' This second appeal is directed against the judgment and decree dated 15-1-1968, passed by learned district Judge, Jhelum, decreeing the suit of Fazal Karim plaintiff for possession by pre- emption of land measuring 16 Kanals 5 Marlas in Khata Nos.2/10, 2/20 and 7/57 bearing Khasras Nos.295, 296 and 319 in Village Pindori, Tehsil and District Jhelum. The suit of Fazal Karim had earlier been dismissed by learned Senior Civil Judge, Jhelum vide judgment and decree dated 8-9-1966.
2. The facts necessary for decision of this appeal are as follows:- Asif Beg and ljaz Beg sons of Azam Beg sold 7 Kanals 15 Marlas of land for Rs.3,500 vide Mutation No. 214, dated 17-4-1964 (Exh. P.4); Mst. Zareena daughter of Azam Beg sold land measuring 4 Kanals 5 Marlas for Rs.1,900 vide Mutation No.215, dated 17-4-1964 (Exh.P.2) and Mst. Sakeena Begum widow of Azam Beg sold land measuring 4 Kanals 5 Marlas for Rs.1,900 vide Mutation No.216, dated 17-4- 1964 (Exh. P.3), in favour of Qurban, Zaman and Rehmat sons of Nawab Khan. Fazal Karim plaintiff on 16-4-1965, filed one suit to pre-empt the three sales mentioned above against Qurban etc. vendees on the basis of being a collateral of vendors and Khewatdar of the land in suit. He pleaded that the sale was in fact for Rs.4,550 but had wrongly been stated to be Rs.7,300 in the three mutations. Qurban, Zaman and Rehmat defendants put in appearance to defend the suit. It was pleaded by them that they were the persons affected by the construc tion of Mangla Dam and as such, the sale in question was protected by the Board of Revenue Notification dated 15-9-1965; that the plaintiff was estopped by his words and conduct from filing the present suit. It was further pleaded by them that the plaintiff did not have a superior right of pre-emption and that the sale price of Rs.7,300 was fixed in good faith and actually paid by them. On the basis of the pleadings of the parties, the learned Senior Civil Judge framed the following issues:-
(1) Whether the sales are not pre-emptible?
(2) Whether the suit is bad for misjoinder of causes of action?
(3) Whether the value of the cause for the purpose of court-fee is incorrect? If so, what is the correct value?
(4) Whether the plaintiff is estopped from bringing the suit by his word or deed?
(5) Whether the suit is barred by the provisions of Martial Law Regulation No.64?
(6) Whether the plaintiff has got the right to pre-empt the sale?
(7) Whether a sum of Rs.7,300 was fixed in good faith or paid as the sale price of the land in dispute in all the three transactions?
(8) If issue No.7 is not proved, what was the market value at the time of the sale?
(9) Relief.
' Under issue No.1, it was held by the learned trial Judge that the defendants-vendees were the persons affected by the construction of Mangla Dam and as such, the sale in question was protected by Notification dated 15-9-1965 issued by the Board of Revenue. This issue was decided in favour of the defendants while issue No.2 was decided in favour of the plaintiff and it was held that the suit was not bad for misjoinder of causes of action. Issue No.3 was decided against the defendants and it was held that the suit had been correctly valued for the purposes of court-fee and jurisdiction. Under issue No.4 it was held that the plaintiff had waived his right of pre-emption and was estopped by his words and conduct to file the present suit. This issue was decided against the plaintiff. The learned trial Judge decided issue No. 5 against the defendants by holding that the suit was not barred by Martial Law Regulation No.
64. The superior right of the plaintiff was held to have been established as against the defendants and as such, issue No.6 was decided in favour of the plaintiff. The learned trial Judge under issues Nos.7 and 8 came to the conclusion that the defendants had failed to prove that the amount of Rs.7,300 was fixed in good faith or actually paid and as such, assessed the market value of the suit land at Rs.4,589. As a result of the findings under issues Nos. 1 and 4, the suit of the plaintiff was dismissed leaving the parties to bear their own costs. The plaintiff Fazal Karim filed appeal against the judgment and decree of learned Senior Civil Judge before the District Judge, Jhelum, who reversed the findings of the trial Court under issues Nos.1 and 4 and decreed the suit of the plaintiff on payment of Rs.4,589 with no order as to costs vide impugned judgment and decree dated 15-1- 1968. Hence this appeal.
' The learned District Judge under issue No.1 held, that "unless the terms of notification or the statute are absolutely plain and clear in conferring retrospective effect, the new statute or notification is not to be considered to have any such effect." It was further held by him "that pre- emption is a right of substitution which vests in the pre-emptor at the time of sale and unless the new statute or notification fettered this right to be preserved upto the date of decree, no such abolition of the right could be held implicit in the notification under consideration. This notification abolished the rights of pre-emption in respect of the sales in favour of the persons affected by the construction of Mangla Dam for a period of three years with effect from the date of notification." In view of this finding, issue No.1 was decided in favour of the plaintiff and against the defendants.
