This is an appeal against the judgment and decree of the learned Additional District Judge, Gujrat, dated the 13th of September 1966, whereby he reversed the judgment and decree passed by the trial Court in favour of, the plaintiff-appellant on the 24th of September 1965.
2. Briefly the facts of the case are that Fateh Khan and Fazal Elahi, sons of A.I of village Kotha, and Muhammad Khan, son of Taj Din of village Dhonchal purchased land measuring 61 kanals and one marla allotted to Mst. Karman of village Barnali in village Bbago, Tehsil Kharian District Gujrat, vide mutation No. 2258 sanctioned on the 30th of November 1963, The plaintiff filed a suit for possession by way of pre-emption against the vendees claiming that he being co-sharer in the Khata and Patti had a superior right of pre-emption and only a sum of Rs.11,500.00 was paid as price of the land instead of Rs.13,000.00 as claimed by the vendees. The suit was resisted by the vendees on the ground that the vendor was only an allottee of the land and as such, the sale of allottee rights was not pre---emptable. They also denied the superior right of the plaintiff and claimed that they purchased the land for Rs. 13,000.00 and this amount was paid to the vendor.
3. On the pleadings of the parties the following issues were framed
(1) Was the sale in question subject to 'tight of pre-emption? O. P. P. (objected to).
(2) Did the defendants pay Rs. 13,000.00 to the vendor or was this sum fixed in good faith as the price for the suit land ? O. P. P.
(3) What is the market value of the .Suit land? O. P. P.
(4) Does the plaintiff enjoy a better right of pre-emption against the defendants ? O. P. P.
(5) Relief.
After recording evidence of the parties the learned trial Court decree the suit of the plaintiff on the 24th of September 1965. The vendees filed an appeal before the Additional District Judge, Gujrat, which was accepted on the 13th of September 1966. Hence this second appeal.
4. There are two Full Bench judgments in favour of the proposition that allotted land could be subject of pre-emption. One of them is Taza Gul and another v. Said Ghulam (PLD 1967 Pesh. 157).
In this case it was considered that sale of proprietary rights by a person permanently settled on land under the Displaced Persons (Land Settlement) Act, 1958, could be pre-empted under the N.- W. F. P. Pre-emption Act (XIV of 1950) since the land vested absolutely in the allottee by virture of section 16 of the Displaced Persons (Land Settlement) Act, 1958. In the Lahore case A.I Muhammad v. Mahmood-ul-Hassan (PLD 1968 Lah. 329) learned Judges considered the question of pre- emption in regard A to the right or interest of a confirmed allottee in the land allotted under the Rehabilitation Resettlement Scheme framed by the former Punjab Province. It was held that the right and interest of such a person in the property allotted to him under the Rehabilitation Settlement Scheme is "immovable property" and its sale is covered by sections 4 and 6 of the Punjab Pre---emption Act (1 of 1913). It was also held that section 16 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) is a complete bar to the suit for possession to enforce the right of pre-emption through a civil Court. A learned Single Judge, who was the senior member of the Full Bench referred to above, in Sher Muhammad and others v. Azmat A.I (PLD 1968 Lah. 1171) held that various provisions in the Displaced Persons (Land Settlement) Act do not constitute bar to pre-emption suit in respect of sale of land in the compensation pool. Pre-emptor in such cases does not proceed against the land in compensa--petition pool for any claim, but he only seeks substitution of his name in place of the vendee. Reliance was placed on these cases and it was urged that the judgment and decree of the learned Additional District Judge should be set aside and the suit for pre-emption filed by the plaintiff be decree in his favour.
