' JAWWAD S. KHAWAJA, J.---We have heard learned counsel for the parties at length today. These two appeals arise out of pre-emption suits filed by the present respondents. The respondents claimed a superior right of pre-emption under section 15 of the erstwhile Punjab Pre-emption Act, 1913. There were two pre-emption suits, one filed by Ch. Nazir Ahmed plaintiff/respondent and the other by Muhammad Aslam etc. The two pre-emptors sought to pre-empt the sale affected in favor of the present appellants/defendants vide registered sale-deed dated 24.3.1973.
2. The learned Trial Court decreed both pre-emption suits vide judgment dated 25.2.1979 in the ratio of 50% in favor of each set of pre-emptors, but on appeal the learned Additional District Judge reversed the findings of the Trial Court and proceeded to dismiss the suits through an appellate judgment dated 15.9.1981. It is in second appeal that the learned Single Bench of the High Court set aside the judgment of the Appellate Court and restored the decree passed by the learned Trial Court.
3. We have gone through the impugned judgment and the record with the assistance of learned counsel for the parties. Taking up, at the outset, the impugned judgment whereby RSA Nos. 118/81 and 29/82 were allowed and having gone through the record, we are of the opinion that for the reasons recorded below, the judgment and decree dated 15.9.1981 rendered by the learned Additional District Judge must be affirmed by setting aside the appellate judgment of the High Court impugned before us.
4. Although the record of the case is voluminous, the relevant facts which enable lis to decide these two appeals are relatively simple. The present appellants, as noted above, purchased the suit property through a registered sale-deed dated 24.3.1973. The respondents/plaintiffs claimed a superior right of pre-emption under section 15 of the Punjab Preemption Act, 1913 on the ground of being owners in the estate while asserting that the appellants/defendants had no land in the estate. The question, therefore, which is dis positive of these appeals, is as to whether the plaintiffs/respondents were able to establish their superior right of pre-emption as aforesaid and as asserted in their respective plaints.
5. It is correct that the appellants were not owners in the estate prior to the sale-deed in their favor dated 24.3.1973. The respondents/plaintiffs claimed to have purchased at an earlier date, property in the estate from Suba s/o Dasondi. The evidence, which is documentary, has been considered by us. This shows that Suba s/o Dasondi had been granted certain rights in the land by the Settlement Department. The evacuee owners, of the land, however, were not full owners but were allottees under the Colonization of Government Lands (Punjab) Act, 1912. The rights of the evacuee owners, whatever they were, came to vest in the Federation and it is only such rights which could have been and were transferred to Suba s/o Dasondi. The evidence on record, including the relevant mutations and jamabandis, shows that Suba was only a ta'iundar (URDU TEXT). The ground which has been urged by both sets of respondents before us is that Suba s/o Dasondi had became full and absolute owner of the property allotted to him and, therefore, he could have transferred his title to the respondents. It is on the basis of the said title purportedly acquired by the respondents from Suba that they laid claim to a superior right of pre-emption. This factual foundation of the claim made by the respondents/plaintiffs, however, is not borne out from the record as considered below. They being plaintiffs and asserting they were owners in the estate were obliged under the law to prove their assertion.
6. We are satisfied having considered the evidence including particularly RL-II (Ex.P-9), that the Central Government was the owner of the land and only those rights had been transferred which had come to vest in the Federal Government by operation of section 4 of the Displaced Persons (Land Settlement) Act, 1958. It is apparent from the exhibited documents on record that it was only such rights as ta'iundar which were transferred to Suba s/o Dasondi. The revenue record shows that Suba was not shown as owner of the land though his name appeared as cultivator. The superior right of pre-emption vested in that person under the Punjab Pre-emption Act, 1913 who was the owner in the estate and not a mere cultivator. We are not in the slightest doubt that whatever rights may have come to vest in Suba s/o Dasondi, these did not constitute full and absolute title in the land. This is also demonstrated by the fact that the land was resumed by the Government on 20.10.1970 due to non-payment of instalments thus showing that title was not vested in Suba.
