' MAULVI ANWARUL HAQ, J.---This case has rather a chequered history. Vide Mutation No.29 suit- land was purchased by respondent No.4 for a consideration of Rs.8,440. Following persons filed suits for possession by preemption claiming superior right of preemption on the ground that they are owners in the estate:--
(i) Malik Sardar Muhammad, the petitioner,
(ii) Noor Muhammad, the predecessorin-interest of respondents Nos.1 to 7, and
(iii) Bala, the predecessor-in-interest of respondents Nos.8 to 10.
' The rival pre-emptors were impleaded as co-defendants in the said three suits. Written statements were taken. The proceedings were conducted in the suit filed by the said Bala. The learned trial Court on the basis of statements of the parties issued orders and decrees in favour of the three pre-emptors respectively. Noor Muhammad pre-emptor filed first appeals. All the three appeals were allowed by a learned Additional District Judge, Multan, vide order dated 27-5-1971. He proceeded to set aside the said decrees and remanded back the case to the learned trial Court to decide the same in accordance with law. After the remand, the learned trial Court found that the vendee is no longer interested in contesting the suits and has walked away after withdrawing the amount of Rs.8,440 deposited by all the pre-emptors. The rival pre-emptors were in contest as to the shares in which the land was to be distributed. He found on the basis of the evidence that Bala pre-emptor owned an area of 148 Kanals and 19 Marlas in the revenue estate, Noor Muhammad pre-emptor owned 30 Kanals and 3 Marlas while Sardar Muhammad owned 183 Kanals and 9 Marlas. He proceeded to hold that Bala will get 149 share, Noor Muhammad will get 30 share and Sardar Muhammad will get 183 shares in the suit-land. The LRs. Of Noor Muhammad filed three first appeals. These appeals were dismissed by a learned Additional District Judge, Multan, on 19-1-1976.
R.S.A. No.246 of 1976 was filed by L.Rs. Of said Noor Muhammad. The learned counsel for the parties stated before this Court that the question of division of the suit property has been decided on grounds not warranted by law and with consent the judgments and decrees were set aside to the extent of matter of division of suit property and the case was remanded to the trial Court for decision of question of division of the said property in accordance with clauses (c) and (e) of section 17 of the Punjab Pre-emption Act, 1913. This was done vide judgment dated 7-3-1989. After the remand the learned trial Court proceeded to distribute the property in the following shares:--
(i) L.Rs. Of Bala pre-emptor 149/362 share
(ii) LRs of Noor Muhammad preemptor = 30/362 share
(iii) Sardar Muhammad petitioner = 183/362 share.
' The LRs of Noor Muhammad again filed first appeals which were heard by a learned Additional District Judge, Lodhran. He proceeded to allow the appeals and to remand the cases to the learned trial Court vide order dated 7-12-1992 with following directions:-- "The learned trial Court shall give an opportunity to the parties to lead evidence if any that there is Shamlat Deh in the Mauza and each of the pre-emptors is entitled to such and such share in the Shamlat Deh. If no such evidence is led by the parties and it is proved that there is no Shamlat Deh the rival pre-emptors shall get property equally in accordance with clause (e) of section 17 of Pre- emption Act."
2. Learned counsel for the petitioner contends that on a plain reading of section 17 of the Punjab Pre-emption Act, 1913, read with section 15 thereof, the only clause applicable was clause (c) of section 17 of the Punjab Pre-emption Act, 1913 and as such the learned trial Court had correctly apportioned the said property amongst the rival pre-emptors. According to him, the learned Additional District Judge had acted with material irregularity in the exercise of his jurisdiction in proceeding to add some conditions on his own to the said statutory provisions and to remand back the case whereas the matter could have been decided on the available material. Mr. Umar Kamal Khan, Advocate/learned counsel for the L.Rs. Of Noor Muhammad pre-emptor argues that since there is no Shamlat in the revenue estate in question, the matter cannot be dealt with under the said clause (c) and as such it can only be dealt with under clause (e) as observed by this Court while deciding R.S.A. No.246 of 1976. According to the learned counsel, the provisions of clause (e) was to cater for such-like situation.
3. I have gone through the copies of the records. Now if I find that after the first remand evidence of the pre-emptors in the matter of division of property was recorded. On 6-7-1972 Munshi Naseer Ahmad, Patwari, appeared with the records of the revenue estate and made a statement that as on 5-1-1968 Noor Muhammad was owner of 30 Kanals and 3 Marlas, Sardar Muhammad was owner of 183 Kanals and 9 Marlas and Bala was owner of 148 Kanals and 19 Marlas. This statement was not challenged by any of the pre-emptors and the witness was not cross-examined despite opportunities. Even today, the said statement is not being questioned.
4. Now Mst. Fatima the vendor sold suit-land measuring 45 Kanals to Yasin vendee vide Mutation No.29 attested on 5-1-1968. There is no dispute that all the three pre-emptors are owners of the estate as also their ownership in the estate.
