1. SAJIAD AHMAD, J.-This judgment will dispose of Civil Appeals Nos. K-34 of 1968, 80 of 1969, 4 of 1970, 171 and 172 of 1970, 191 of 1910, 207 of 1969, 249 to 263 of 1970, 29Q of 1970, 79 of 1971, 81 of 1971, 21- P, 22-P and 23-P of 1970, which, with their varying facts, involve a common question of law as to the maintainability of pre-emption suits in respect of sales by the vendors of their rights and interests !n the evacuee lands held by them as temporary allottees, confirmed allottees or permanent transferees of those lands. The question raised falls into two parts, first, whether on the dates when the respective sales ware made, the vendors possessed saleable or transferable interests in the land sold by them, answering to the description as contained in sections 4 and 6 of the Punjab Pre- emption Act T of 1913, so as to give rise to a cause of action for pre-empting those sales by the persons who, under the Pre-emption Law, were entitled to do so. The second part of the question is that, if the answer to the first part be in the affirmative, whether this right of pre-emption is enforceable in the civil Courts or, is there any ouster, express or implied, of the jurisdiction of the civil Courts to enforce such a right under the provisions of the Evacuee or the Rehabilitation Laws.
2. The Partition of the sub-continent in 1947 which had resulted in a holocaust of carnage and destruction of human lives, brought into West Pakistan teeming millions of refugee3 from Bharat who had to be absorbed in the social and economic life of the newly created State of Pakistan. This colossal exercise bad to be executed by stages at the administrative and legislative levels. In view of the complexity of the problem without any legal framework available to solve it, the duty of making provisions for protection of evacuee property and for providing shelter, food and means of livelihood to the incoming refugees, had to be performed by the Administrative authorities in the very early stages, by resort to expedient measures. At first, refugees were given lands without reference to any claim or right possessed by them on the basis of "First coma first served".
3. Subsequently, this matter was sought to be regulated on a statutory basis by Ordinances promulgated for the protection of evacuee properties and for the rehabilitation of refugee which, of course, formed the nucleus for the very much more elaborate laws that had to be enacted to meet the growing demands of the situation.
4. There have been three principal stages in the disposal of the evacuee properties and the settlement of the refugees, which may appropriately be described as follows:
(1) Temporary allotment.
(2) Quasi-permanent allotment, and
(3) Permanent settlement.
5. The status of the recipients at these different stages can cor--respondingly be described as that of ;
(i) Temporary allottees.
(2) Confirmed allottees.
(3) Permanent transferees or persons who were permanently settled on the erstwhile evacuee property.
6. It would be necessary to examine the quality and characteristics of the rights possessed by the persons concerned at these three different stages in order to determine whether they are the type of properties mentioned in section 4 of the Punjab Pre-emption Act (I of 1913) to be subject to a pre-emptive right exercisable by the pre-emptors in the case of the alienation of those rights.
7. Section 4 of the Punjab Pre-emption Act is as follows t "The right of pre-emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and is arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosures of the right to redeem such property.
8. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale."
9. Section 6 which is also relevant may also be reproduced below: "6. A right of pre-emption shall exist in respect of agricultural land and village immovable property, but every such right shall be subject to all the provisions and limitations in this Act contained."
10. It will be seen that the right of pre-emption under section 4 available in respect of the sale of three kinds of properties, namely, agricultural land, village immovable property and urban Immovable property and it is also available where the sale is of the equity of redemption of such properties.
11. The rights of trio allottees of the first stage who were merely granted temporary allotment, do not entail any problem. The temporary allotment did not at all create any right or interest in the tempo--rary allottees in the lands allotted to them and this temporary allotment, therefore, does not fall in any of the categories of the properties mentioned in section 4 of the Pre-emption Act.
12. Temporary allottees held lands merely as a measure of expediency without reference to any right possessed by them. No right inhered in them to remain on the lands allotted to them temporarily and they were liable to eviction at any time. As they did not possess any right, they had none which they could sell and the question of pre-emption, therefore, is wholly irrelevant as regards the sale of those rights. Similarly the right of pre-emption in regard to sales of lands, by the permanent transferees of the third stage does not present any difficulty. This is the stage when the lands are settled on the allottees with complete rights of ownership within the meaning of the term "settlement" as defined in section 2(8) of the Land Settlement Act of 1958, which is as follows (8). 'Settlement' means conferment on a displaced person of any permanent right in, or title to, any land under this Act, whether such right or title be proprietary, occupancy, tenancy or of any other kind.