5. A number of objections were raised against the claim of the plaintiff. It was contended that the suit was time-barred. According to section 30 of the Punjab Pre-emption Act, the suit is to be filed within one year from the date of the attestation of mutation by the Revenue Officer which was attested on the 30th of November 1963. By virtue of section 12 of the Limita--petition Act, the period of limitation prescribed for the suit ex--cludes the day from which such period is to be reckoned. It was further contended that even if the suit was within time by virtue of section 12 of the Limitation Act, no suit could be filed in regard to the property in the compensation pool since it was exempted from proceeding against for any claim in any manner whatsoever in execution of any decree or any process of Court. The period of limitation having expired on the 30th of November 1964, the suit was beyond time as the property could not be proceeded against until it was permanently settled on the allottee, which is 24th of December 1964, by virtue of Ordinance XIII of 1964. The cause of action could only accrue from this date. This question has already been examined in Sher Muhammad's case and I am respectful agreement with the opinion expressed in that case. Section 6 of the Dis--placed Persons (Land Settlement) Act does .Not constitute bar to a pre-emption suit in respect of the sale of this land, because the pre-emptor only wants his name to be A replaced with that of the purchaser from the allottee. No pro--cess in regard to the property in compensation pool is issued in such circumstances. The suit was, therefore, within time. Although this plea was not raised in the pleadings by the defendants, this being a question of law was allowed to be raised in second appeal, since section 3 of the Limitation Act provides that a suit shall be dismissed if it is Tiled beyond the; period of limitation, though question of limitation has not been raised in defence.
6. Next point urged was that section 16 y in the original Act was replaced by virtue of Ordinance XIII of 1964. This original section conferred upon the allottee the rights and title on him to transfer or alienate the land, but in the substituted section the words used are "the land on which a displaced person is permanently settled under this Act shall vest absolu--tely in such person". Learned counsel tried to create distinction that since the words "transfer and alienate the same" have been deleted in the substituted section 16, the allottee on whom permanent rights are conferred is not freely entitled to sell the property, his allotment being liable to cancellation, reduction and termination in view of the powers vested in the Chief Settlement Commissioner under sections 10 and 11 of the said Act. It was contended that allotment being under this peril, absolute title does not vest in the allottees, and right of aliena--petition has been specifically withdrawn by virtue of new sec--petition 16. This reasoning if approved is likely to lead to prepos--terous results. Displaced persons would be deprived of the right of gift or sale which right was already conferred upon them, when the land was provisionally allotted to them under Para--graph 14, Chapter II of the West Pakistan Rehabilitation Settlement Scheme. Permanent rights conferred on the allottees under this Scheme by virtue of clause (3) of section 15 of the Displaced Persons (Land Settlement) Act, 1958, can by no means be such rights.
7. The change in section 16 of the Displaced Persons (Land Settlement) Act is of little consequence.
Cumber some procedure of mutating the land first in the name of the Central Government and then in the name of the allottee, which had to be adopted under the Displaced Persons (Land Settle--ment) Rules, 1959, has been avoided by Ordinance XIII of 1964. The rights of alienation, therefore, had not been taken away. Similarly, the application of sections 10 and 11 of the Displaced Persons (Land Settlement) Act is of no consequence. Under the Scheme referred to above, the right of sale, ex--change, gift, will and mortgage was subject to the full and final settlement of any Government dues including the rehabi--litation fees or if the allottee is subsequently found to have obtained land by fraud or misrepresentation, such an alienation was to be considered as void.
Almost similar provisions are mentioned in sections 10 and 11 of the Displaced Persons (Land Settlement) Act. Fraud vitiates all transactions and this principle is applicable to all deals in regard to every kind of property. Existence of this provision in the law would not, therefore, bar any sale of the allotted property.
8. According to section 6 of the Punjab Pre-emption Act, 1913, the right of pre-emption exists in respect of agricultural land and village immovable property. This right according to the learned counsel for the respondents was not available to the plaintiff' as the sale in the instant case was that of the right of allotment in the land which does not fall within the purview of section 4 of the said Act. Considering the question of the kind of right in allotment in Syed Abdul Rashid v. Pakis-- tan and others (PLD 1962 SC 42) their Lordships have observed as follows: "It is difficult, in the circumstance, to imagine how it can be said that the interest acquired by the allottee in the pro--perty is merely a personal interest which cannot be inheri--ted. In our view, having regard to the rights expressly con--feered upon him by the Scheme itself, an allottee, in whose favour an allotment has been confirmed, acquired a right which is in every sense of the term a `real property' in its true juristic concept an interest in land."
