This revision petition is directed against the order dated 24-10-1969 passed by the Administrative Civil Judge, Jhang answering an issue about com--petence of respondent's suit for pre-emption, against the defendant-petitioner.
2. The land in dispute comprises of an area of 8 kanals 7 marlas situated in village Shorkot Shimali which was purchased by the petitioner on 15-1-1968 by a registered sale-deed from Fazil Muhammad. Muhammad Riaz,respondent, who is son's son of Fazil Muhammad, vendor filed a suit for possession of this land by pre-emption on 11-1-1969 claiming superior right of pre-emption on ground of his relationship with the vendor. The vendees-petitioners con--tested the suit inter alia on the ground that the plaintiff-respondent could not purchase this land on account of the bar imposed by Martial Law Regulation No. 64 and consequently the pre-emption suit was not competent. The following preliminary issue was framed by the learned trial Court;---
1. Is the suit incompetent in view of preliminary Objection No. 1 of the written statement? O. P. D.
This issue was decided against the defendants-petitioners by the impugned order. In order to understand the reasoning of the learned trial Court it is necessary to make a reference to the provisions of Martial Law Regulation No. 64 and some other facts. Para. 25(5) of the regulation provides that if the area of a land-holder in a village is less than a subsistence holding (less than 100 kanals in the Punjab), he can sell a portion of his holding only to a person who is an owner in the same village. This bar is being invoked in the present case against the maintainability of suit of pre-emption by a person who does not own any land in the village, on the ground that Fazil Muhammad had sold only 8 kanals 7 marlas out of his total holding of 77 kanals 18 marlas in this village which was less than a subsistence holding. It is admitted that on the date of sale, the plaintiff-respondent was not an owner in the estate while the vendee-respondent owned land there. The plaintiff-- respondent however secured by gift some other land in the village from his father by a deed dated 28-4-1969 which was registered on 29-4-1969 after expiry of period of limitation for a suit for pre-emption against the original sale.
3. The learned trial Court overruled the objection about competence of the suit on the ground that by improvement in status during pendency of the suit the plaintiff became owner of the village and he could, therefore, pur--chase the land in dispute. He did not agree with the arguments of the learned counsel for the defendants that in order to enjoy superiority of right of pre--emption the plaintiff should have been qualified to purchase the land under Martial Law Regulation No. 64 on the date of sale.
4. A new development took place during the pendency of this revision petition. In exercise of the powers conferred on it the West Pakistan Land Commission issued Notification No. ASR-II- 182/70/1126-LC dated 20-2-1970 in relaxation of the provisions of sub-para. (4) of para. 25 of the Regulation, `( that a holder of a pre-emption decree granted by a competent Court, shall acquire area less than a subsistence holding even though he may not be an owner of the same village, den or mauza. This notification was published in the Gazette of West Pakistan dated 3-4-1970. Prima facie this notification removes the objection raised by the petitioners.
5. The learned counsel for the petitioners argued that the provisions of MLR 64 override, by virtue of its para. 3, all other laws and shall have effect notwithstanding anything to the contrary in any other law. The superior right of the plaintiff-respondent to purchase the land in dispute was there-- fore, negatived by para. 25. He contended that the plaintiff must show his superior right on the dates of sale, institution of suit and the decree and as the respondent had no right to purchase the property on the date of sale or even on the date of the suit, he had no locus standi to file the suit.
6. The learned counsel for the respondent on the other hand argued that the superior right of acquiring agricultural land by pre-emption is the right as provided by section 15 of the Punjab Pre- emption Act. He submitted that at most the requirement of para. 25 of MLR 64 is that a pre-emptor must be an owner of den or village on the date when under Order XX, rule 14, C. P. C. He is substituted for the vendee. He also relied upon the press note issued by the West Pakistan Land Commission on 1st March 1970 that the bar of Clause 25 will not apply to a holder of a pre-emption decree.
7. In reply the learned counsel for the petitioners argued that this press note could not apply to the present suit as it is not retrospective.
8. The purport of the argument of the learned counsel for the petitioners is that if a decree is passed in favour of the pre-emptor that would offend against the provisions of para. 25 of Martial Law Regulation No. 64. The answer to this argument is furnished by the dictum laid down in Nasir Ahmad 4 Khan v. Mst. Ismat Jehan Begum (1968 SCMR 667). It was held that such a question falls within the exclusive function of the Commissioner or the Chief Land Commis--sioner. The facts of that case were that by a dower deed dated 19th November 1960 executed by Nazir Ahmad Khan, appellant, in favour of his wife Mst. Ismat Jehan Begum, respondent he purported to transfer by way of dower to Mst. Ismat Jehan Begum an area of 280 kanals of land situate in village Shah Dhand out of his total ownership of 383 kanals 18 marlas in that village. A mutation was attested by the Political Naib-Tehsildar on the 20th June 1961 on the assumption that the whole of the holding of the appellant had been alienated in favour of his wife. Before the Collector, the appellant took the stand that the alienation was within the mischief of para. 25 of Martial Law Regulation No. 64 in so far as it would reduce the holding of the appellant, after the alienation to less than a subsistence holding. Part of this land was according to .The appellant's case covered by the village Abadi, and if that area was excluded as not falling within the definition of "land", within the meaning of the Regulation, the area left with the appellant after the alienation would be reduced to 97 kanals 13 marlas which would be below the area of a subsistence holding. This objection was not accepted by the Collec--tor. On further appeal, however, the Additional Commissioner set aside the mutation on the ground that it was repugnant to para. 25 of M.L.R.