13. As the permanent transferees are conferred full ownership right under the Land Settlement Act of 1958, therefore the scale made by them are subject to the right of pre-emption being sales of agricultural land as described in section 4 of the Pre-emption Section 16 of the Land Settlement Act (1958) as it stood) originally reads as follows "16. Every person who is permanently settled on any land under this Act shall, subject to the general laws applicable to the area in which the land is situated, be entitled to hold and enjoy the rights and title conferred on him and to transfer or alienate the same."
14. This section was amended by Ordinance XIII of 1964 and as amended it reads as follows: "Notwithstanding anything contained in any other law for the time being in force, the land on which a displaced person is permanently settled under this Act shall vest absolutely in such person."
15. Both the original and amended section 16 of the Land Settlement Act cited above, came in for consideration by a Full Bench of the Peshawar High Court In the case of Taza Gul and another v.
16. Said Ghulam (PLD 1967 Posh. 157), in which it was held that the change in the language of the section brought about by the amendment made no difference in the meaning as by virtue of the provisions contained therein, full proprietary rights were conferred on the displaced persons In the lands which had been allotted to them, ensuring their entitlement to hold and enjoy the rights conferred on them and to transfer and alienate the same. This permanent settlement was made subject to certain terms and conditions as contained in rule 7 of the Displaced Persons (Land Settlement) Rules, 1959. But these conditions did not at all detract from the attributes of the full ownership of these lands of the person on whom these lands were settled. In Taza Gul's ease clause (v) of this rule 7, was particularly referred to for the argument that it had whittled down rights of ownership of the transferees by providing that if it was subsequently found that the displaced persons concerned had obtained the land by fraud, misrepresentation or in excess of the entitlement, in that event the land so settled shall be liable to be withdrawn. It was rightly pointed out by the learned Judges of the Full Bench that it was wholly redundant to Impose this limitation on the right or title of a displaced person for the short reason that fraud vitiates even the most solemn proceedings of the superior Courts and reopens and nullifies all acts. In the case of Saeed Muhammad and another V. Talib Hussain Shah (1970 SCMR 641) it was held by a Division Bench of this Court that the land permanently settled under section 15(3) of the Displaced Persons (Land Settlement) Act, 1958, was not immune from pre-emption.
17. The learned counsel appearing for the parties in these appeals, accepted with unanimity that the sales of lands by persons who are permanent transferees of those lands under the Settlement Act, do give rise to the right of pre-emption as it amounts to sale of agricultural lands by them of which they have become full-fledged owners. It may also be stated here that under rule 7 of the Displaced Persons (Land Settlement) Rule, 1959. Mechanics are provided for conferment of permanent rights on each person holding an allotment on the basis of the entries in Register R. L. II.
18. After the acquisition of the land under section 4 and the constitution of the compensation pool under section 5, the Assistant Settlement Commissioner of the area concerned has to, except in case of categories of lands specified in proviso to subsection (3) of section 3, cause a mutation of extinction of all evacuee rights and interests in the entire estate to be entered and disposed of and the Central Government has to be substituted for the evacuee-holders of the rights In the estate and thereafter separate mutations have to be entered in favour of the permanent allottees in attestation of the conferment of permanent rights upon them and a detailed attestation order to that effect has to be made showing the name of the permanent transferee, the area conferred upon him, including any mutations of inheritance or transfer that may have been effected concerning the land in question. It is obvious that the object of the setting up of the compensation pool under section 5 of the Land Settlement Act was to bring about the extinction of the evacuee character of the land and to confer the same on the confirmed allottees on the basis of their respective entries In Register R. L. II.
19. The nature of the rights of the confirmed or quasi-permanent allottees of the second Intervening stage and the exercise of the right of pre-emption attaching to the sale of the rights possessed by these allottees has presented some difficulty Involving al judicial conflict of opinion.