Under issue No.4, the learned District Judge came to the conclusion that the plaintiff had not waived his right of pre-emption and that the defendants' evidence was interested. This issue was also decided in favour of the plaintiff.
3. Fazal Karim plaintiff died during the pendency of this appeal. Mst. Said Bibi etc. respondents were impleaded as his legal representatives.
4. The learned counsel for the appellants in support of this appeal contended that the defendants were persons affected by the construction of Mangla Dam and as such, the sale in their favour was protected by the Notification, dated 15-9-1965; that the finding of the learned District Judge that the Notification dated 15-9-1965 did not have a retrospective effect is not correct and legal and that the finding under issue No.4 by the learned District Judge that the plaintiff had not waived his right of pre-emption is based upon misreading of evidence. In support of his contentions, the learned counsel placed reliance on Mst. Bibi Jan and others v. Miss R.A. Monny and another PLD 1961 SC 69; Bishen Singh v. Ganda Singh 1913 P L R 12 (Case No.5); Asmat v. Modern Estates Ltd. 1983 CLC 2601; Aftab Ahmed v. Rehmat All 1980 CLC 999; Naseer Ahnd v. Arshad Ahmad PLD 1984 SC 403; Rehmat Khan v. Muhammad Rafiq 1984 CLC 371 and Manghta Khan v. Mst. Hamida Begum and others PLD 1981 SC 51.
' The learned counsel for the respondents controverted the contentions on behalf of the appellants.
It was argued by the learned counsel for the respondents that the defendants were not certified to " be the displaced persons on account of the construction of Mangla Dam and as such, the sales in their favour were not protected by the Notification dated 15-9-1965. It was further argued by him that the defendants owned property in village Bhondana Ghakhran, Tehsil and District Jhelum and for that reason also they were not entitled to the protection under the said Notification. It was argued by him that there was no evidence that the plaintiff waived his right of pre-emption. He placed reliance on Ghulam Rubani and others v. Maqbool Khan and others PLD 1971 Azad J & K 68 and Karam Ali and others v. Raja and others PLD 1955 FC 35.
5. I have considered the contentions of both the parties and have also gone through the record of this case minutely. The arguments were addressed only on issues Nos.1 and 4. I will take up both these issues one by one.
ISSUE No.l.
6. In order to properly appreciate the facts and the legal position for the purposes of the decision of this issue, it is proper to examine the Notification dated 15-9-1965 which was tendered in evidence as Exh.D.4. It is reproduced below:- "GOVERNMENT OF. WEST PAKISTAN BOARD OF REVENUE NOTIFICATION No.5668-65/3306-LROV.--In exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre-emption Act, 1913, (Punjab Act I of 1913), the Board of Revenue, West Pakistan, is pleased to declare that for three years from the date of publication of this notification, no right of pre- emption shall exist with respect to the sale of agricultural land not exceeding 50 acres in a canal irrigated area or 100 acres in non-irrigated area and other immovable property not exceeding the market value of Rs.10,000 (rupees ten thousand only), IN FAVOUR OF A PERSON DISPLACED from the Azad Kashmir WHO IS AFFECTED by the construction of Mangla Dam and CERTIFIED TO BE SO AFFECTED by the Commissioner, Mangle Dam Affairs, Azad Government of the State of Jammu and Kashmir., I. U. KHAN, Member (Revenue), Board of Revenue, West Pakistan."
' This Notification was further extended by another Notification dated 8-4-1969 which is as follows:- "PART III -- THE GAZETTE OF WEST PAKISTAN, APRIL 18, 1969 BOARD OF REVENUE, WEST PAKISTAN.
The 8th April, 1969.
' No. 40-45-68/1031-LR-IV,--In exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre-emption Act, 1913, the Board of Revenue, West Pakistan is pleased to declare that for a further period of three years from the date of expiry of the Board of Revenue Notification No.5668- 65/3466-LR-V. dated the 15th September 1965, no right of pre-emption shall exist with respect to the sale of agricultural land not exceeding 50 acres in a canal irrigated area or 100 acres in non- irrigated area and other immovable property not exceeding the market value of Rs.10,000 (rupees ten thousand only), IN FAVOUR OF A PERSON DISPLACED from the Azad Kashmir in consequence of the construction of Mangla Dam and CERTIFIED TO BE SO DISPLACED by the Commissioner, Mangla Dam Affairs, Azad Government of the State of Jammu and Kashmir.
' Nothing in this notification shall be deemed to affect decrees obtained by pre-emptions prior to the date of its issue.
(Sd.)
HASAN TURAB ALI, Member (Revenue) Board of Revenue, West Pakistan."