7. Learned counsel for the respondents/plaintiffs argued vehemently that under the provisions of section 15 of the Colonization of Government Lands (Punjab) Act, 1912, once the allottee had made payment of the price in accordance with the schedule of payments given by the province and after he had fulfilled the terms and conditions of the allotment, he became absolute owner of the allotted land, even if the grant through a conveyance deed was not executed in his favor by the government. This contention is misplaced in the circumstances of the present case. We can accept that as between the allottee who had paid the full amount and the Provincial Government, the Provincial Government may not be in a position to deny the right to title and the proprietary interest vesting in the allottee. This general principle of law however, cannot benefit the respondents/plaintiffs in the present case. We have noted firstly, that even the mutation, which had been made in favor of the respondents stood cancelled in 1970 and at the time the appellants purchased the property on 24.3.1973, the revenue record did not show them as owners or even cultivators of the property in question. It was argued that mere entry in-the revenue record could not be sufficient to deny the fact that the respondents had become owners. This submission, however, loses sight of the fact that the appellants were only cultivators even before 1970.
Moreover, they did not diligently pursue their affairs with the revenue department and as a result they only were able to have the cancellation of the mutation set aside in 1974, but by that time the appellant/defendants had already acquired title in the suit property.
8. Secondly, it is to be noted that under the Punjab Pre-emption Act, 1913 a superior right of pre- emption on the basis of ownership in the estate, can only be claimed when such ownership is vested and complete. Thus where a person is a ta'iundar only and not the full owner, his right of preemption based on ownership in the estate will only arise after title has been transferred to him.
In the present case, it is undisputed that title in the land was vested firstly in the Federal Government and then in the Province. Suba s/o Dasondi was only described as ta'iundar in the cultivator's column and even the mutation in his favor as cultivator stood cancelled on 20.10.1970.
The conveyance deed was executed in favor of the respondents-plaintiffs in 1981 as successorsin- interest of Suba. It is for this reason that the respondents could not claim to be owners in the estate regardless of the fact that the Province may not be able to deny their right to acquire proprietary rights. It is the third party interest which has come to vest in the appellants-defendants through registered deed which cannot be dislodged through pre-emption in these circumstances. We may also at this point advert to Article 23 of the Constitution which specifically provides that "every citizen shall have the right to acquire, hold and dispose of property ... Subject to any reasonable restrictions imposed by law in the public interest". The two pre-emption suits were filed by the respondents-plaintiffs when the said Constitutional provision was already in the field and had to be given due effect. As noted above, the appellants-defendants could only be deprived of their title in the disputed land when clear and complete title was proved by them to have come to vest in them. This fact has not been proved on record. On the contrary what the respondents-plaintiffs have established is that their vendor namely Suba was a ta 'iundar while the Government was appearing consistently as owner in the record-of-rights at all material times. If the appellants are to be deprived of their right to property on the basis of the plaintiff being owner in the estate, the minimum requirement of law would be for the plaintiffs to prove they were vested with full title. This they have not been able to show. As such they have not been successful in establishing the foundation on which their claim to a superior right of pre-emption was based.
9. The learned Additional District Judge exercising appellate jurisdiction in the present case has taken pains to go through each and every document exhibited on record. It is after consideration of the said documents that the Appellate Court has come to the conclusion that the respondents/ plaintiffs had not been able to establish vested title which would have been a condition precedent for proving their claim to a superior right of pre-emption. The High Court has, however, not taken into account the detailed and exhaustive reasoning which appeared in the judgment of the Appellate Court. Instead, the High Court has relied on the case titled Haji Sultan Muhammad and another v. Muhammad Siddiq (PLD 1973 SC 347).
10. This precedent has been pressed into service on behalf of the respondents-plaintiffs even during arguments advanced before us today. The precedent, however, has no application in the facts of the present case. The question which arose in the cited case was based on facts and considerations which have no relevance or application in the present appeals. It was held in the above referred case that those allottees who had been granted rights in immovable properties under the evacuee or rehabilitation laws could sell their rights and that such sale would be pre- emptable under the Punjab Pre-emption Act, 1913. In the appeals before us there is no issue of preempting a sale made by an allottee of evacuee land. The question before us is as to whether the sale which was made by Suba S/o Dasondi in favor of the respondents could provide to the respondents the foundation (i,e, ownership in the estate) which would bestow on the respondents- plaintiffs the superior right of pre-emption under section 15 of the Pre-emption Act, 1913. This is a question which did not arise in the case of Sultan Muhammad (Supra). It is for this reason that the precedent does not help the respondents-plaintiffs.
11. In view of the foregoing discussion, we allow these appeals. The impugned judgment is set aside and as a consequence the appellate judgment rendered by learned Additional District Judge is restored and affirmed. There shall be no order as to costs.
' High Court Judgment Set Aside// Pre-emption Suit Dismissed.