MIAN BURHANUDDIN KHAN, J.-- By order, dated 17-11-1982 leave was granted by this Court to consider inter alia that the transaction in question was hit by the provisions of paragraph 24(4) of Martial Law Regulation 115 and did not result in the respondent No. l becoming a co-sharer in the estate; that the Land Reforms (Amendment) Act, 1976 whereby exchange of a part of less than subsistence holding was allowed, did not confer the validity on such transactions retrospectively.
2. Relevant facts are that Mst. Akbar Jahan Begum owned land measuring 909 Kanals while Gul Muhammad respondent herein owned land measuring 32 Kanals in the area of village Gandi Khel, Tehsil Lakki, District Bannu. Per Mutation No.14201 attested on 23-8-1973 Gul Muhammad respondent acquired in exchange from Mst. Akbar Jahan Begum 10 Kanals and 11 Marlas. Later on per Mutation Nos. 14203 and 14235 attested on 24-9-1973 Gul Muhammad, respondent, purchased the remaining land from the same lady and she thus transferred her entire land through sale and exchange in favour of respondent Gul Muhammad. Haji Mir Qalam appellant filed a pre-emption suit alleging that Mst. Akbar Jahan Begum in favour of Gul Muhammad sold the entire suit lands but in order to defeat his right of pre-emption the above-mentioned exchange Mutation No. 14201 was given the colour of exchange. In the alternative, the stand taken by him was that even if the exchange mutation is not held as sale mutation, it will not be a valid mutation being violative of the provisions of the Martial Law Regulation No.115 as the respondent owned land which was given in exchange to Mst. Akbar Jahan Begum less than the subsisting holding.
3. On the pleading of the parties the learned Civil Judge framed as many as 9 issues, of which issues Nos.3,4 and 5 were not pressed by the contesting respondent, and the same were accordingly decided against him by the learned trial Court. The suit was held to be within the. It was also held under issue No.7 that the appellant was owner of land contiguous to the suit land and had a preferential right of pre-emption. However, finding on issue No. 8-- "whether the transaction effected vide exchange Mutation No. 14201 attested on 23-8-1974 is in fact a sale, and hence pre-emptiable?" was given in favour of the respondent whereas it was held under issue No. 9-- "whether the transaction effected vide exchange Mutation No. 14201 attested on 23-6-1974 is against the Martial Law Regulation No. 115 and, therefore. Illegal and not effective on the rights of the plaintiff?" that the respondent No. l being owner of area less than subsisting holding, had alienated part of the said holding. Hence, this transaction was squarely hit by the relevant paragraph of M.L.R-115, and, therefore, it was void and of no legal effect. Reliance in this respect was placed by the learned Court on the Division Bench judgment in Abdul Majid Khan v. Shahzada Arif Jah PLD 1970 Pesh. 37.
4. Respondent No.1 challenged the aforesaid judgment and decree by way of an appeal before the learned Additional District Judge, Bannu who accepted the appeal per order, dated 27-11-1977. The learned appellate Court was of the view that the petitioner had no locus standi to question the validity of the transaction covered by Mutation No.14201 and since vendee-respondent had improved his position by becoming a co-sharer in consequence of the said transaction, he had acquired a right superior to that of the plaintiff who was merely coniguous owner. As regards the question that the transaction was in fact sale and not exchange the learned appellate Court reversed the finding of the trial Court on the ground that there was no cogent evidence on record to show that it was anything other than exchange and secondly that the appellant had failed to file an appeal or cross-objection against the finding on the said issue. In this view of the matter the suit was dismissed. The appellant then challenged this judgment and decree in revision before the Peshawar High Court and the learned Acting Chief Justice dismissed the revision petition vide the impugned order dated 23-12-1980.
5. Learned counsel for the appellant urged that respondent No.1 owned land to the extent of 32 Kanals only which was less than "subsisting holding. "Admittedly a part of this holding was alienated by him in favour of respondent No.2 vide Mutation No.14201 attested on 23-8-1973 against the provisions of paragraph 24 (4) of M.L.R.-115. The said paragraph as it then stood, read as follows: "Restriction on alienation of holding:
(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 his 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, deh or mauza.
Sub-pare (5) of para 24 says that "Any alienation made in contravention of this paragraph shall be void."