20. The nature of these rights was determined by this Court In the case of Syed Abdur Rashid v.
21. Pakistan (PLD 1962 SC 42), and it was hold se follows:-- "Having regard to the rights expressly conferred upon him by the Scheme itself, an allottee in whose favour an allotment has been confirmed, acquires a right which is In every sense of the term `real property' In its true juristic concept an interest in land subject to the right of resumption the allottee becomes clothed with all the other usual incidents of at least an occupancy tenant in the lands so allotted. Thus, he may subject to those conditions and covenants deal with the same as any other such tenant would have been entitled and may even dispose of them or alienate them either by gift inter vivos or by will."
22. The allottees in accordance with clause 14 of Chapter II, Part of the Scheme, were permitted to transfer by sale, exchange, gift will, mortgage by private contract, but even so, the land continued to remain evacuee property throughout and had to be utilized only for purposes approved by the Rehabilitation authorities and it could be resumed if the conditions were not fulfilled by the allottees. Under sub-clause (2) of the said clause, such alienation could only be entered in the cultivation column of the revenue records, the Implication being that the land continued to be evacuee after such alienation. According to the decision, in Abdur Rashid's case, cited above, an allottee does not become the absolute owner of the land, but he does acquire an interest in the land which in terms of that decision is 'real property'. The confirmed allottee becomes clothed with the rights of "at least an occupancy tenant". For purposes of pre-emption under the Punjab Tenancy Act, 1913, occupancy tenant is included fin the term 'land' as defined in section 2(3)(f) of the Punjab Land Alienation Act which definition has been adopted by the Pre-emption Act. Sale as defined in section 3(5) of the Pre-i emption Act does not include the creation of an occupancy tenancy by the landlord, but the sale of occupancy rights is pre-emptiable under that Act.
23. Whether or not the rights of a confirmed allottee answer to any of the descriptions of the properties mentioned in section 4 of the Pre-emption Act, was examined by a Full Bench of the Lahore High Court in the case of Babu A.I Muhammad v. Mahmood-ul-Hassan (PLD 1968 Lah. 329), wherein it was held, following the view of this Court in Abdur Rashid's case, that the allotment of land after it Is confirmed, creates a heritable interest and Is Coal property. The interest of the confirmed allottee in the land was, therefore, held to be "village immovable property" and it sale covered by sections 4 and 6 of the Punjab Pre-emption Act. The right of alienation having been expressly granted to the confirmed allottees by the Scheme itself, it Is obvious that they were being given a transferable right in the lands allotted to them which would normally attract the exercise of the right of pre- emption provided there is no statutory bar to the exercise of such a right. , On the view of the matter as discussed above, I would formulate my conclusions as follows:-
(1) There is no right of pre-emption in regard to sale by temporary allottees of their rights in the lands as they do not get any saleable interest in those lands held by them temporarily.
(2) Permanent transferees under the Land Settlement Act acquire full ownership rights of the lands conferred on them and the sale by them is the sale of agricultural land owned by them which is subject to the right of pre-emption under the Pre-emption Act.
(3) The rights in land allotted to confirmed allottees under the Land Settlement Act and the Settlement Scheme Is "real property" and the rights conferred on them fall in the category of 'village immovable property'. The sale of such rights is pre-emptiable under the Punjab Pre-emption Act.
24. The other part of the question, whether the right of pre-emption qua sales made by the confirmed allottees of their rights and by the permanent transferees of the lands held by them under the Settlement laws, is enforceable in the civil Courts, entails a consideration of certain provisions of the Rehabilitation and Evacuee laws which envisage the ouster of the Jurisdiction of the civil Courts In relation to questions pertaining to evacuee properties. The relevant legal provisions which need to be examined in this behalf are section 16 of the Pakistan (Administration of Evacuee Property)
25. Act, 1957 and section 6 of the Displaced Persons (Land Settlement) Act XLVII of 1958. It will be convenient to reproduce these provisions here. Section 16 of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957), reads as follow:- "16. Exemption from legal process.-(1) Property which has vested in, or of which possession has been taken by, the Custodian shall be exempt from all legal process, including seizure, distress, ejectment attachment or sale by any officer of a Court or any other authority, and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority, and the Custodian shall not be divested or dispossessed of' such property by operation of any law for the time being In force.