PLD 1968 Lah.329) their Lordships held as under: "There is yet another aspect of the case. In Abdul Rashid v. Pakistan, it was held that subject to the conditions of allotment and the right of resumption, the allottee becomes clothed with all the other usual incidents of at least an occupancy tenant in the lands so allotted. Thus, he may, subject to those conditions or covenants, deal with the same as any other such tenant would have been entitled and may even dispose of them or alienate them either by an instru--ment inter was or by will. In this view a confirmed allottee acquires rights which are in the nature of occupancy tenancy.
Sale is defined in section 3 (5) of the Punjab Pre---emption Act to mean `sale shall not include (a) sale in execution of a decree for money or of an order of a civil, criminal or Revenue Court or a Revenue Officer, (b) the creation of an occupancy tenancy by a landlord, whether for consideration or otherwise. But the sale of occupancy rights is also pre-emptiable under the Punjab Pre-emption Act."
9. Sir Shadi Lal in his Commentary on Law of Pre---emption (Third Edition) at page 61 has opined as under: "Right of Occupancy is agricultural land. In the present Pre-emption Act, section 3, subsection (1), the provision that agricultural land includes a right of occupancy has been removed as superfluous, inasmuch as the definition of lana as given on the Punjab Alienation of Land Act, section 2, sub--section (3), has now been made exhaustive by the Amending Act I of 1907 by addition of clause (f) to the definition which clause runs thus-(f) any right of occupancy'. It is clear, therefore, that a right of occupancy is still 'agricultural land' for the purposes of the Pre-emption Act, 1913, and a sale thereof is subject to pre-emption, as it always has been ; (Ellis, P, 38) indeed, the special mention of the right of occupancy in the definition of `agricultural land' is not necessary, because the Chief Court has laid down in 11 P R 1904 that the word `land' in the Punjab Alienation of Land Act, 1900 includes an occupancy right in land. It is thus obvious that occupancy rights in agricultural land are `agricultural land' and if an occupancy tenant sells his right to another person, he sells land, and a right of pre-emption arises in respect of such sales."
10. Relying on Notification No. 657-R, dated the 3rd of April 1958, for the creation of new group of agricultural tribes, learned counsel argued that there is no distinction left between the plaintiff and the vendees, because both of them fall with--in the same group of the agricultural tribe. No doubt alt persons holding land as landlord or tenant or ordinarily residing anywhere in Punjab have been brought in one group of agricul--tural tribe for the purposes of Punjab Alienation of Land Act, 1900, but the right of pre-emption would still be available to persons holding land in the estate in preference to those persons who come from adjoining estate. Co-sharers and owners in the same estate will continue to enjoy preferential rights of pre---emption of the agricultural land in the estate.
11. It was next argued that the Displaced Persons (Land Settlement) Act, 1958, being Central Law will hold the field in preference to the Punjab Pre-emption Act, 1913, by virtue of Article 134 of the Constitution, since the former Act prohibits the right of sale to the allottees in view of the change in section 16 of the Amended Act of 1958. I have discussed at length the effect of section 16 and it is not necessary to further reiterate that point. Since according to my humble view there is no conflict between the two Act, the question of preference of the former Act, therefore, does not arise. The allottees on whom permanent rights have been conferred have the right of sale of such property and such a sale has been held pre-emptiable in the above discussion.
