1. ' Land measuring 2 Kanals comprised in Field No. 1835 situated in Revenue Estate Talwandi Rahwali, Tehsil Gujranwala was sold by its owner Mst. Zubeda Begum, to Muhammad Sharif, vendee for an ostensible sum of Rs. 23,000 vide Registered Sale-deed dated 22-3-1979. Muhammad Jamil son of Mehraj Din claiming superior right of pre-emption on the ground of being a tenant in occupation of the land sold, instituted a suit to pre-empt the sale above-noted in the Court of Assistant Commissioner, Gujranwala. Vendee resisted the suit. In his written statement, it was stated that the land in dispute was situated within Cantonment Limits of Gujranwala and as such was not pre- emptible. It was also stated that the suit was barred on account of estoppel by words and conduct of the plaintiff-pre-emptor. Tenancy asserted in the plaint was denied. Pleadings of the parties gave rise to the following issues:-[URDU TEXT] [URDU TEXT] ' After settlement of issues, parties were asked to produce evidence. Muhammad Jamil, plaintiff/pre-emptor appeared in support of his case and produced copy of Khasra Girdawari Exh.P.1, Exh.P.3 and copy of the Registered Sale-Deed Exh. P.2. Thereafter, Muhammad Sharif defendant appeared as his own witness. He also produced Certificate from the Executive Officer, Gujranwaja Cantt. Exh.D.1. Copy of Jamabandi D. 2, and a decision in ROR No. 377/79-80 marked A, by the Member, Board of Revenue in his support. After examining the evidence and hearing parties, learned Collector, vide judgment and decree, dated 27-10-1981 decreed the suit, subject to payment of Rs. 23,000 to be deposited within a period of 15 days. Right of pre-emption was found to exist in favour of Muhammad Jamil. As regards the price, it was found that Rs.23,000 the sale price, was genuinely fixed and paid to the vendor. On the basis of Certificate Exh.D.1 issued by the Cantonment Executive Officer and copy of Register Haqdaran Zamin, Exh.D.2. Collector found that the land in dispute was situated within the limits of Gujranwala Cantonment, but then he came to the conclusion that the land was not being utilized by Army Authorities for defence purposes.
2. Relying on section 286 of the Cantonment Act, 1924, Collector arrived at the conclusion that the land though situated within the limits of Cantonment had not become Cantonment for the purposes of provisions of section 8 of the Punjab Pre-emption Act, 1913. Suit was decreed as stated above. Vendee preferred an appeal before the Additional Commissioner, Gujranwala Division, Gujranwala. Vide order, dated 16-11-1982, learned Additional Commissioner accepted the appeal and dismissed the suit. He found that since the land subject-matter of the pre-emption suit was situated within the Cantonment limits, no right of pre-emption existed. Reasoning employed in support of this conclusion is found in pars. 6 of the judgment which reads:- "6. The learned counsel for the appellant has tendered in evidence copy of order passed by learned Member (Revenue), Board of Revenue, Punjab in ROR No. 377 of 1979-80 in case 'Abdul Karim etc. v.
3. Mahla Khan' decided on 24-7-1981 in which it was held that the intention of paragraph 25(3)(d) appears to add another class of pre-emptors in the list of pre-emptors mentioned in section 15 of the Pre-emption Act and to give them first right to pre-empt. It has further been held that only to this extent the provisions of paragraph 25(3)(d) supersede the provisions of Pre-emption Act and it does not supersede or change the provision of other sections of Pre-emption Act. The relevant provision as contained in para. No. 6 of the said order are reproduced as under:- "As has been mentioned earlier in the earlier para. the intention of para. 25(3)(d) appears to be to add another class of pre emptors in the list of pre-emptors mentioned in section 15 of the Pre- emption Act and to give them the first right to pre-empt. Only to this extent the provisions of para. 25(3)(d) supersede the provisions of the Pre-emption Act. It does not supersede or change the provisions of other sections of the Pre-emption Act.
4. ' It is also to be noted that para. 25(3)(d) does not create any new right for pre-emption, only in new class of pre-emptors. A careful reading of these provisions, a tenant shall have the first right of pre-emption, clearly indicates that the tenant will have first right when this right of pre-emption is available. When this right is not available the tenant cannot ipso facto claim this right. Similarly powers given to Government and Board of Revenue in section 8 of the Pre-emption Act have not been affected by para. 25(3)(d). Therefore, notwithstanding any opinion previously expressed by this Court the proper law seems to be that the provisions of section 8 of the Pre-emption Act are not affected by the provisions of para. 25(3)(d)."