64. The respondent went up in revision to the Board of Revenue but later do withdrew it as in the meantime she had filed a civil suit for a declaration of title. The suit was decreed in favour of the respondent. This decree was maintained in appeal by the High Court. The Supreme Court granted Special Leave to Appeal inter alia to consider the question whether the civil Court's jurisdiction to consider the point whether the transaction offended against the provisions of Martial Law Regulation No, 64 was barred. After the trial Court's decree, the respondent applied for partition of her share in the joint holding to the Revenue Authorities, The partition order was maintained by Mr. I. U. Khan, Member, Board of Revenue, On the question of jurisdiction of the suit, their Lordships of the Supreme Court held as follows :------ "The question of jurisdiction of the civil Courts has to be considered in the light of paragraphs 3, 4 and 27 read with para. 25 of Martial Law Regulation No. 64. Paragraph 3 provides:----- ---The provisions of this Regulation, and any rule or order made there--under, shall have effect, notwithstanding anything to the contrary in any other law, or in any order of or decree of Court or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document.' Paragraph 4 enacts that for carrying out the purposes of the Regulation, a Commission will be constituted consisting of the Governor of the West Pakistan and not more than five other members to be appointed by him. The Commission was to have all the powers necessary for the implementation of the Regulation and incidentally, to set up organizations and appoint officers, authorities and persons and confer powers on, and assign duties to, them. One of the powers conferred on the Commission is to make such provision as may be necessary, by order notified in the official Gazette, to remove any difficulty that may arise in giving effect to the purposes of the Regulation. Such an order if duly notified, would be deemed to form part of the Regulation. Sub- para. (6) of this paragraph provides that where any dispute arises in carrying into effect the provisions of the Regulation, such dispute shall be referred to the Commission, whose decision thereon shall be final. This paragraph, inter alia, also lays down that the Commission may nominate one of its members to be the Chief Land Commissioner, who, subject to such directions as may from time to time be given by the Commission, shall be responsible for the implementation of this Regulation. Paragraph 27 bars the jurisdiction of all Courts including the High Court and the Supreme Court or of any other authority, other than an authority, appointed under the Regulation, in respect of any matter which the Commission, is empowered to determine. It would thus appear that the question whether para. 25 invalidates the transaction or not is one falling within the exclusive functions of the Commission or of the Chief Land Commissioner who are charged with the duty of implementing the provisions of the Regulation."
It can, therefore, be safely said that the civil Courts have no jurisdiction to go into the question whether a pre-emption decree if passed in favour of the respondent, would go against the provisions of para. 25(4). Paras. 3, 4 and 26 of Martial Law Regulation No. 115 which has repealed M.L.R. 64, are couched in almost the same language as paras. 3, 4 and 27 respectively of A the Repealed Regulation. Consequently the law laid down in the above authority still holds the field. By the notification dated 3-4-1970 the Commission declared that the pre-emption decree would not be affected by the provisions of para. 25. The civil Court's jurisdiction to enter into this con-- troversy is now excluded for this reason too.
9. Assuming that civil Court has jurisdiction, the arguments of the learned counsel for the petitioner are without force. It is settled law that a pre-emptor must halve and retain a superior right of pre- eruption on three dates i.e. the dated of sale; (2) the date of suit, and (s) the date of decree, Madhd Singh v. Lt. James R.R.Skinner (AIR 1941 Lah. 433 The question is whether these superior qualifications which must be retained on the three dates are the qualifications laid down by section 15 of the Punjab Pre-eruption Act, on the strength of which a suit for pre-eruption it brought or there are some other qualifications also having reference to the property in respect of which the claim for pre-eruption is made. To answer this query it is necessary to consider the provisions of the Punjab Pre-eruption Act.
10. Section 4 defines the right of pre-eruption as the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons. It further provides that this right arises in case of sale or of foreclosure of the right to redeem such property.