12. It was next argued with vehemence that law of Pre---emption comes in conflict with Fundamental Rights and as such has become invalid piece of Legislation. Reliance was placed on an Indian case Bhau Ram v. Baij Narh Singh and others (AIR 1962 SC 1476) in which the right of pre-emption by vicinage in urban immov--able property has been held to be in conflict with Funda--mental Right 19 (f) of the Indian Constitution. The facts of this case are not relevant. In the first place, the case deals with section 16 of the Punjab Pre-emption Act which relates to the property situated in town or sub-division of town and not section 15 of the Punjab Pre-emption Act, which applies to the right of pre-emption in respect of sale of agricultural land, or village immovable property. On page 1482 the learned Judges observed that: "We are not here con-- cerned with section 15 and express no opinion with respect to it". Dealing with the first, third and fourth grounds mentioned in section 16 the learned Judges held as under: "We have no doubt that a law giving such a right imposes a reasonable restriction which is in the interest of the general public. If an outsider is introduced as a co-sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common. The result of the law of pre-emption in favour of a co-sharer is that if sales take place the property may eventually come into the hands of one co-sharer as full owner and that would naturally be a great advantage. The advantage is all the greater in the case of a residential house and section 16 is concerned with urban property, for the introduction of an outsider in a residential house would lead to all kinds of complications. The advantages arising from such a law of pre-emption are clear and in our opinion outweigh the dis--advantages which the vendor may suffer on account of his inability to sell the property to whomsoever he pleases. The vendee also cannot be said to suffer much by such a law because he is merely deprived of the right of owning an undivided share of the property. On the whole it seems to us that a right of pre-emption based on co-sharership is a reasonable restriction on the right to acquire, hold and dispose of property and is in the interest of general public.
(12) The same reasoning in our opinion will apply to the third ground, "where the sale is of a property having a staircase common to other properties, in the owners of such properties". This ground stands on the same footing practically as the first ground relating to co-sharers, and for the same reason we hold that it is a reasonable restriction, and is in the interest of a general public.
(13) Turning now to the fourth ground, "where the sale is of a property having a common entrance from the street with other properties, in the owners of such properties", this ground is in our opinion similar to the third ground, the only difference being that in one case there is a common staircase while in the other case there is a common private passage from the street. The idea behind this ground seems .To be that the buildings are in a common compound and per--haps were originally put up by members of one family or one group with a common private passage from the public street. In such a case the owners of the buildings would stand more or less in the position of co- shares, though actually there may be no co-sharership in the house sold. But as we have said this case would approximate to cases of a common stair-case and co-sharers; therefore, for reasons given in the case of co-sharers we uphold the right of pre-emption covered by the fourth ground in section 16. The case falling under the fourth ground must be distinguished from Katras which are exempt from the provisions of the Act in section 5: (see Karim Ahmad v. Rahmat Elahi AIR 1946 Lab.
432).
(14) A contention was also raised that section 16 offends Art. 14 of the Constitution. This was based on section 5 of the Punjab Act which gives exemptions to certain properties from the application of the Act and also on the ground that it did not apply to agricultural property. So far as agricultural proper--ties are concerned, they form a distinct class by themselves and therefore there can be no question of discrimination on that account."
The learned Judges, however, held that the right of pre---emption based on vicinage can have no force now and the law must be held to her unreasonable restriction on the right to acquire, hold and dispose of property as guaranteed by Article 19(1) (f) of the Constitution. The right of pre- emption in the instant case is not based on vicinage, and the finding of the Supreme Court of India are not attracted.
13. I need not have considered this aspect of the case --since Fundamental Rights have been taken away by Clause (3) of Paragraph 2 of the Provisional Constitution Order, 1969, but in the instant case the suit was filed when Fundamental Rights were in existence. Right to sue will naturally come under cloud if the vires of the Act is challenged. First Amendment to the Constitution was made on the 10th of January 1964, and the suit was instituted on the 30th of November 1964. Learned counsel submitted that the suit was not maintainable when it was filed, though at the time of passing the decree, i.e. 24th of September 1965, the Fundamental Rights had been superseded by the declaration of Emergency by the President on the 6th of September 965. Despite this plea had vanished when the suit concluded, yet I would like to examine this question in the light of the provisions of our own Constitu--petition :- "Fundamental Right S.-Freedom of movement-Subject to any reasonable restrictions imposed by law in: the public interest, every citizen shall have the right to move freely throughout Pakistan and to reside and settle in, any part thereof."
Law of pre-emption according to the learned counsel is a. Clog in the settlement of an individual in a place of his own choice and `settlement' according to him includes right to hold property in that part. The very paragraph begins with "subject to any reasonable restriction imposed by law in the public interest". It, therefore, provides that reasonable restrictions cans be imposed even on the movement and settlement of an individual. The Pre-emption Act does not bar coming to that village of an individual who does not own property in that estate.
