' C.R. No. 8/79 and C.R. No. 9/79 were filed by the plaintiff-petitioner against the judgments and decrees of the Courts below who dismissed his suits and appeals under finding that the sale in favour of the second vendee, a Tarbela Dam effectee was exempted from the right of pre-emption.
Since there are involved more or less similar question of facts and law in the civil revisions, hence a disposal by a single judgment.
2. Dilbar and Maroof were the sharers in possession of Khasra No. 455/5 in an area of 11 Kanals 8 Marlas and Khasra No. 4 in an area of 4 Kanals 11 Marlas in equal share. Dilbar sold his share to said Rehman and Muhammad Younas (hereinafter called first vendees) by a registered deed dated 10- 12-1975 for a sum of Rs.2,000 price paid before the Sub-Registrar. Maroof sold his share to the said vendees by a registered deed dated 5-2-1976 for a sum of Rs.3,000 price also paid before the Sub- Registrar. The first vendees later on sold Khasra No. 4 in entirety to Muhammad Saleem (second vendee), a Tarbela Dam affectee, for Rs.2,000 by a registered deed dated 10-12-1976. Ghulum Haider, a contiguous owner of Khasra No. 4 but to have no right of pre-emption in respect of Khasra No. 455/5, as proved from the record, brought Suit No. 416/1 on 9-2-1976 and Suit No. 12/1 on 28-1-1977 in which Muhammad Saleem (second vendee) was also impleaded as defendant who contested the suits claiming exemption under section 7(2) of the N.-W.F.P. Pre-emption Act, 1950.
3. Before me the parties made an agreed statement of facts as regards the points in issue that the pre-emptor has the subsisting right of pre-emption in respect of Khasra No. 4 on the basis of contiguity. The sale prices as paid before the Sub-Registrar were to be deemed actually paid as consideration of the land. The pre-emptor's suits shall be deemed within time and that there was nothing wrong with the form of the suits. Pleas of estoppel and waiver were also not pressed. The only relevant issue begs determination is if the subsequent sale of Khasra No. 4 to Muhammad Saleem, the second vendee, was exempt from the right of pre-emption under section 7(2) of the N.-W.F.P. Pre-emption Act, 1950.
4. The original notification dated 16-4-1971 proceeds to state that:- "for a period of 8 years (three) from the date of publication of this notification no right of pre- emption shall exist with respect to sale of agricultural land not exceeding fifty (50) acres in a canal irrigated areas and or one hundred (100) acres in a non-irrigated areas and other immovable property not exceeding the market value of Rs. ten thousand (Rs.10,000) only in favour of persons displaced from Hazara and Mardan Districts in consequence of the construction of Tarbela Dam and certified to be so displaced by the Deputy Land Commissioner, Hazara, or the Deputy Land Commissioner, Mardan as the case may be."
' The said notification was extended from time to time and it is not disputed that at the time of the subsequent sale in favour of the second vendee, the notification regarding the exemption was in operation.
5. The notification as above contemplate exemption in respect of sales of agricultural land not exceeding certain area and immovable property not exceedings certain market value made in favour of persons displaced from Districts of Hazara (now Abbottabad and Mansehra) and Mardan in consequence of the construction of Tarbela Dam to be certified as such by the Deputy Land Commissioners of the Districts.
6. Muhammad Saleem, the second vendee, has been endorsed a certificate which is reproduced for reference as below:- "Tarbela dam Resettlement Organization WAPDA Ghazi' TO WHOM IT MAY CONCERN ' Certified that Mr. Muhammad Salim s/o Abdul Hakim of village Fareed Abad Tehsil Haripur District Hazara is an affected person of Tarbela Dam Project.
' His built up property i.e. H/No. 2 has been acquired in village Fareed Abad vide Award No. 79/C-III for the construction of Tarbela Dam Project.
Dated 22-3-1977 Ladd Acquisition Collector-1 TDRO. WAPDA, GHAZI, HAZARA.
'The above certificate, as appears to be, has been issued by the Land Acquisition Collector-I in the Office of Tarbela Dam Resettlement Organization WAPDA, Ghazi, Hazara and cannot be deemed to have been issued by the authority specified in the notification of exemption, i.e. the Deputy Land Commissioner of the District. The certificate simply reports Muhammad Saleem an affected person of Tarbela Dam Project because his built up property in village Fareed Abad has since been acquired for the construction of Tarbela Dam Project. The document does not certify that Muhammad Salim was displaced from District Hazara (now Abbottabad) in consequence of the construction of Tarbela Dam. As such the certificate has been on one hand issued by a person other than one authorised and specified under the notification and on the other hand, it does not fulfil its own requirement to certify that the person was displaced in consequence of the construction of Tarbela Dam. There has been, however, led evidence that House No. 2 in village Fareed Abad in the ownership of Muhammad Saleem son of Abdul Hakim was acquired for the construction of Tarbela Dam and that he had no other house in the said village. He has since settled down in village Haripur and has purchased a plot in Khalabat Township. He has no landed property in village Fareed Abad. He also claimed to have purchased the suit land allegedly for the construction of a house which plea has, however, neither been agitated in the pleadings nor is permissible to him as Khasra No. 4 is an area of 4 Kanals 11 Marlas, more than the two Kanals area acquisition of which by a resident to the extent is exempt from the right of pre-emption under section 5(c) of the N.-W.F.P. Pre-emption Act. It thus comes to that Muhammad Saleem, the second vendee, has proved from other evidence on record to be a displaced person of Tarbela Dam.
