' Agricultural land measuring 93 Kanals and 16 Marlas situated in village Budial, Tehsil Talagang, District Attock, was sold by the original owners in favour of respondents 1 to 3 vide Mutation No, 2833, dated 27-6-1973. The appellant Ghulam Ali pre-empted the sale on the ground that he was tenant of the suit land at the time of its sale and thus had brst right of pre-emption. The sale was also ,pre-empted by Pir Muhammad Shah respondent No, 4 herein on the ground that as owner in the estate and as collateral of the vendors, his right of pre-emption was superior qua the vendees.
2. These suits were of course filed prior to the amendment brought about in the year 1976 in paragraph 25 of M. L. R. 115, whereby it has been provided that a suit for pre-emption filed by a tenant shall be triable by the Collector. Thus, the suits by the aforementioned two rival preemptors in the under consideration appeal were filed before the civil Court: The said learned Court consolidated both the suits and on the basis of parties pleadings in the consolidated suits framed the necessary issues. The issue relevant for the purpose of the present appeal is reproduced as under :- "Whether both the pre-emptors have superior right of pre-emption, if so, what is their position inter se ?"
' As regards the remaining issues there is no dispute between the parties.
' The sale price of Rs, 10,000 has been held-to have been fixed in good faith and actually paid. The dispute about valuation of the suits has also been sorted out already. It is an admitted fact that both the rival pre-emptors have a better right of pre-emption as against the vendees. The only point for determination is with regard to their position inter se. The learned trial Court vide its judgment and decree dated 3-4-1976, dismissed the suit of the appellant on the ground that on account of restrictions contained in paragraph 24 of M. L. R. 115, the land could be purchased only by an owner in the Deh and not by any stranger. It was observed that the appellant who claimed his right of pre-emption on account of being tenant was not an owner and, therefore, he was not entitled to purchase the suit land, in view of the restrictions contained in paragraph 24 ibid. Thus the suit filed by respondent No, 4, the rival pre-emptor was decreed on payment of Rs, 10,000.
3. The appellant feeling aggrieved went in appeal but his appeal was also dismissed on 30-7-1977 by the learned Additional District Judge, Campbellsport.
4. The aforesaid judgments and decrees passed by the learned Civil Judge and the learned Additional District Judge have been impugned through the present regular second appeal.
5. The appellant has been non-suited in view of the provisions of para. 24 of Martial Law Regulation No, 115, which reads as follow :- "24. Restriction on alienation of holdings.-
(1) .
(2)
(3)
(4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding : ' Provided that he may alienate the entire holding or, in the case of a holding which is less than a subsistence holding, sell any part of,his holding to other owners of the same village."
' The restriction provided in paragraph 24 supra is on the alienor. In the circumstances of the present case, the alienor made the alienation in favour of respondents 1 to 3, the vendees, vide Mutation No, 2833, dated 27-6-1973. Both the rival pre-emptors viz. The appellant and respondent No, 4 by filing their respective suits sought to pre-empt the sale made in favour of respondents 1 to 3 and wanted to be substituted in place of the said respondents i,e, the vendees. The right of pre- emption is admittedly , a right of substitution. It is not an alienation as such and, therefore, while(' exercising such a right of substitution, the restrictions placed on aliena-IB tions are not legally attracted. In Muhammad Ibrahim v. Havaldar Muhammad) Ilyas and 3 others (1), it has been held by this Court that right of preemption is not a right of re-purchase but it is a right of substitution and a successful pre-emptor is substituted in place of the purchaser. In this view of the matter, prohibition on the sale or purchase of agricultural land in border area by an allottee under Martial Law Regulation No, 9 of 1959, does not operate against a pre-emptor who exercises his right
(1) 1983 CLC 963 under a different law, viz. The Pre-emption Act. Similarly, in Abdul Ghafoor and others v.
Muhammad Ismail (2), it has been observed by the Supreme Court of Pakistan that the restriction contained in paragraph 24 of Martial Law Regulation No, 115 is on the vendor and that a pre- emption decree does not fall in the category of alienation by sale, mortgage, gift or otherwise. It is an adjudication by the Court and enforcement of a right under an altogether different law of which notice has been taken in the Regulation by making a supplemental provision with regard to the right of pre-emption of tenants. It has been further observed in this case that the sale in favour of the first vendee having been completed and being in accordance with the law contravening no provision of the Regulation amounted to a valid sale and the pre-emptor only substituted the vendee in a sale which but for such substitution remained intact. It has also been observed that a tenant has been allowed under paragraph 25 of the Regulation to pre-empt the sale of land to the extent of his tenancy.
6. In the light of the law enunciated by the Supreme Court of Pakistan and this Court in the aforementioned precedent cases, it would transpire that the learned Courts below erred in law while coming to the conclusion that by virtue of the provisions of paragraph 24 of Martial Law Regulation No, 115, the appellant who was not an owner in the estate could not successfully pre- empt the sale on the ground of being a tenant of the suit land. He, as a tenant has, in fact, the first right of pre-emption. His right is, therefore, preferential to that of respondent No, 4.
7. For the foregoing conclusions this appeal is allowed. The impugned judgments and decrees are set aside and the suit of- the appellant for possession of the land in dispute by pre-emption is decreed on payment of Rs, 10,000 to be deposited, less the sum already deposited by him as Zar- e-Panjam, on or before 23-5-1985, failing which his suit shall stand dismissed and in that eventuality the suit of the rival pre-emptor i,e, respondent No, 4 shall be deemed to have been decreed on payment of same amount of Rs, 10,000 which he shall deposit, less the amount already deposited by him as 1'5th of the sale price, on or before 23-6-1985, failing which his suit shall also stand dismissed. In all events the parties shall bear their own costs.
(2) PLD 1982 SC 364