(2) Upon the commencement of this Act, any such legal process as aforesaid subsisting immediately before such com--mencement shall cease to have effect and all evacuee property in custody of any Court, or Receiver, guardian or other officer or person appointee by it, shall, upon delivery of the same being called for by the Custodian, be delivered to the Custodian
(3) Nothing contained in the foregoing sections shall-
(a) prevent a civil Court from ordering specific performance of any agreement to sell or exchange immovable evacuee property where such agreement has been approved by the Custodian, or a Registering Officer from registering a deed of sale or exchange relating to such property where a certificate under section 20 has been granted by the Custodian; or
(b) affect any power conferred o n the Central Government by or under any law for the time being in force to requisition or acquire property, and it is hereby declared that if by or under such law or any other law for the time being in force a like power is conferred upon or delegated to a Provincial Govern--ment, the Provincial Government may exercise the same in relation to evacuee property with and only with the previous approval of the Central Government and subject to such directions as the Central Government may at any time see fit to give."
26. Section 6 of the Land Settlement Act Is reproduced below :- "Nothing which forms part of any of the compensation pools constituted under section 5 shall be liable to be proceeded against for any claim in any manner whatsoever in execution of any decree or order by any process of Court or other authority."
27. The question that arises for decision in the context of these provisions 14 whether a suit for pre- emption In a civil Court In respect of a sale by a permanent transferee of his lands and by a confirmed allottee of his rights, is within the prohibition of any of these provisions.
28. I find myself in full agreement with this view which is in line with the decisions of this Court in Devached Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi (PLD 1965 SC 356) and Rahim Bakhsh v. Ahmad Bakhsh (PLD 1964 SC 189), wherein it was observed that as soon as the property Is acquired by notification under section 3 of the Displaced Persons (Compensation and Rehabilita--petition) Act (which Is analogous to the provisions contained In section 4 of the Displaced Persons (Land Settlement) Act], it ceases to be evacuee property and the Custodian has no further jurisdiction with regard to it. In Rahim Bakhsh's case, it was held that prima facie the property having gone into the pool for distribution under the Act, the acquisition by notification extinguishes whatever the rights or interests the evacuee might have in the property as provided in subsection (3) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act. The notification of acquisition of evacuee lands by the Central Government was published on the 15th of April 1959, and as from that date the land ceased to be evacuee property.
29. It seems to me quite obvious that pre-emptor-decree-holder when getting his decree and even while he puts it into execution, merely seeks his substitution for that of the vendee against whom he successfully establishes his rights of superior purchase. He does not thereby proceed against the property in the compensation pool constituted under section 5 of the Settlement Act for enforcing the liability of any such property to meet that claim: On a parity of reasoning I am of the opinion that even section 16 of the Pakistan (Administration of Evacuee Property) Act, in spite of the wide terms in which it is couched, did not intend or constitute any bar to the enforcement of the right of pre-emption by a civil suit as the relief sought in the pre- emption suit is merely the substitution of the pre-emptor for the vendee without, in any manner, subjecting the property to any legal process such as is contemplated by section 16, ibid nor does it amount to the divesting or dispossession of the Custodian from the property concerned. The corpus of the property remains evacuee and a successful pre-emption suit in a civil Court would merely bring about a change by substituting the pre-emptor for the vendee as the holder of the rights which were sold to the vendee by the quasi-permanent allottee. The decree for pre--- emption which matures for execution after the full pre-emption money is paid by the pre-emptor in Court, can be put into execution for possession of the pre-empted property by the pre-emptor the mere fact that the decree also Involves possession of the property does not, in any manner, disturb the adminis--trative control of the Custodian over that property, the preservation and protection of which, without interference by any outside agency, appears to be the sole object of section 16. The predecessor provision of section 16 was contained in section 12 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949, which was word for word the same as section 16. This provision came In for consideration in two cases of the Lahore High Court (one a Division Beach judgment and the second a Single Bench judgment) both written by Mr. Justice B. Z.