5. It will now be appropriate to reproduce here the provisions of section 17 of the Punjab Pre- emption Act which are as follows:-- "17. Exercise of right of preemption where several persons equally entitled.---Where several pre- emptors are found by the Court to be equally entitled to the right of pre-emption, the said right shall be exercised:--
(a) If they claim as co-sharers, proportion among themselves to the shares they already hold in the land or property;
(b) If they claim as heirs, whether co-sharers or not, in proportion among themselves to the sharers in which but for such sale would they inherit the land or property in the event of the vendor's decease without other heirs;
(c) If they claim as owners of the estate or recognized sub-division thereof, in proportion among themselves to the shares which they would take if the land or property were common land in the estate or the sub-division, as the case may be;
(d) If they claim as occupancy tenants, in proportion among themselves to the areas respectively held by them in occupancy right;
(e) In any other case, by such preemptors in equal shares."
6. Before proceeding further, I may note here that section 17 is to be found in Chapter III of the said Act of 1913 along with sections 12 to 18 (both inclusive). Now section 12 provides for the law which determines the right of pre-emption. Section 13 provides for the manner in which the joint right of pre-emption is to be exercised. Section 14 places a limit upon the exercise of right in respect of lands sold by member of an agricultural tribe. Section 15 states the list of persons in whom the right of pre-emption in respect of agricultural land and village immovable property shall vest. Section 16 gives such a list in respect of sales of urban immovable property. Then follows section 17 and finally section 18 which makes the provisions of sections 15 and 17 applicable to foreclosures as well.
7. Now upon a plain reading of the said section 17 as reproduced above, clause (a) deals with the pre-emptors who claim to be co-sharers in the suit-land or property. I may note right here that this clause would be applicable both in the matter of agricultural land; village immovable property as well as urban immovable property. Clause (b) deals with the persons claiming as heirs, whether co-sharers or not, with reference to proportion in which they would inherit the land. I may note here that this clause has reference to sections 15(a) and (b). Clause (c) refers to owners of the estate or recognized subdivisions which is the case here. This has reference to section 15(a) (secondly and thirdly). Clause (d) pertains to the occupancy tenants and this has reference to section 15(c)
(fifthly).
8. In my humble opinion, clause (e) of section 17 has to be read in the context noted by me above i.e. It is applied to the persons who are vested with right of preemption either under section 15 or under section 16 who do not find a mention in any clauses (a), (b), (c) or (d) of section 17 of the said Pre-emption Act, 1913. It will be seen that there is no reference to the persons having a right of pre-emption under section 16, thirdly, fourthly, fifthly and sixthly of the said Act. There is no manner of doubt in my mind that clause (e) of section 17 has been enacted to cover the cases of the persons vested with the right of pre-emption other than the persons specifically mentioned in clauses (a) to (d) of the said section 17.
9. Now upon a reading of the said clause (c) of section 17 it is but apparent that by no stretch can it be said that the said provision of law contained a condition that the said persons claiming as owners of the estate or recognized sub-division thereof, will take the land or property in accordance with their shares in the common land or Shamlat land in the estate or the subdivision.
Had this been the intention of the Legislature it could have been so stated. On the other hand, what the said clause (c) of section 17 clearly conveys is that the suit-land or property itself is to be treated as a Shamlat or a common land and distributed accordingly.
10. Now the question that remains to be seen is as to on what basis the land treated' as Shamlat under the said legal fiction is to be distributed. The learned trial Court has distributed it on the basis of available evidence with reference to the proprietary holding of the contested preemptors. To my mind, since the other mode of partition with reference to the assessed land revenue has neither been pleaded throughout the decades, the case remained pending, nor, of course, there is any material on record to resort to distribution on the basis of the assessed land revenue, the learned trial Court has not committed any error of law or fact while proceeding to distribute the said Shamlat according to the admitted proprietary holding of the preemptors in the said revenue estate.
11. Mr. Umar Kamal Khan, Advocate, vehemently urges that the R.S.A. Having been decided by this Court in the light of the Division Bench judgment in the case of Fateh Muhammad and another v.
Fateh Muhammad and others AIR 1948 Lahore 71, the trial Court was bound to decide the case in accordance with the provisions of the said order.
12. In all humility, as noted by me above, the R.S.A. Was decided with reference to the statements made by the counsel for the parties and since these statements relatable to a question of law, same may not be binding upon their respective clients. What the judgment expresses, is opinion of the said learned counsel for the parties and not of the Court. As stated by me above, the said provision of law does not leave any scope for any ambiguity or lacuna to be filled up by attaching conditions thereto which were not intended to be part of the statute. Now so far as the opinion expressed by Mr. Justice Mahajan in the said case of Fateh Muhammad and another, I find that his Lordship was confronted with a very peculiar circumstance. The learned Single Judge of this Court had proceeded to hold that notwithstanding the fact that the two sets of pre-emptors had an equal right of pre-emption, one having a share in the Shamlat shall exclude the other having no share in the Shamlat. It was to meet with the said situation that the opinion was expressed.
13. I further find that there was no occasion for any remand by the learned Additional District Judge after adding the condition calling upon the Court or parties to locate the Shamlat and then to proceed to distribute the land, as already stated by me above, the suit-land itself is to be treated as a Shamlat. The civil revision is allowed. The impugned order and decree dated 7-12-1992 of learned Additional District Judge, Lodhran, is set aside and the judgments and decrees passed by the learned trial Court on 19-11-1990 are restored. No orders as to costs.