However, it only creats restrictions on him to buy property in that particular area in preference to another person. He can buy provided nobody objects to his purchase and it cannot necessarily, be presumed that every sale will be challenged. The right of challenge may or may not be exercised by the owners in that estate. Moreover this does not mean that the vendees intend to settle in the estate where they have purchased land. They are residents of two different villages away from the estate of village Bhago where the property is situated. It, therefore, cannot be said that restriction has been imposed on their settlement in village Bhago. Only preferential right to purchase land is available to the plaintiff. Such preference cannot be held to be unreasonable restriction, against public interest in order to keep the village community a compact society. Learned counsel further submitted that this kind of society should no more be in existence in Pakistan after independence.
The displaced persons a new society has been introduced in the village and in any case the village community no more remains a compact society of thepre---Independence period. The right of pre-emption is available to the owner in the estate and if the new settler, who by operation of law has become the owner in the village intends to sell his property, surely it cannot be said that he is a loser if the local inhabitants of the Chak have the preferential right to acquire that property. All that he is interested in is the market price of the land which the pre-emptor has to pay if he wants to preempt the land sold by the transferee under the Displaced Persons (Land Settlement Act, 1958.
14. Fundamental Right 13 deals with property rights which is reproduced as under :- "13. Provision as to property.-Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to acquire, hold and dispose of property."
Learned counsel says that the restriction imposed by the Pre-emption Act on the sale and purchase of the property can-not be said to be in public interest. He submitted that in Muslim Society every body should be free to buy and sell the property. Learned counsel seems to have lost sight while making this submission to the fact that law of pre-emption is recognized by Muslim Jurists and in fact the Muslim Rulers brought this law with them and enforced it in Indo---Pakistan Sub-Continent, which acquired the nature of `custom' in the non-Muslim society. Such restrictions, therefore, can--not be declared against public interest. It is surely in public interest to keep intact the family life of Muslims and restrictions on sale and purchase of houses, lands and groves cannot be held as unreasonable and against public policy, more especially when their origin can be traced to a Hadith by Jaber with which I will deal at a later stage.
15. A co-sharer has only to give notice to the other co---sharer that he intends to sell his share in the property. If he is interested he may buy. If he does not intend to purchase and the property is sold within his knowledge to some out--sider he cannot later come round and challenge the sale.
In these circumstances to my mind it cannot be said that obligation of making an offer to the co- sharer for the purchase of the property intended to be sold is unreasonable when he has to pay market value as its price if he so chooses to buy it. I have already dealt with regard to the so-called restriction on acquisition of property by an outsider in the preceding para--graph. Suffice it to say such an outsider will come next in the line to purchase it and he cannot be debarred altogether, because every sale is not necessarily to be pre-empted by the co-sharers or the local land holders in the estate. He can, therefore, acquire and hold property in an estate subject to the above restriction which cannot be considered to be unreason--able.
16. It was submitted that the purpose of allotment to displaced persons was their economic rehabilitation and, therefore, as its result a large number of displaced persons belonging to different communities settled in the same village. All of them acquired the status of a `displaced person' and, therefore, became a different community from one of the local inhabitants in the estate. Original inhabitants in the estate may claim right of pre-emption against each other, but their claim cannot extend to a different community. There is little force in this submission, because the land in the estate, if it is intended to be sold outsider, the local inhabitants who have preferential right , purchase it, cannot be deprived of it for the reason that the property vested in the displaced person. Moreover, these persons stepped into the shoes of the evacuee land-owners in the estate. If the right of pre-emption was available to the original pro--prietors against the evacuees, it cannot be curtailed for the reason that the property has gone into different hands.
17. The argument would also be fallacious for the reason that if there are two tribes or communities in the village, accord--ing to the learned counsel, the former i. e. Local owners, may have right of pre-emption in regard to the property of locals only but not the property in the hands of the second class, namely, displaced persons, and the latter group by no means can have the right to claim the property of their co-sharers on the basis of pre-emption. It will not only be discriminatory and illegal but is likely to cause great hardship to both the categories. The right of pre-emption will, therefore, be available to any land-holder in the estate whether the person is a local inhabitant or a displaced person.