30. Kaikaus, as his Lordship then was. These judgments were reported as Nur Ahmad and 2 others v. B.
31. Muhammad Ibrahim and another (PLD 1954 Lab. 240) and Qamar-uz-Zaman Khan v. The Punjab Province and others (PLD 1955 l64h, bl2). In cite latter case, it was observed as follows:- "It is not possible to interpret the words of section 12(1) In their widest Import and some kind of limitation hat to be placed upon them. The key to that limitation is to be found in the marginal note to the section. It runs `Exemption from legal process'. The object of section 12 was to exempt evacuee property from legal process so that there may be no interference with the administrative control of the Custodian. An order would be hit by section 12 only if it directs or enables the taking of some action with respect to evacuee property. Every order which has reference to evacuee property is not necessarily within section 12. A simple declaration that an order passed in respect of evacuee property is void does not in any way affect me control of the Custodian and is not excluded from the jurisdiction of the civil Courts."
32. The observations of Mr. Justice Kaikaus In the earlier case of Nur Ahmad v. B. Muhammad Ibrahim, which are in greater detail, merit reproductions-- "The marginal note (of section 12) only speaks about exemption from legal process. After mentioning seizure, distress, attachment etc., the section goes on to say that no Court would pass any other order of whatever kind' in respect of evacuee property. It Is difficult to imagine that the Intention was not only to exempt evacuee property from legal process but even to present Courts from passing any kinds of order with respect to it. Let us take the case of a suit of pre-emption where an evacuee had purchased certain property of which he is now the owner and another person wants to pre-empt the sale. Can the Court not pass a decree for pre-emption at all? At the time when a Court passes a decree, the property is still evacuee property. It is only when money is deposited in accordance with the decree of Court that the ownership stands transferred to the plaintiff. In redemption suits where either the mortgagor or the mortgagee is an evacuee it is only a Civil Court which can pass an order for redemption. Similarly, under the Restitution of Mortgaged Lands Act it is only a Special Collector appointed under that Act who can extinguish a mortgage which is in favour of an evacuee or in which an evacuee is the mortgagor. Liquidation and insolvency proceedings are other examples of cases where Courts have to pass orders with respect to evacuee property. Under the Alienation of Land Act it is only the Collector who can terminate a mortgage of land effected by a member of an agricultural tribe before the period of the mortgage actually expires. Section 12, while it provides that no Court or other authority shall piss an order relating to evacuee property, (foes not at the same time make any provision that orders which were in the pastto be made by other authorities can now be made by the Custodian. All the orders which we have mentioned above can still be passed only by Courts and officers other than the Custodian. The words used in the section are rather wide and unless we interpret the words `no injunction or other order' as ejusdem genesis with seizure, distress etc., inconvenient results may follow."
33. The learned Judges in the Full Bench case of Babu A.I Muhammad, took note of these judgments but held that the views expressed In these judgments could not be pressed into service in suits for pre-emption as the pre-emption suits are accompanied by a prayer for possession and if decreed, an order has to be passed in respect of an evacuee property. The other ground on which the view expressed fin these judgments wasdissented from- was that subsection (2) of section 12 was not adverted to in those judgments which provided that upon the commencement of the Ordinance if there was any legal process pending or subsisting before that date, it shall cease to have effect. On that subsection the conclusion reached by the Full Bench was that a suit pending in respect of an evacuee property comes to an end by operation of law. With respect, It seems to me that the key- note of those judgments in conveying the real purport of section 12, has been missed in the Full Bench judgment which was that the immunity of the evacuee property from legal process would only include those steps in litigation or otherwise which would amount to interference in the administrative control of the Custodian in the evacuee property. If any action in the civil Courts, however, remotely connected with the evacuee property is held to be barred under section 12 or section 16, ibid it would create a vacuum for redress of many grievances which may arise against persons holding evacuee properties without, In any manner, seeking any change in the nature of the evacuee property or disturbance of the recognized status of the Custodian as the administrator of that property. In my view, a pre-emption suit qua the sale of rights created in favour of a confirmed allottee