' This second appeal by Aftab Ahmad plaintiff arises from a suit for possession by pre-emption which was dismissed by learned trial Judge with the view that the impugned sale was not subject to the right of preemption, and appeal to challenge judgment of learned trial Judge was also dismissed by learned Court of first appeal (Additional District Judge).
2. In a nutshell, sale of land measuring two Kanals and 1 Marla in Khasra No, 151/1, Khatuni No, 368/357 in the revenue estate of Aaduwal, Tehsil and District Gujrat, which lay on the Grand Trunk Road registered in favour of Rehmat Ali on 19th November, 1970 in consideration of Rs, 12,300 was the subject-matter of the case leading to this appeal. Aftab Ahmad appellant filed this suit on 18th November 1971 to enforce his right of pre-emption over the sale on the ground that he was an owner in the estate and also a co-sharer in the Khata in which the land was situated while the defendant-vendee (respondent) was a stranger. The appellant also contended that the sale price was exaggerated in the document evidencing the sale. The respondent contested the suit upon inter alia, the ground that the sale was not pre-emptible as the land in suit was included in urban (Municipal) area of Gujrat. A number of issues were raised by learned trial Judge for disposal of the suit. In this appeal, we are, however, concerned only with the solitary question of pre-emptibility or otherwise of the impugned sale (Issue No, 2). Pre-emptive qualifications of the appellant were accepted by learned trial Judge and that appellant does not challenge the finding that sale price stated in the sale deed was paid or fixed in good faith.
3. It appears that the limits of Municipality Gujrat were modified/ extended from time to time. The last notification (D. 4) was issued on 30th September, 1974 when the suit of the appellant was pending decision. The respondent contended that under this notification the locality where the land was situated was included in the Municipality of Gujrat. The respondent produced copy of Jamabandi (D. 2) bearing a note of the Patwari that the land in suit was included in the Municipality of Gujrat. The appellant relied on copy of Jamabandi (P. 2) with a contrary note that the land in suit lay outside the limits of Municipality of Gujrat. Both Courts below have up held the contention of the respondent. I am bound by these concurrent findings of the two Courts below on a question of fact which are based on proper consideration of evidence. Copy of Jamabandi (Ex. P.
2) relied on by the appellant to refute the contention of the respondent ' was rightly discarded as the copy was prepared by the Patwari before notification (D. 4) was issued. Even otherwise also the copy (P. 2) does not avail of the appellant for the reason that the Khasra number in dispute (151) was not mentioned in it. It could not be said, therefore, that the note of the Patwari which obviously referred to the khasra number mentioned therein covered the land in question also.
4. Board of Revenue, West Pakistan, had on 12th February, 1968 issued notification under subsection
(2) of section 8 of the Punjab Pre-emption Act of 1913 exempting retrospectively with effect from 1st January, 1966 sale of agricultural land and village immovable property within the local limits of Gujrat Municipality. It would, therefore, appear that by virtue of this notification right of pre-emption had ceased to exist in respect of sale of property as soon as it was included within the municipal area of Gujrat although the right in respect of sale of the property was available when it was outside the limits of Gujrat Municipality. The appellant had the right of pre-emption at the time of sale as well as at the time of institution of the suit but he had ceased to retain the right before the suit was decided. It is well settled law that a pre-emptor in order to succeed in his claim must not only possess a superior right at the time of , the sale and on the date of the suit but must retain superiority on the basis' of which he claims to pre-empt at the stage of the decree also. Learned counsel for the appellant contended feebly, as I may say so that the notification (D. 4) by means of which land in suit was included in the municipal area of Gujrat could not apply retrospectively. Sale of land/ property included in the municipality made after the issue of notification extending the limits of municipality only will be immune from right of pre-emption. The right of pre-emption will not be affected if the property sold was included in the municipal area after the sale. Availability of right to sue for pre-emption should be determined with reference to the location of the property on the date of sale or at the highest with reference to its location on the date of institution of suit regardless of subsequent development that the property was included in municipal area after the sale or after institution of the suit. The contention does not have any substance in it. The notification dated 30th September, 1974 came into force with immediate effect with all liabilities, rights and advantages inherent in the inclusion of the locality in municipal area and should attract exemption of sale of property whether made before or after the notification from the right of pre-emption under the notification dated 12th February, 1968 of Board of Revenue. The question if notifications which have the effect of curtailing or extending vested rights should be applied retrospectively or prospectively has been subject-matter of cleavage in judicial opinion which has been set at naught by the judgment of Supreme Court in Bibi Jan v. R.A. Monny (1). It was ruled in that case that the question if notification extinguishing right of pre-emption should apply to sales that had already taken place or those to be held thereafter shall depend on the language of the notification with the promulgation of the notification unless a different intention is expressed in its language all rights of pre-emption would cease to exist in the area mentioned in the notification whether they pertained to sales that had already taken place or to those which were to be held hereafter. The notification should apply also to the suits filed before the date of notification. Exception could be recognized only in favour of cases in which decree had already (1) PLD 1961 SC 69 been obtained by the pre-emptor. The judgment in the case of Muhammad Suleman etc. v. Abdul Ghani (1), referred to by learned counsel for the appellant deals with entirely a different matter whether notification debarring right of preemption will be effective from the date of notification or from the date when published in official Gazette.
5. In the result, I hold that the appellant was rightly non-suited as he had ceased to retain superiority of his claim till the end of the suit and affirm the findings of the Courts below. The appeal is dismissed with costs.
(1) PLD 1978 SC 190