MUHAMMAD ARSHAD and anothers vs NAWAB ALI
This appeal by leave arises out of a pre-emption suit decreed through all courts in favor of the respondent. The petitioners challenged the respondent's right of pre-emption on the ground that the bulk of his land in the estate had been acquired by the Government for a housing scheme, leaving him with only a fraction of 5 marlas adjacent to the scheme, which they argued did not qualify him as an owner of the estate. The core legal question was whether an owner left with a small remaining holding of 5 marlas, still recorded in the jamabandi as an owner paying land revenue, retains the status of an owner of the estate for pre-emption purposes. The Supreme Court dismissed the appeal, holding that the respondent remained an owner paying land revenue, distinguishing the cited case law where the small plots in question were unassessed to revenue and uncultivated. The principle laid down is that ownership and assessment to land revenue in the record of rights determine the status of an owner of the estate, regardless of the smallness of the remaining holding following compulsory acquisition.
- Does an owner of land whose holding is largely acquired by the Government retain the right of pre-emption based on a remaining fraction of land?
- Whether owning a small parcel of land unassessed to land revenue disqualifies a person from being regarded as an owner of the estate?
- Does a pre-emptor recorded as an owner in the jamabandi and paying land revenue maintain their status as an owner in the estate?
1. ' NASIM HASAN SHAH, J.---The facts, which form the background to this appeal, are succinctly stated in the order granting leave to appeal which is, accordingly, reproduced below: "Petitioners purchased land measuring 13 Kanals 10 Marlas situated in Chak No,46 of N.B. Tehsil and District Sargodha through a registered sale-deed dated 30-7-1978. The respondent's suit for pre- emption has been decreed throughout. The petitioners seek leave to appeal.
2. The contention of the learned counsel for the petitioners is that the respondent claimed the right of pre-emption on the ground of being a land owner in the estate, but his land had been acquired by the Government for a residential scheme. He, therefore, ceased to possess the right of pre- emption. Learned counsel submitted that it has been found that out of holding of the respondent measuring 25 Kanals 5 Marlas, 25 Kanals have been acquired for the housing scheme. That still leaves him with 5 Marlas of land. It is on this basis that he was held to have the right. Learned counsel for the petitioners has contended that fraction of land measuring 5 Marlas adjacent to the housing scheme does not entitle the respondent to be an owner of the estate so as to have right of pre-emption. He places reliance on Chint Ram v. Harbhagat Singh AIR 1940 Lah. 344 and Salehon Muhammad v. Shera 1977 SCM R 297."
3. ' Leave was granted to consider this contention. Learned counsel for the parties have been heard.
4. The record shows that in the relevant record of rights (Jamabandi), the respondent is shown as owner in the estate and was paying land revenue. The decisions on which reliance is placed relate to the land for which land revenue was not being paid. Thus in Chint Ram v. Harbhagat Singh AIR 1940 Lah. 344 the appellant Chint Ram owned a small plot of land which was unassessed to revenue and uncultivated except to a trifling extent and clearly destined to be a building site.
5. Hence, he could not be regarded as one of the "owners of the estate". The factual situation in the other case, on which reliance is placed, namely the case of Salehon Muhammad and another v.
6. Khan Muhammad and others 1977 SCM R 297 is in essence, the same.
7. ' No good ground for interference with the orders of the Courts below, therefore, is made out.
8. ' Dismissed. No costs.