in evacuee property made by the latter to a stranger merely seeks' the eviction of that stranger from the property and his replace merit by the pre-emptor and does not involve the issuance of any legal process against the evacuee property itself to come within the mischief of section 12 of Ordinance XV of 1949 or section 16 of Act XII of 1957. To that extent, with all respect, I express my dissent from the Full Bench judgment of the Lahore High Court in the case of Babu A.I Mohammad v. Mahmood-ul-Hassan cited above. However, a more fundamental question which arises in this behalf is whether the rights of a confirmed allottee which are carved out of the corpus of evacuee property with the permission and sanction of the relevant authorities, i.e., the Custodian, the Settlement Authorities and the Central Government and their sale which again is permitted under the Scheme formulated in this behalf by the competent authorities, can be deemed to be evacuee property to attract the provisions of the bar created by section 16 of Act XII of 1957. After giving a very anxious consideration to the matter my answer is in the negative. As already stated above by reference to the decision of this Court in Syed Abdur Rashid, these rights constitute real property and are at par with rights of occupancy tenancy. If these rights constitute real property in the nature of an occupancy tenancy and are heritable and transferable, there is no difficulty in reaching the conclusion that they constitute a "separate entity" by themselves, apart from the corpus of the property from out of which they have been created. After the creation of these interests, although emanating from the parent stock of the evacuee property, they are not treated or deemed to be treated as evacuee property by the relevant authorities. They assume a distinct entity of their own which must be maintained with regard to all rights and liabilities arising in respect of them. The Custodian ceases to have any administrative control over those rights, although textually and notionally they be called in name as evacuee property being the offshoot of the corpus of the property which undoubtedly remains evacuee until such time as it is acquired by the Government to form part of the compensa--petition pool. I would now proceed to examine the appeals in hand, in the light of the conclusions reached by me.
34. Civil Appeal No. K 34 of 1968 This appeal arises out of a suit for pre-emption in respect of sale of rights by a confirmed allottee which was dismissed by the trial Judge but was accepted, on appeal, by the learned Additional District Judge, Sukkur. A second appeal in the Karachi Bench of the former High Court of West Pakistan, was dismissed on the basis of the Full Bench judgment of the Peshawar Bench in Taza Gul's case already referred to in this judgment. The sale being of his rights by a confirmed allottee, the pre-emption suit was quite competent and was rightly decreed.
35. This appeal is dismissed.
36. Civil Appeal No. 80 of 1969 The land in dispute in this appeal was originally allotted to one, Siddiq Mohammad and Mst.
37. Shahzadi, who were displaced persons from Jammu & Kashmir. Both of them sold the land to Ghulam Ahmad by two separate mutations Nos. 861 and 862, which were sanctioned on the 9th of August 1961. Ghulam Ahmad, in turn, sold the same to the vendee Subedar Rehmat Khan, the predecessor of the present respondents. The sale was pre-empted by the appellant Jallu on the basis of ownership right in the same patti. The pre-emption suit which was instituted on the 4th of May 1964, was decreed on the 19th of December 1964. On appeal, the Additional District Judge, Gujrat by his order dated 7th of July 1965, held' that as the property was evacuee property, it was not pre-emptiable. A second appeal was preferred to the Lahore High Court which was dismissed by the learned Chief Justice, following the judgment In the Full Bench case of Babu All Muhammad v. Mahmood ul-Hassan on the view that although the sale of the rights of a confirmed allottee, was pre---emptiable section 16 of the Land Settlement Act, 1958, was a bar to the institution of the suit in a civil Court. It may be mentioned that after the sale In favour of Ghulam Ahmad the property was acquired by the Provincial Government in the first instance and by mutation No. 891 sanctioned on the 27th of April 1965, the evacuee rights were extinguished and the names of the Provincial Government were recorded in the revenue records as the owner of the land. On the same day, mutation No. 892 was sanctioned, whereby the ownership of the Provincial Government was extin--guished and ft was entered in the name of Ghulam Ahmad. The sale under pre- emption was, therefore, made by a person who had acquired permanent rights in the land under the Land Settlement Act after the same had ceased to be evacuee property. On the view that I have taken, section 16 of the Displaced Persons (Compensation and Rehabilitation) Act and section 6 of the Land Settlement Act (sic) did not constitute any bar in the way of the pre-emption suit. In the circumstances, the judgment of the learned