MUHAMMAD HALEEM, ACTG. C. J-Leave in this appeal was granted to consider the question as to whether the sale of land which was confirmed in favour of the allottee, was pre-emptiable.
2. The appellant's mother, Mst. Raibi was a refugee from East Punjab and she allotted 14 acres of land in Mauza Virk, Tehsil Narowal, District Sialkot, which was later confirmed in her favour. She sold this land to respondents 1 to 4 by a registered sale-deed con 3rd of October, 1964, for a sale consideration of Rs. 14,000. The appellant pre-empted the sale of this land on 4th of October, 1965, by instituting a suit wherein she claimed to have a superior right as being her daughter vis-a-vis the respondents who were the strangers. They resisted the suit on various grounds that this land was not pre-emptiable and the issue was struck for giving a finding to the effect and the trial Court decreed the suit on 21st July, 1967, holding that Mst. Raibi has permanent rights in the land which were transferable. The first appellate Court, however, held otherwise and dismissed the suit on 18th of June, 1971, which finding was affirmed by the High Court on 13th of July, 1971 as it dismissed by its own appeal in limine. In deciding so, the High Court was guided by its own decision reported as Rukan-ud-Din v. Ghulam Mustafa and another (PLD 1970 Lah. 797).
3. Proceedings against respondents 1 to 4 were ex parte but on an oral request we allowed their counsel to contest the appeal. It is not disputed before us that Mst. Raibi was not a confirmed allottee of the land with permanent rights therein when the present sale was effected. What is disputed is that she had mortgaged rights in some land allotted to her which rendered it as non- pre-emptiable in view of section 25 of the Displaced Persons (Land Settlement) Act, 1958. This objection was not taken in the written statement and for that reason no issue was struck and no finding was given. I is now too late in the day to urge this submission and therefore it merit no consideration; and as to whether the sale of such land is pre-emptiable, is finally concluded by a judgment of this Court in Haji Sultan Muhammad and another v. Muhammad Siddiq and others ( PLD 1973 SC 347). The first appellate Court and the High Court, on an erroneous assumption held the sale not to be pre-emptiable for the reason that the provision conferring permanent rights on an allottee was inserted after the sale of the land is not so for even in the un amended sections 15 and 16 of the Displaced Persons (Land Settlement) Act, 1958, such power was there. There is n evidence to sustain that permanent rights were not confirmed thereunder on Mst. Raibi who was a confirmed allottee of the land sold.
4. Accordingly, we would set aside the order of the High Court and allow the appeal with costs.