18. Examining the question as to whether the law of pre-emption has become obsolete Craies on Statutes Law (Sixth Edition) and Maxwell on Interpretation of Statutes (Eleventh Edition) have been referred. On page 357 of Craies "Obsolete Acts" have been defined as under :- "Obsolete.-Where the state of things contemplated by the enactment has ceased to exist, or the enactment is of such a nature as to be no longer capable of being put in force, regard being had to the alteration or social circumstances."
It cannot be said that the conditions which contemplated for the enactment of the Punjab Pre- emption Act ceased to exist. These conditions are prevalent today and are being followed in this par of the country ever since its conquest by the Muslim Rulers. Muslim Jurisprudence well recognises the law of pre-emption. There is no difficulty in putting into operation of this law and our political and social circumstances are by n o means changed for the time being we are living in a country which claims to be Islamic Republic of Pakistan. The concept of Muslim law cannot, therefore, be forgotten. It cannot be said that the law of pre-emption has not been in usage and as such has become an antiquated Act and its effect has been nullified.
19. Maxwell on Interpretation of Statutes (Eleventh Edition) at page 394 has observed as under :- "A law is not repealed by becoming obsolete."
20. Lastly it was contended that law of pre-emption is not an antique custom in the Indo-Pakistan Sub-Continent, but in fact it was thrust upon the local inhabitants by the Muslim Conquerors who brought the idea as part of their personal Law. Dealing with the origin of pre-emption in Indo- Pakistan Sub---Continent Mahmood, J. In a Full Bench case Gobind Dayal v. Inayatullah (I L R 7 All.
775) has exhaustively dealt with the proposition as under "I will deal with the matter under three heads; firstly, the history of the law of pre-emption, and its introduction into India; secondly, the manner in which it has been administered by the British Courts; and thirdly, the Muhammadan texts upon which my conclusion are founded,"
He cited from Sir W. Macnaghten's Principles and Precedents of Muhammadan Law, page 14, which says :- "Sales of land and other immovable property are clogged with an incumbrance, which is not, however, peculiar to this Code. I allude to the law of pre-emption. This confers the privilege on a partner or a neighbour to preclude any stranger from coming in as a purchaser, provided the same price be offered as that which the vendor has declared himself willing to receive for the property to be disposed of."
The author of this judgment discussed whether pre-emption prevailed originally among the Hindus. He referred to Maha Nirvana Tantra, a work which chiefly treats of mythology, a passage which would seem to imply that pre-emption is recognised as a legal provision according to the notions of Hindus. He carefully examined various books by eminent authorities of Hindu Law like Dr. Rajendralal Mitra who being an eminent Sanskrit Scholar observed "The word `Samanta' is everywhere defined to mean owner of an adjoining property, and not the right which such an owner has to claim precedence in purchasing his neighbour's Property. The word occurs first in Mannu (Volume VIII, 258), and there it means `neighbour' and most of the other text-- writers have since used it invariably in the same sense,"
He then quoted Dr. Jolly of the University of Wirzburg, Germany an eminent authority, who acted as the Tagore Professor of Hindu Law at the University of Calcutta saying: "The only trace of pre-emption in the Hindu Law which I am aware of occurs in a text quoted in the Mitakshara and other standard law-books. It is as follows :- `Transfers of landed property are effected by six acts : by consent of fellow-villagers, kinsmen, neighbours, and co--parceners, and by gift or gold and water: This text indicates clearly the existence in the early period of the Hindu Law of a feeling that a transfer of landed property is not valid unless the neighbours, fellow-villagers, and others who are but remotely concerned with it should have given their consent to its being effected.
He also observed as under :- "Adopting the authority of these eminent Sanskritists, there is no doubt in my mind that the question which Sir William Macnaghten regarded as open to doubt is in reality not so, and that there has never been such a right as that of pre-emption recognised by the Hindu Law, though 1 cannot forget that the rule of that law which prohibits any member of a joint undivid--ed family from selling his share in the joint property without the consent of his co-parceners, aims at a result not dissimilar to that which the Muhammadan Law of Pre-emption is intended to achieve."