Chief Justice of the High Court has to be set aside, with 1973 the result that the order of the trial Judge is restored whereby a decree for pre-emption was granted to the plaintiff appellant. During the arguments, it was pointed out that as original allottees in this case, namely, Siddiq Mohammad and Shahzadi, were displaced persons from Jammu & Kashmir, they held the land only temporarily till their repatriation without any right of alienation as provided in the Schema for the temporary allotment of rural evacuee property land to displaced persons from Jammu & Kashmir holding verified claims under Schedule V to the Registration of Claims (Displaced Persons) Act, 1956. Mr. Saeed-ur-Rahman Khan, the learned Advocate for the appellant, has drawn our attention to Appendix VII, printed at page 235 of the Displaced Persona (Land Settlement) Act, 1970 Edition, by M. A. Latif, containing the Schema for permanent allotment of evacuee agricultural land to claimants from Jummu & Kashmir. According to sub-clause (iii) of clause 4 of this Scheme, the allottee shall have the right of alienation of land prior to his repatriation to the occupied part of Jammu & Kashmir State and this shall be subject to the liability laid down in sub-para. (i) of this clause which is to the following effect :--
(i) All allotments of land made to claimants from Jammu and Kashmir State shall be subject to the condition that on repatriation of the claimant-allottee or and of his successor-in---interest to the occupied part of Jammu & Kashmir State the ascertained price of the land to the extent of his share shall be paid by him to the Central Government."
38. Since under the permanent Scheme the alienation of his rights could be made by an allottee displaced person from Jammu & Kashmir, the Initial sale by Siddiq and Mst. Shahzadi in favour of Ghulam Ahmad is not open to any exception. However, as I have already pointed out, the present pre-emption suit was in respect of sale by Ghulam Ahmad on whom rights of permanent settlement had been conferred by the Rehabilitation Authorities and the appellant- pre-emptor having pre-empted that sale by Ghulam Ahmad in favour of the vendee, merely steps into the shoes of the vendee and will get whatever rights were possessed by Ghulam Ahmad.
39. Civil Appeal No. 4 of 1970 This was a case of a sale of his rights by a confirmed allottee. The pre-emption suit filed by the respondent was dismissed by the trial Judge and an appeal preferred against it to the District Judge, Gujrat, was also dismissed. However, a revision filed by the respondent-pre-emptor succeeded in the High Court. A learned Single Judge held that the sale was in respect of evacuee property which tad been acquired by the Government, It did not therefore relate to evacuee property and that section 6 of the Land Settlement Act did not constitute a bar to the pre-emption suit. On the view that I have taken, as regards the pre-empti--bility of the sale and also in regard to the non-applicability of section 16 of the Displaced Persons (Compensation and Rehabilita-- petition) Act or section 6 of the Land Settlement Act, no exception can be taken to the judgment of the learned Single Judge.
40. This appeal is, therefore, dismissed.
41. Civil Appeals Nos. 171 and 172 of 1970 This was a case of a sale by a confirmed allottee and following the view of the Full Bench in Taza Gul's case, the pre---emption suit was decreed by a learned Single Judge of the Peshawar High Court reversing the decision of the Courts below which had dismissed the suit.
42. As the view of the learned Single Judge in the High Court does not call for any interference, this appeal stands dismissed.
43. Civil Appeal No. 191 of 1970 and C. A. 207 of 1969 This is a case of a sale by a person on whom rights of perma--nent settlement were conferred under the Land Settlement Act. The suit to pre-empt that sale which was dismissed by the trial Judge whose judgment was confirmed on appeal by the District Judge, was rightly decreed by a learned Single Judge of the Peshawar High Court, following the Full Bench Judgment of that Court in Toza Gul's case. This appeal stands dismissed.
44. Civil Appeals Nos. 249 to 263 of 1970 These connected appeals in which the parties are the same, arise out of 15 different suits which were filed by the appellant against the respondent, whereby he pre empted the various tran-- sactions of sale made by the vendor-allottees. The land in dispute had been acquired by the Government under section 4 of the Land Settlement Act and conferred on the vend or-allottees under section 15(3) of the said Act. A learned Single Judge of the Lahore High Court dismissed the suits, on the ground that as the property formed part of the compensation pool, section 6 of the Land Settlement Act was a bar to the maintainability of the pre-emption suits. In the light of my conclusion that section 6 has no application to such suits, the judgments of the learned Single Judge in the High Court made in revisional jurisdiction, have to be reversed and those of the trial Court restored whereby the plaintiff's suits for pre-emption were decreed.