' The relevant Notification for the purposes of this suit is Exh.D.4, dated 15-9-1965. It was argued by the learned counsel for the appellants that the three defendants were issued Certificates Exh.D.1 to Exh.D.3 in pursuance of the Notification, dated 15-9-1965 in the Pro forma which is reproduced below:- "AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, MANGLA DAM AFFAIRS, MIRPUR.
CERTIFICATE It is certified that Mr. s/o________ resident of Village__ ' Tehsil , District Mirpur (Azad Kashmir) is affected by the construction of Mangla Dam Reservoir and his land is being acquired under the Pakistan Land Acquisition Act for the purpose of Mangla Dam Reservoir. He wants to purchase land in any of the Districts of former Punjab (West Pakistan) to which he is entitled vide Board of Revenue, West Pakistan's circular letter No.8295/60/8245-11, dated 14-12-1960 to the address of all the Deputy Commissioners of the former Punjab (West Pakistan).
(Sd.)
Commissioner, Mangla Dam Affairs, Mirpur. (A K ).
No.R-1(14)/1849/1965 Date 15-2-1965."
' It was argued by the learned counsel for the appellants that the Certificates issued by the Commissioner under Notification dated 15-9-1965 in the above Pro forma clearly prove that the defendants were certified to be the persons affected by the construction of Mangla Dam Reservoir and that their land was being acquired under the Pakistan Land Acquisition Act for the purposes of Mangla Dam Reservoir. He referred to notices Exh.D.6, dated 12-8-1964; Exh.D.9, dated 8-8-1964 and Exh.D.10, dated 8-8-1964, all under section 9(3) of the Land Acquisition Act to the defendants- vendees from the. Collector Land Acquisition to support his contention that their land was acquired for the purposes of the construction of Mangla Dam and, therefore, they were the displaced persons. It was further contended by the learned counsel that the Commissioner under Notification dated 15-9-1965 was not required to certify that the defendants-vendees were displaced persons in consequence of the construction of Mangla Dam. This Notification, according to the learned counsel, only required a certificate that the persons so affected were the persons affected by the construction of r1angla Dam. As such, it was argued that even if the word "displaced" has not been used in the Certificates, then also the said Certificates were sufficient to give protection to the sales in question in favour of the defendants. The learned counsel referred to the amended Notification to argue that in the first Notification dated 15-9-1965, the word "displaced" was not used by the Board of Revenue whereas in the second Notification dated 8-4-1969, the word "displaced" was used as requirement of the Certificate. The precise argument of the learned counsel was that the intention of the Board of Revenue is clear from the difference of wordings in both the Notifications.
According to the first Notification, it was not necessary that the Commissioner should certify that a particular person was a displaced person and the only requirement was to certify that the individual was the person affected by the construction of Mangla Dam. I am not prepared to accept this contention of the learned counsel for the appellants. A perusal of the two Notifications clearly indicates that the protection was given to a displaced person who was affected by the construction of Mangla Dam. The word "displaced" has been used in the Notification dated 15-9- 1965 as well as in the subsequent Notification dated 8-4-1969. The Commissioner was required to give certificate under Notification dated 15-9-1965 to a displaced person from Azad Jammu and Kashmir who was so affected by the construction of Mangla Dam. The wordings of this Notification admit of no ambiguity. The three Certificates Exh. D.1 to Exh.D.3 issued in favour of the three defendants only state that the defendants-vendees were the persons affected by the construction of Mangla Dam. These Certificates do not certify them to be the displaced persons. As such, the defendants could not claim protection to the sales in their favour under Notification dated 15-9- 1965. In support of this view, I place reliance on Rehmat Khan v. Muhammad Rafique 1984 CLC 371.
It was held in this judgment that advantage of notification of exemption is available only if it is certified by the Commissioner that the person has been displaced by the construction of Mangla Dam. It was further held by the learned Judges of the Division Bench that the word "affected" is of a much larger import than the word "displaced" in so far as acquisition proceedings are concerned, for every person whose land has been acquired is an affected person but need not necessarily be displaced as a result thereof. In the instant case, the only Certificate issued by the Commissioner is that the defendants were the persons affected. He did not certify them to be the persons displaced by construction of the Mangla Dam. This certificate was necessary before any protection could be claimed by the defendants under the Notification dated 15-9-1965. This view is supported by Manghta Khan v. Mst. Hamida Begum and others PLD 1981 SC 51. It was held by their Lordships of the Supreme Court that "the issuance of certificate was one of essential conditions for obtaining the exemption". I am, therefore, of the view that the Certificates Exh. D.1 to Exh. D.3 did not certify the defendants-vendees to be the displaced persons and as such, they are not entitled to claim exemption under the Notitfica tion dated 15-9-1965.