Certain properties are exempt or can be exempted from the right of pre-emp--petition. Section 5 provides that the right shall not exist in respect of sale or foreclosure of a right to redeem (a) a shop, sarai or takia, (b) a dharamshala, mosque or other similar building. Section 8 provides that except as may otherwise be declared in the case of any agricultural land in a notification by the Local Government, no right of pre-eruption shall exist within any Canton--ment. This section further empowers the Board of Revenue to declare by notification that in any local area or with respect to any land or property or class of land or property, no right of pre-eruption or only such limited right as the Board of Revenue may specify shall exist. Certain sales are or can be excluded from the operation of the Punjab Pre-eruption Act. Section 8 authorises the Board of Revenue to declare by notification that with respect to any sale or class of sale, no right of pre-eruption or only some limited right of pre-eruption shall exist. Section 9 provides that a right of pre-eruption shall not exist in respect of any sale made by or to the Government or by or to any local authority or to any company under the provisions of Part VII of the Land Acquisition Act, 1894 or in respect of any sale sanctioned by the Deputy Commissioner under section 3(2) of the Punjab Alienation of Land Act, 1900. Section 2(1) lays down that the Punjab Pre-eruption Act shall not affect sales in execution of a decree under Order XXI, rule 88, or the right of pre-eruption of landlord to purchase in case of alienation of occupancy tenancy rights under section 5, Punjab Tenancy Act, 1887. Section 3(5) excludes from definition of sale, a sale in execution of a decree for money or of any order of a civil, Criminal or Revenue Court or of a Revenue Officer, and the creation of occupancy tenancy right by a landlord whether for con--sideration or otherwise. Section 23(a) provides that sale in contravention of the Punjab Alienation of Land Act, 1900 will not be pre-emptiable. Then there are provisions about qualifications of pre-emptors. Section 15 deals with persons who are qualified to pre-erupt sales of agricultural land or village immovable property. These qualifications are relationship or ownership of property other than the property sold which is the subject-matter of right of pre-eruption. Under this section legal heirs come first, then the co-sharers, the village proprietors and finally the occupying tenants of the same (and or of other land in the estate within which the land or property which is the subject-matter of suit is situated. Section 16 vests the right of pre-eruption in respect of urban immovable property in co-sharers, participators in appendages or easements i.e. Owner of building or structure if the sale is of site, owners of property having staircase or entrance from the street in common with the property sold, owners of servient heritage if sale is of dominant property aid owner of dominant heritage if sale is of servient property and lastly owners of contiguous pro--perties. Section 14 lays down an additional qualification.. It' provides that no person other than a person who was at the date of sale a member of an agricultural tribe in the same group of agricultural tribes as the vendor, shall have a right, in respect of agricultural land sold by a member of an agricul--tural tribe. Section 23(b) provides that no decree for pre-emption shall be passed until the plaintiff has satisfied the Court that he is not debarred from the provisions of section 14 of this Act from exercising the right of pre-- emption.
11. It will be clear from this analysis that the Punjab Pre-eruption Act is exhaustive of transactions and properties to which the right of pre-eruption applies. It is also exhaustive of qualifications that- a person must possess to claim a superior right of pre-emption or the disqualifications which deprive a person of such rights. It incorporates in section 16 the qualifications of a pre-emptor under the Muslim Law but the principles of personal law of Muslims cannot be used to override anything which is clearly provided by Statute. Madhb Singh v. Lt. James R. R. Skinner, Dr. Labh Sfngh v. Kehr Singh mid another (A R 1945 Lah. 11Similarly it makes provisions for proof of custom in certain cases (section 7) but except under these provisions custom cannot add to or subtract from the right of pre-eruption. It necessarily follows that the plaintiff is required to maintain on the date of sale, date of suit and date of decree only those superior qualifications which are provided in the Pre--emption Act unless another statute specifically provides otherwise.
12. Martial Law Regulation No. 64 is not such a statute. It does not deal with right of pre-eruption. It does not supplement in any manner the qualifications and disqualifications laid down by the Punjab Pre-eruption Act. There is nothing in it which may be contrary to the provisions of the Punjab Pre-eruption Act and which may overrule its provisions. There is no conflict between the provisions of the Act and the Regulation. The object of section 15 of the Act is to preserve the homogeneity of the village community and to prevent fragmentation of holdings. Qaim Din v. Said Ahmad (PLD 1967 Lah. 117). The Regulation does not have a different objective. There is, therefore nothing in the Punjab Pre-eruption Act notwithstanding which provisions of M. L. R. 64 may have effect.
13. Para. 25(4) and (5) provides that property in land will not pass by alienation to an alienee if he is not owner in the village, den or mauza provid--ed that the land sold forms only a part of the total holding of a vendor which is less than a subsistence holding. This disqualification is to enure only at a particular stage i.e. the time of purchase. It can be invoked only if the property is alienated by purchase, gift, mortgage or otherwise.
14. It is settled that right of pre-eruption is not a right of repurchase but only a right of substitution.
Abdul Karim v. Fatal Mohammad (PLD 1967 SC 411). Such right cannot be affected by para. 25 of M.L.R.
64. Clearly the restriction about alienation cannot be applied to a case of substitution.
Assuming that this restriction can be extended even to substitution, the point of time at which restriction will apply will be the date of substitution. Just as it is necessary for a purchaser to have the qualification-of ownership in village on the date of sale so a person claiming to be substituted may be required to show that qualification at the time of substitution, which according to Order XX, rule 14, C. P. C. Is the date on which the pre-emption money is deposited in Court by the pre- emptor. The plaintiff' in the present case has become owner in the village by gift even before the passing of any decree in his favour and lie does not incur any such disqualification.
The order of the trial Court is correct. The revision petition is dismissed. No costs.