45. Civil Appeal No. 290 of 1970 The learned counsel for the appellant has sought the withdrawal of this appeal which is, therefore, dismissed as withdrawn.
46. Civil Appeal No. 79 of 1971 This appeal arises out of a suit for pre-emption in respect of a sale of his rights by a confirmed allottee after the evacuee lands had been acquired by the Government under section 4 of the Land Settlement Act. The suit was dismissed by the trial Judge whose decision was upheld by the District Judge in appeal. A second appeal preferred to the High Court was dismissed on the ground that the appeal was not competently instituted as it was not accompanied by a copy of the judgment of the trial Court as required under Order XLII. Rule 2, C. P. C. As modified by the Lahore High Court.
47. The Courts below had dismissed the appellant's suit on merits on the ground that the suit was not 1973 maintainable In view of the bar of sections 6 and 25 of the Displaced Persons (Land Settlement) Act.
48. It was pointed out by the learned counsel for the appellant that the Memorandum of second appeal in the High Court was accompanied by a decree passed by the trial Court and that at the time of filing of the appeal the office had not taken any objection to the non-accompaniment of the copy of the judgment. It was further contended by the learned counsel that the index covering the file of the High Court indicated that a copy of the judgment formed part of the record and that the blame for its non-existence on the file could not be laid on the appellant to the point of penalizing him by dismissing his appeal. I consider that there is force in the contention of the learned counsel for the appellant that the summary dismissal of his appeal by the learned Single Judge on this technical ground was not justified, particularly as the index of the High Court file did show that the copy of the judgment of the trial Court had also been placed on the file. The judgment of the Courts below that section 6 constituted a bar to the maintainability of the suit, cannot be upheld in view of my con--clusion that section 6 aforesaid is not applicable to a pre- emption suit. In the result, this appeal is accepted, the judgments of the Courts below are set aside and a decree for pre-emption is passed in favour of the appellant on payment of Rs. 10,030 as prayed for by the appeal ant. The full pre-emption money if not already deposited in Court, will be deposited within one month from the date of the announcement of this judgment.
49. Civil Appeal No. 81 of 1971 The vendor in this case was an allottee on whom the land had been permanently settled. A suit to pre-empt the sale by the vendor against the appellant-vendee was decreed by the trial Judge and a revision petition filed against the judgment of the trial Judge was dismissed by a learned Single Judge of the High Court. The only point raised was that section 6 of the Land Settlement tact was a bar to the competency of the pre-emption suit. The learned Single Judge following the view in the case of Sher Mohammad and another v. Azmat A.I (PLD 1968 Lah. 1171) dismissed the revision petition. As section 6, in my view, does not create any bar in the way of pre-emption suit, this appeal has no merit and is, therefore, dismissed.
50. Civil Appeals Nos. 21-P, 22-P and 23-P of 1970 These three connected appeals in which the parties are the same, arise out of pre-emption suits which were filed by the respondent against the appellant-vendee. The suits were dismissed by the trial Judge on the ground that they were not maintainable. The pre-emptor-re3pondent filed appeals against the judgment of the trial Judge which were accepted by the District Judge as he held that the suits were maintainable. The cases were remanded to be tried by the lower Courts on the remaining issues. The vendee-appellant preferred second appeals in the Peshawar High Court which were dismissed by a learned Single Judge of that Court, following the Full Bench decision of the Peshawar High Court in the case of Taza Gul. No exception can be taken to the judgment of the High Court In these cases and in the result these appeals must be dismissed. The cases will go back to the trial Judge for decision on the remaining issues as ordered in the remand order of the District Judge, Campbellpur, dated the 14th of October 1965.
51. As these cases have involved decision on law points on which there was a conflict of judicial opinion, the parties in all these appeals are left to bear their own costs.
52. HAMOODUR RAHMAN, C. J.-I agree.
53. SALAHUDDIN AHMED, J.-I agree..
54. K.B.A.