It may here further be noted that the plaintiff placed on record copy of Jamabandi for the year 1937-38 Exh. P.7 and a copy of Jamabandi for the year 1962-63 Exh. P.8 to prove that the defendants-vendees Qurban and others were already owners of land in village Bhondana Ghakhran, Tehsil and District Jhelum. There is no rebuttal to this evidence by the defendants- vendees. Abdur Rehman D.W.5 was put a question in cross-examination as to whether the defendants were owners of land in this village or not. He denied the suggestion. In any case, it is proved by the Jamabandis Exh. P.7 and Exh. P.8 that the defendants were owners of land in Tehsil and District Jhelum at the time of construction of Mangla Dam. This means that they were already settled elsewhere as well and therefore, could not be considered as the persons affected or displaced on account of the construction of Mangla Dam. It may be added that the defendants were living in United Kingdom. They purchased the suit land through special attorney and even defended this suit through him. In view of this as well, they were not entitled to any protection under the Notification dated 15-9-1965.
It is correct that the reasoning of the learned District Judge to upset the findings of the learned trial Judge under issue No.1 was not correct. I am not prepared to agree with the learned District Judge that the Notification did not have a retrospective effect. This view is supported by Mst. Bibi Jan v.
Miss R.A. Monny and others PLD 1961 SC 69. In a suit for pre-emption it is necessary that the plaintiff should have superior right of pre-emption on three occasions; firstly at the time of sale; secondly, at the time of institution of suit; and thirdly at the time of passing of the decree. In view of this, the reasoning advanced by the learned District Judge is not correct though the conclusion arrived at was correct. This view is supported by Bishen Singh v. Ganda Singh, Aftab Ahmad v.
Rehmat Ali and Asmat v. Modern Estates Ltd.
7. As a result of the above discussion, issue No.1 is decided in favour of the plaintiff and against the defendants-appellants.
ISSUE No.5:
8. This issue pertains to the waiver of right of pre-emption by the plaintiff. The defendants in support of this issue led only oral evidence. Muhammad Iqbal D.W.1, Muhammad Azam D.W.2 and Muhammad Raza D.W.4 only stated that Fazal Karim plaintiff was present in the Baithak of Asif Beg vendor at the time of the bargain. These three witnesses did not disclose or state any overt act by words of mouth or any other action to indicate that Fazal Karim plaintiff had waived his right of pre-emption. Kala Khan D.W.3 only stated that Fazal Karim plaintiff himself stated that the house be given to him; that the land may be sold to any one; and that he would not file a suit for pre- emption. Abdur Rehman D.W.5 who is the general attorney of the defendants stated that Fazal Karim plaintiff promised not to file a pre-emption suit and had agreed that the land be purchased by the vendees. I have considered these statements. It is the defendants' case that the bargain was struck in the presence of all the five witnesses examined by the defendants. There is discrepancy between the statements of Muhammad Iqbal D.W. 1, Muhammad Azam D.W.2 and Muhammad Raza D.W.4 on one side while Kala Khan D.W.3 and Abdur Rehman D.W.5 on the other.
According to the three defence witnesses who claimed to be present at the time of bargain, the plaintiff Fazal Karim was just present. No words are stated to have been uttered by Fazal Karim plaintiff at that time. The other two defence witnesses stated that he promised not to file pre- emption suit if the land is purchased by the defendants. The discrepancy on this material point in two sets of witnesses clearly shows that Fazal Karim plaintiff did not waive his right of pre-emption.
Allah Dad is an uncle of the defendants. His son Allah Ditta is married to a maternal-niece of Muhammad Iqbal D.W. Another son of Allah Dad namely Farman is married to a daughter of Muhammad Azam D.W. Mst. Noor Begum mother-in-law of Kala Khan D.W. is a cousin of Allah Dad aforesaid. These three witnesses are, therefore, related to the defendants and are interested to support them. Abdur Rehman D.W.5 is Mukhtar-e-Aam of the defendants. He is nephew of Muhammad Raza D.W.4. They are, therefore, also interested to support the defendants in this case.
For the reasons mentioned above I am not prepared to hold that the plaintiff Fazal Karim was estopped by his words and conduct to bring the present suit against the defendants. The learned counsel for the appellants placed reliance on Naseer Ahmad v. Arstad Ahmad. In my humble opinion, this judgment is in a way against the defendants. There is no evidence to indicate that the procedure laid down in sections 19 and 20 of the Pre-emption Act was followed before the sales in question. A right of pre-emption can be foreclosed even before the sale takes place but in the instant case I have come to the conclusion that there is no evidence that the plaintiff waived or foreclosed his right of pre-emption before the sales in question. This judgment is, therefore, not applicable to the facts and circumstances of the present case.
9. In view of the above, issue No.4 is decided in favour of the plaintiff and against the defendants.
10. For the reasons stated above, this appeal is dismissed leaving the parties to bear their own costs throughout.