1. ' NASIM HASAN SHAH, J.--This is a petition for leave to appeal directed against the judgment of the Lahore High Court dated 8-4-1978 whereby the Second Appeal (RSA No, 929 of 1967) filed by the petitioner was dismissed.
2. ' The relevant facts are that on 5-6-1967 the respondent filed a suit for possession through pre- emption of land measuring 103 Kanals 13 Marlas, situate in village Gagrana, Tehsil and District Jhang. This sale was out of the land originally allotted in favour of one Sultan. The said Sultan was a refugee right-holder who had submitted three claim forms, bearing Nos. 7431, 7434 and 7435 on account of the land abandoned by him in India. He was allotted three kinds of land against his claims, namely, the land against the area wherein he had full ownership rights, the land subject to mortgage and the land wherein he had occupancy rights. In lieu of these claims some land was allotted to him in village Baqri and some in village Gagrana. The total units of the aforesaid three claims worked out to 4624. Land measuring 310 kanals 18 marlas was transferred to the aforesaid Sultan against 2021 units in village Gagrana and 2603 units in village Baqri. On the death of Sultan he was succeeded by Raza Sultan, Hassan Sultan and Nargis Khatoon. The last two mentioned persons, namely, Hassan Sultan and Nargis Khatoon, sold their shares to the respondents, on 8-6- 1965. About a month thereafter Raza Sultan on 6-7-1965 sold his share to the petitioner. Both these sales were in respect of land situated in village Gagrana. The respondents, who on account of the earlier sale had become co-sharers in the khata filed a suit to pre-empt the sale of 1/3rd share made by Raza Sultan in favour of the petitioner. The petitioner resisted the suit and apart from other preliminary objections the important question raised was that the land allotted to Sultan included the land in lieu of his mortgage in respect of which the mortgage money had not admittedly been paid and, therefore, the defendants (respondents herein) had not become the full owners of the land and as such the land was not preemptible.
3. ' On the pleadings of the parties, eight issues were framed, of which the following three appear to be relevant for our present purpose:--
(2) Is the land in dispute an evacuee property and is exempt from being preempted? OD.
(3) Has this Court no jurisdiction to hear this suit? OD.
(5) Have the plaintiffs a preferential right of pre-emption as compared to that of the defendants- vendees? OP ' The learned trial Court held on the relevant issues that both the vendors were not the full owners as the mortgage money in respect of the mortgage area abandoned by their predecessor-in- interest had not been paid and, therefore, the full rights had not been acquired. Reliance was placed on PLD 1966 Lahore 723, wherein it was held that the land allotted to mortgagor was provisional and the allotment became final only after the mortgage money had been paid. The learned trial Court, therefore, held that the respondents could not pre-empt the sale.
4. ' The respondents preferred an appeal before the Additional District Judge, which was accepted by him vide judgment dated 22-11-1967. The learned Additional District Judge agreed with the proposition that until the payment of mortgage money the land allotted in lieu of the land abandoned under mortgage did not confer full title to the allottee, who lacked full ownership right therein, but he, relying upon three mutations: Ex. P. 3, which showed that the entire evacuee property in village Gagrana was mutated in the name of the Central Government and column No, 12 of it showed that this mutation was intended to confer full rights in respect of this property; Ex.P.
5. 4, which showed that a mutation in the name of the allottees on behalf of the Central Government was sanctioned on 15-6-1961 and Ex.P.5 (which was the Jamabandi showing that Raza Sultan, the vendor in this ease, held proprietary rights in the land in dispute) held that Raza Sultan had acquired full rights in the property. It was further held that the question whether the mortgage money was yet to be recovered by the Settlement Commissioner was a matter which could not be agitated in the Civil Court in these proceedings and the trial Court had travelled beyond its domain in entering into this controversy. The conclusion reached was that the Settlement Authorities having conferred full proprietary rights on Raza Sultan, the vendor of the land in dispute, as also on the vendors of the land sold in favour of the respondents, the said respondents were co-sharers in Khata No, 72 and they could assert their preferential right of pre-emption. The suit was, therefore, decreed vide judgment dated 22-11-1967.
6. ' Dissatisfied, the petitioner preferred an appeal before the High Court, which upheld the finding of the learned Additional District Judge, observing that no doubt in RL.TI(Ex.P.6)it was mentioned that the land was of three categories, namely, full proprietary rights, land in possession of occupancy tenants without mortgage and the land in possession of occupancy tenant subject to mortgage but in the copy of the Jamabandi(Ex.P.5) of the year 1960-61 there was no mention of any mortgage. The conclusion was, therefore, drawn that although at the time of allotment some portion of the land was subject to mortgage, thereafter it ceased to remain so, accordingly, after proprietary rights were conferred under section 15 of the Displaced Persons (Land Settlement) Act, 1958, prepared in the year 1960-61 the vendors were shown as full proprietors and the land was not found subject to mortgage. Since both the sales took place in 1965 after full proprietary rights had been conferred upon the vendors, the respondents purchased the said rights and became co- sharers in the Khata. Similarly, the petitioner also purchased full ownership rights, and since the respondents were co-sharers in the Khata, they could successfully bring a suit for possession by preemption, which was rightly decreed by the learned Additional District Judge.
7. ' The learned counsel for the petitioner submitted before us that Ex.P.3 and Ex.P.4 were general notifications whereby proprietary rights were conferred upon refugees. However, without any express finding that the mortgage money had been paid proprietary rights could not be conferred on Sultan and the mortgagee status could not be washed away.
8. ' The main question, therefore, is whether Raza Sultan was proprietor of the land sold to the petitioner. The question is essentially one of fact. The learned Additional District Judge and the learned Judge in the High Court taking into consideration the mutations Ex.P.3, Ex.P.4 and Ex.P.5 held that he did indeed have proprietary rights in the land. We are not inclined to interfere with this finding more particularly because in his own statement made before the trial Court the petitioner admitted in cross-examination that the refugee (Raza Sultan) had become owner of the property and, therefore, he had purchased the land. In the face of this statement and the circumstances noticed by the learned Additional District Judge and the High Court, the petitioner can hardly assert that Raza Sultan did not have propriertary rights in the land alienated by him.
9. ' No ground for interference is made out. This petition for leave to appeal is accordingly dismissed.