7. It was contended that the notification of exemption had also simultaneously prescribed the mode of proof of the fact to be a displaced person by a certificate to be issued by the Deputy Land Commissioner of the District and, as such, the fact can only be proved by the issue of the certificate. Such certificate is only a piece of evidence subject to rebuttal and there can be produced evidence Pro and Contra the proposition to supplement or rebut the certificate. In fact section 7(2) of the Act contemplates the declaration of exemption of any sale from the right of pre- emption by a notification and if the impugned notification of exemption has additionally prescribed the issue of a certificate by the Deputy Land Commissioner of the District about the vendee being a displaced person, the same will not debar to receive evidence in support or rebuttal of the certificate or to prove the fact of being a displaced person by independent evidence. In support of the view reference is made to PLD 1981 (A J & K) 79 in which it was held that the provisions of the issue of certificate by Commissioner was only made for convenience of the affected-persons as revenue record remains in his control and possession and is in a better position to verify and issue the requisite certificate. However, there was no bar or prohibition to prove the plea by independent evidence. Certificate itself is subject to rebuttal. It is also available to the party to prove the plea by evidence other than the certificate.
8. There is accrued a right to sue to the pre-emptor at the time of the sale in favour of the first vendee. The law prescribes a limitation of one year for a pre-emption suit from the date of sale. As such right to sue i.e. the right of pre-emption is a vested right. A notification of exemption under section 7(2) of the Pre-emption Act encroaches upon the vested right of pre-emption and is to be interpreted strictly and in the manner so as to respect the statutory right of pre-emption.
9. The exemption from the right of pre-emption under section 7 (2) is more akin to the exemption under section 5 of the Pre-emption Act. Both the provisions contemplate the exemption in direct cases of sales and not re-sales to privileged persons who purchase the property under the encumberance of right of pre-emption. A sale subject to the right of pre-emption creates a corresponding vested right in a pre-emptor at the time of sale. The pre-empter may opt to exercise his right of pre-emption at any time within the prescribed period of limitation. His right cannot be defeated by a device of re-sale to a class of persons exempted from the right of pre- emption under section 5 (c) or 7(2) of the Pre-emption Act because the law recognises a device of re-sale only in favour of a person having a right of pre-emption equal or superior to the pre- emptor to the institution of suit under section 17 (1) of the Pre-emption Act. In Mst. Maroof Sultan v.
Abdul Yamin and another 1968 SCMR 874, a transfer by way of gift to the daughter by the vendee for the purposes of construction of a house pending the suit was not recognised by the Supreme Court as a legal device to defeat the right of pre-emption and the exemption claimed under section 5(c) of the Pre-emption Act was not accordingly allowed. In lnayatullah Khan v.
Muhammad Khan and another PLD 1983 Pesh. 129 transfer of land before the institution of pre- emption suit by original vendee to the subsequent vendee for construction of house was also not accepted as a legal device to defeat the right of pre-emption. It was held that the law was to recognise only the device of transfer by vendee to a person with equal or superior right of pre- emption to the plaintiff before the institution of the suit as provided under section 17(1) of the Act. It thus comes to that the exemption from the right of pre-emption under section 7(2) of the Pre- emption Act is available in case of a direct sale and that a vested right of pre-emption cannot be defeated by the device of a transfer by way of gift, sale, exchange or otherwise by the first vendee to a person claiming exemption from the right of pre-emption under section 5(c) or section 7(2) of the Pre-emption Act.
10. The result is that the civil revisions are accepted and the judgments and decrees of the Courts below are set aside. In Suit No. 416/1 of 1976 the plaintiff-petitioner is granted a decree with respect to half of Khasra No. 4 on payment of Rs.570.50 within one month, if not already deposited, otherwise the suit, appeal and revision shall stand dismissed with costs. In suit No. 12/1 of 1977, the plaintiff-petitioner is granted a decree in respect of half of Khasra No. 4 on payment of Rs.855.75 within one month, if not already deposited, otherwise the suit, appeal and revision shall stand dismissed with costs. Pre-emptor's suits regarding Khasra No. 455/5 are, however, dismissed.
Parties are left to bear their own costs.