5. ' The findings as regards the superior right was not specifically reversed. Dismissal of the suit was assailed in ROR 108/83-84, before the learned Member, Board of Revenue, Punjab, Lahore. Revision was dismissed vide order dated 12-6-1984. Learned Member found:- "I have heard the learned counsel for the parties. It is conceded by the learned counsel for the petitioner that the Cantonment Areas are excluded from the operation of the Pre-emption Act by the Punjab Government under section 8 of the Punjab Pre emption Act. It is, however, contended that notification issued under section 8 of the Pre-emption Act cannot affect the Pre-emption rights vested by M.L.R 115. I cannot agree with this view point. M.L.R 115 has merely the effect of creating additional rights of pre-emption for the tenants. It does not in any way supersede the provisions of Pre-emption Act. I would therefore, uphold the findings of the Additional Commissioner and reject this revision."
6. ' A close reading of the judgments dated 16-11-1982 and 12-6-1983 passed by Additional Commissioner and Member, Board of Revenue show that the suit has been dismissed principally on the ground that the land was situated within the Cantonment limits of Gujranwala and as such was not pre-emptible under section 8 of the Punjab Pre-emption Act, 1913. Rest of the findings recorded by learned Assistant Commissioner have not been touched. Two orders passed by the learned Additional Commissioner and learned Member, Board of Revenue negativing the claim of the petitioner to pre-empt the land on the ground that it was situated within the Cantonment limits have been assailed in Constitutional jurisdiction.
7. ' I have heard learned counsel for the parties and examined the trial Court's record. Learned counsel for the plaintiff/petitioner has contended that there was no evidence in support of the plea raised in the written statement that the suit land was situated within Cantonment limits and as such was not pre-emptible. Heavy onus lay upon the defendant/vendee to prove by convincing evidence that such was the situation. Evidence adduced was hardly sufficient to return a finding in favour of the vendee. Certificate D.1 issued by one Ejaz-ul-Qureshi Cantonment Executive Officer, Gujranwala alongwith copy of the Register Haqdaran Zamin containing a note of village Patwari that land was situated within the Cantonment limits was the only evidence adduced in support of Issue No.
1. Gazette Notification or plan showing the limits of Cantonment have not been produced in evidence by defendant-vendee. Best evidence, has, therefore been withheld.
8. ' Learned counsel for the respondent/vendee, however contended that Certificate was issued by a competent Officer and was per se sufficient to prove that the land was within the limits of Cantonment. Document Exh.D.1 was brought on record without any objection from the opponent.
9. Consequently, full effect should be given to its contents. It was also pointed out that copy of Jamabandi relating to suit land contained a note thereon in the hand of village Patwari, that the land was situated within the Cantonmtent limits. Legal effects of these two documents were not tried to be rebutted by the plaintiff-pre-emptor. He also pointed out that the land being in Cantonment was exempted from the operation of the provisions of the Pre-emption Act.
10. ' I have thoroughly examined the evidence adduced by parties. Collector had found right of pre- emption in favour of the petitioner. It was further found that sum of Rs.23,000 was the sale price of the land sold. The pivotal question arising for consideration in the case under consideration is whether the land sold by Mst. Zaitoon Begum to Muhammad Sharif was situated within Cantonment limits and as such was not pre-emptible. The fact of inclusion of the suit land within Cantonment limits was specifically denied by the plaintiff-pre-emptor.
11. Notification showing the limits of the Cantonment or inclusion of the land-in-dispute, within the Cantonment limits of Gujranwala has not been produced. Site plan of the Cantonment limits has also not been produced. Certificate Exh.D.1 in fact was no evidence to prove that the land was situated within Cantonment limits. Author of the Document Exh.D.1 was not produced by the defendant in Court to prove the correctness of the contents of the Certificate. Similarly a note in the A hand of village Patwari on the copy of the Jamabandi was hardly a piece of evidence on which finding could be given in favour of the vendee. Best evidence was the notification showing the inclusion of the area in dispute within Cantonment limits and the plan of the Cantonment Board.
12. The dispute could have also been resolved through appointment of local Commissioner who could with the help of Notification and plan find out whether the land in dispute was situated within the Cantonment Limits of Gujranwala. Finding on issue No. 1 was, therefore, based on no evidence and cannot be maintained. Preferential right of pre-emption was conferred on tenants vide para 25(3)
(d) of the Land Reforms Regulation No. 115 of 1972. This paragraph grants a preferential pre- emptive status to "tenants" with regard to land comprised in their tenancy. Pre-emptibility or otherwise of the transaction was still regulated by the provisions of Punjab Pre-emption Act, 1913.
13. Supreme Court of Pakistan in Muhammad Khan v. Abdul Khaliq Khan PLD 1981 SC 155 observed:- "14. A careful perusal of the provisions reproduced above in detail will show that:
(i) The Punjab Pre-emption Act defines what is right of pre-emption (See section 4);
(ii) It specifies the transactions with regard to which such a right can be exercised (namely sale as distinct from exchange and also excluding such of the transactions as are mentioned in the definition of sale in section 2 reproduced above;
(iii) It particularizes the property in respect of which the right would exist namely agricultural land and village immovable property (section 6) with power of Provincial Government to exempt any property under section 8(2) and clarifies that there shall be no right of pre-emption with regard to agricultural land within any Cantonment except when so clarified by the Provincial Government; and
(iv) It also stated the order of preference in which the persons made eligible to pre-empt can exercise this right in that respect. This will show that this is a statutory right created by law.