21. The learned Judge then went on to say: "The law of pre-emption is essentially a part of Muhammadan jurisprudence. It was introduced into India by Muhammadan Judges who were bound to administer the " Muhammadan Law. Under their administration it became and remained for centuries, the common law of the country, and "was applied universally both to Muhammadan and Hindus, because in this respect the Muhammadan Law makes no dis--tinction between persons of different races or creeds. A Muhammadan and a Zimmee being equally affected by principles on which shafa or right of pre- emption is established, and equally concerned in its operation, are, therefore, on an equal footing in all cases regarding the privilege of shafa. (Hamilton's Hedayat, Vol. III, P. 592), What was the effect of this? In course of time, pre-emption became adopted by the Hindus as a custom."
This eminent Judge then discussed case-law during the British period in his judgment and finally came to the following conclusion that "pre-emption a right which the owner o` certain immovable property possesses, as such, for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable property, not his own, on such terms as those on which such latter immovable property is sold to another person.
22. Lastly dealing with the proposition the distinguished Judge referred to Hamilton's Hedayat and its translation at page 568, volume III. It read as follows :- "Pre-emption becomes obligatory (i.e. Enforceable) by a contract of sale, which means after the sale. Not that sale the cause of pre-emption, for the cause is conjunction (of the properties) as we have already mentioned. And the reason in the matter, is, that pre-emption becomes obligatory when the seller has turned away from (i. e. Wished to get rid of) the ownership of his house, and the sale makes this apparent. Hence proof of sale is sufficient as against him even to the extent of pre- emptor taking it (the house) when the seller acknowledges the sale, although the buyer contradicts him."
"He differed from the interpretation by Hamilton and further quoted other books, namely, "Durrul- Mukhtar" and "Aini", commentary upon the `Kanz! The short text from Durrul--Mukhtar is as under :- "The cause of pre-emption is the contiguousness of the pre---emptor's property with the purchased property, whether by co-parcenership or vicinage."
The learned Judge again quoted a more explicit passage from "Aini" which is to the following effect :- "By sale which must be referred to his expression `pre---emption becomes obligatory'. This would indicate that the cause of the obligatoriness of pre-emption is sale, that is the sale of the pre- emptional house, and some have held this very opinion. The correct opinion, however, is that .The cause of pre-emption is the conjunction of the properties in a necessary manner, and sale is a condition of pre-emption. From this it follows that pre-emption becomes enforceable by sale, that is, after its coming into existence."
He also referred to "Birjandi", a well-known Commentary on Muhammadan Law and also to "Zakhira". Lastly, he referred to a tradition of the Holy Prophet related by Jabir. It reads as follows :- "Pre-emption exists in all joint properties whether land or house or grove. It is not proper for him (the owner) to sell -till he has offered it to his co-parcener, who may take it or rejected it, and if the vendor fails to do this, his co---parcener has the preferential right to it until he is informed."
This judgment is a masterpiece in this field and every bit collection of jeweh of wisdom and thought. `Pre-emption' is no doubt an antique custom prevailing in this Sub-Contsnent and in any case, it is recognised and approved by Islam. It cannot, therefore, be disapproved for the simple reason that some pre--ference is available to certain individuals. Otherwise considering its merits and demerits, I am of the view that the advantages are greater than disadvantages. I must, however make it clear that I express no opinion in regard to section 16 of the Punjab Pre-emption Act, These observations of mine are only- relevant to agricultural land and village immovable property. The case in regard to right of pre-emption of pieces of land situated within urban areas may have to be examined entirely on a different level in the ever-increasing population of towns on account of the industrial development of the country.
23. For the foregoing reasons, the judgment and decree of the lower appellate Court is set aside and the suit of the plaintiff is decreed. Before parting with this case I must express my thanks to both Hakim Muhammad Sardar Khan and Mr. Zainul Abidin, learned counsel for the parties, who eminently assisted me in coming to this conclusion. Since the questions involved were fairly complicated, the parties are left to bear their own costs, and I grant the required certificate for permission to file Letters Patent Appeal.