Learned counsel contended that it is, therefore. Obvious that this transaction was void in its inception. It is wholly wrong to say that validity on such transaction was conferred by statute (retrospectively). Land Reforms (Amendment) Act, 1976 (Act XLVIII) allowed exchange of part of less than subsistence bolding with effect from the date it was enforced i.e. 19-7-1976 and not to transactions made earlier, that it is settled law that a void at is a nullity and does not exist in law in the circumstances the learned High Court and the appellate Court seem to have seriously erred in holding that such transactions were "given statutory recognition" or that since the appeal was pending which is continuation of the suit and law had been amended, therefore, the transaction in question had also become valid.
6. Learned counsel also argued that it is permissible to a party to support the judgment and decree of a lower Court even on the issue decided against him and for this purpose it is not necessary for him to file any cross-objection. Reliance had been placed on Mhand v. Mst. Amtul Hafeez PLD 1954 Lah. 278; Qutbuddin v. Muhammad Siddique and othrs PLD 1969 Lah. 416, Management of Iteboolie Tea Estate v. Its Workmen AIR 1960 SC 1349 and Mst. Jamila Begum v. Awamun Nass and others PLD 1976 Lah. 1376.
7. The appellant also challenged the finding on the question of the transaction being a sale stating that there exists sufficient evidence on the record proving that the impugned transaction brought about by Mutation No.14202 attested on 23-8-1973 was in fact sale and was disguised as exchange only to defeat appellant's right of pre-emption. This evidence has been completely ignored by the learned Courts below.
8. Last point which the learned counsel urged before us 'was that there was arbitration proceedings between the parties which have been completely ignored by the Courts below in view of the award given by the arbitrator. Hence, the order dated 27-11-1977 is wholly misconceived and illegal.
9. We have carefully examined the arguments of the learned counsel, We would like to refer to 1968 SCMR 971 wherein it was held.
"The right of pre-emption is a mere right of substitution for one of the parties to the transaction on the assumption that the transaction is a valid one: In such a case, there can be no question raised as to the validity of the transaction. The learned trial Judge, therefore, fell into error when he suo motu raised an issue about the validity of the exchange in question. His finding that the transaction was one of exchanges and not of sale, was enough to non-suit the appellant. -With that finding the Court of first appeal as well as the High Court appeared to have concurred. It thus follows that the appellant's suit was liable to dismissal; whatever may be the legal position of the impugned exchange. In the circumstances we consider it unnecessary and redundant to express any opinion as to validity or otherwise of the exchange transaction involved in this case. The appellant has no locus standi in this respect and we, therefore, dismiss his appeal though one grounds different to those that prevailed in the High Court."
No evidence on the file had been brought to the satisfaction on the lower Courts that any price has been paid as sale consideration for the transaction effected through Mutation No.14201. This issue was decided against the appellant and the exchange had not been declared by the lower Courts as sale transaction under section 4 of the N.-W.F.P. Pre-emption Act. The appellant filed no appeal or cross-objection against the findings and as such the observation made in PLD 1973 SC 295, would b2 fully applicable to the present case as the adverse findings of the lower Court against him had not been challenged in cross-objection before the first appellate Court. It has also been rightly been observed by the learned Courts below that there was no evidence whatsoever to challenge the finding that the transaction in question was a sale. Therefore, this argument also fails.
10. As regards the arbitration proceedings, the findings of the learned Courts below are very elaborate and it has been discussed by the appellate Court that the matter was referred to arbitrators and that the appellant had made an application on 25-9-1977 wherein he had stated that the appeal stood abated, because after the decree of the lower Court the matter was referred to Arbitrators and they have given Award in favour of respondent No.1 (the appellant). There was no agreement between the parties to refer the dispute to the arbitrators. Relevant finding is as follows: "I have carefully perused the file. None of the parties have made such application for reference for arbitration. Over and above Akbar Jahan Begum who is also party to the suit was not a concerting party to any such agreement. Until all the parties agree in writing, there will be no order of reference in a pending case. The appeal is the continuation of original proceedings and alleged agreement and Award are both effected without permission of the Court and as such the entire proceedings is against the provisions of the Arbitration Act. The alleged agreement does not bear the proper stamp as required under the Stamp Law and cannot be received in evidence. The alleged award is also on a bare paper which requires stamps and registration under section 17 of the Registration Act as it related to the landed property worth more than Rs.100 Award, by itself neither creates nor extinguishes the rights unless it is Aide a rule of the Court, and is followed by the. Court's decree.- Award, if made outside the Court must be presented to the Court within the specified period of 90 days under Article 178 of the Limitation Act."
Having considered all the points raised by the learned counsel, we find none has any substance and consequently we dismissed the appeal with costs.