14. ' Section 21 provides that any person entitled to a right of pre-emption may, when the sale or foreclosure has been completed, bring a suit to enforce that right. The phraseology of section 21 is very significant. The prefix of word "any" before "person entitled to a right of pre-emption", above that entitlement need not flow necessarily from Punjab Pre-emption Act but may emanate from any other law for the time being in force as well. No doubt, whenever any special law makes any changes in respect of any particular matter, that law may prevail in respect of that matter but the basic position will remain that the law granting right of pre-emption sales of agricultural land in Punjab, is the Punjab Pre-emption Act, I of 1913. In this way if we examine para. 25(3)(d) of the Land Reforms Regulation 115 of 1972, we notice that by itself it does not define what is a right of pre- emption, it does not state regarding which transactions it can be enforced, and about which transactions-it cannot be enforced. It does not state for instance when there are joint tenants in a particular area of land, how the right is to be regularised and enforced; it does not state as to what is the procedure for the determination and enforcement of that right namely whether a deposit or security for Zari-Panjum is to be asked for from a plaintiff or not and what would be the procedure for fixing the price whether the Court would have the power to determine the market price in place of price pleaded by the parties and if so, how and on which basis and in what manner. Similarly, it does not deal with various other subject-matters contained in the Punjab Pre-emption Act. All this will show that para 25(3)(d) of Land Reforms Regulations 115 of 1972 cannot be said to be a law which regulates or provides any procedure to enforce a right of pre-emption. It simply grants a preferential pre-emptor status to "tenants" with regard to land comprised in their tenancy. In the Punjab Pre-emption Act, occupancy tenants were entitled to pre-empt but now all that para (25)
15. (3)(d) had done is that besides granting this right to all types of tenants; it gives them the first right placing the other classes entitled to pre-empt below and next to them, the words "first right" show that they are to be read into (for example) section 15 of the Punjab Pre-emption Act for the purpose of their enforcement, because otherwise the concept of the phrase "first right" would neither be clear nor first anywhere by itself just in the abstract. In this manner, these words have impliedly become a part of section 15, and as such a suit by a tenant to enforce his "first right" of pre- emption can rightly be called a "suit to enforce a right of pre-emption under the provisions of this Act namely Punjab Pre-emption Act, to which section 30 can safely be applied. Even otherwise emphasis in section 30 is on institution and filing of suits under this Act and not merely to preference which flow under this Act because as already clarified above preference may flow from any other law for the time being in force, but so long as the basic right of pre-emption itself originates from this Act, all suits in that respect shall be suits "to enforce right of pre-emption under this Act" and will be regulated by the relevant period of limitation prescribed therein with reference to the relevant facts of each case. Looked at from whetever angle, the position, it will thus be clear remains the same.
15. The real import of para. 25(3)(d) is that:-- "(i) In the areas where,
(ii) The agricultural land, and
(iii) Transactions thereof, about which a right of pre-emption is otherwise basically available there and about that land and transaction, a tenant shall have the first right of pre-emption with regard to the land constituted in his tenancy. The question therefore, whether the territory, the agricultural land, and the transaction involved in a given case such wherein or about which a right of pre- emption exists or not, so far as relevant for the present case, is to be determined first under the Punjab Pre-emption Act I of 1913 because para. 25(3)(d) does not purport to itself determine these matters. In this way it is thus clear that when a suit is filed by a tenant claiming a first right of pre- emption he is really enforcing a right of pre-emption basically granted by and under the Punjab Pre-emption Act in general in the locality, about the land, and regarding the transaction involved though preference is being bestowed on him by para. 25(3)(d) of Martial Law Regulation 115 of 1972.
16. Such a suit from that point of view can be considered as a suit "to enforce a right of pre-emption under the provisions of this Act", namely Punjab Pre-emption Act, which grants that right in general whereas the aforesaid para., only regulates the preference of persons concerned."
17. ' Finding on issue No. 1 whether the suit land was situated within Cantonment limits, therefore, was based on no evidence. Writ Petition is allowed. Judgment dated 16-11-1982 passed by learned Additional Commissioner affirmed in revision by the learned Member Board of Revenue on 12-6- 1984 is set aside and declared to have been passed without lawful authority. Suit is remanded to the Assistant Commissioner Saddar Sub-Division, Gujranwala for recording a fresh finding on issue No. 1 after affording an opportunity of leading fresh evidence if so desired by the parties. Rest of the findings are maintained. Parties to bear their own costs.