSION
17. The 20th February, 1970.
18. No.ASR‑11‑182/70/1126‑LC.‑‑In exercise of the powers conferred on the West Pakistan Land Commission under paragraph 4(5) of the Land Reforms Regulation, 1959, the Commission is pleased to direct, in relaxation of the provisions of sub‑para (4) of para 25 of the Regulation, that a holder of a pre‑emption decree granted by a competent Court, shall acquire area less than a subsistence holding even though he may not be an owner of the same village, deh or mauza."
19. The pre‑emption right of the plaintiff being a right of substitution and not of sale, purchase or repurchase remains unaffected by para 25 of Land Reforms Regulation 1959. The notification or the absence of it does not in any manner affect the grant of judgment and decree in favour of the plaintiff pre‑emptor. The impugned judgments suffer from no infirmity and the appeal is dismissed with costs.
20. M.Y.H./K‑47/S Appeal dismissed.