' This judgment will dispose of Regular Second Appeal No,93 of 1977 (titled Amjad Hussain v.
Muhammad Zaeem-ur-Rehman etc.), Regular Second Appeal No,115/77 (titled Abdul Rashid etc. v.
Muhammad Zaeem-ur-Rehman etc.) and Regular Second Appeal No,116/77 (titled Ghulam Rasul etc. v. Muhammad Zaeem-ur-Rehman etc.), as all the three appeals involve the examination of similar question of law and facts.
FACTS OF R.S.A. NO. 93 of 1977.
2. The facts in brief are; that Mst. Aisha Bibi alienated the land in dispute (comprehensively described in the plaint) through oral sale in favour of Walayat Khan, Abdul Majid, Muhammad Bashir, Mst. Zainab Bibi, Mst. Jan Begum and Amjad Hussain (minor). The sale was reported to Patwari on 10-8-1971 and the mutation was attested by the Revenue Officer on 31-8-1971. It is relevant to mention that in mutation share of Walayat Khan and Abdul Majecd Khan was recorded as 1/3rd, while share of Muhammad Bashir and Mst. Zainab Bibi wife of Muhammad Bashir was entered as 1/3rd. The share of Jan Begum and Amjad Hussain (minor) son of Mst. Jan Begum comes to be 1/3rd. On 27-7-1972, Muhammad Zaeem-ur-Rehman, Muhammad Anees-ur-Rehman and Muhammad Attique-ur-Rehman, brought suit (Civil Suit No,313 of 1974) for preemption on the basis of superior right of pre-emption of being legal heirs of Mst. Aisha Bibi. The suit was contested on number of grounds. It is unnecessary to note all the grounds except that objection was taken that the vendees were effectees from Mangla Dam and so the sale made in their favour was not preemptible. Ch. Muhammad Ali, Civil Judge, 1st Class, Multan by means of judgment and decree, dated 18-4-1974, decreed the suit to the extent of Muhammad Bashir, Mst. Zainab Bibi, Mst. Jan Begum and Amjad Hussain. The suit to the extent of Abdul Majeed and Walayat was dismissed by the learned first Court by coming to the conclusion that they were oustees from Mangla Dam and were holder of certificates.
3. Feeling aggrieved, Muhammad Bashir, Mst. Zainab Bibi, Mst. Jan Begum and Amjad Hussain filed Civil Appeal No,246/13 of 1976 which was dismissed by the impugned judgment and decree, dated 24-1-1977. The decisions of the two Courts below noted above are being challenged in this regular second appeal filed by Amjad Hussain (minor only). .FACTS OF R.SA. NO.115 OF 1977
4. Mst. Aisha Bibi, made the transfer of land in dispute (completely desc. Ibed in the plaint) by means of oral sale in favour of Mst. Aisha Bibi wife of Muhammad Afsar, Abdul Rashid, Mst. Nazeer Begum and Arshad Mahmood, in lieu of Rs,60,480. Mutation No,59, was got attested on 31-8-1971.
The sale was pre-empted by Muhammad Zaeem-ur-Rehman, Muhammad Anees-ur-Rehman and Muhammad Attique-ur-Rehman, who filed suit (Civil Suit No,311 of 1973) on the gorunds of superior right of pre-emption being legal heirs of Mst. Aisha Bibi. The suit was contested on number of grounds. It was pleaded, herein, that the defendants-vendees were the oustees from Mangla Dam and so the sale in their favour was not pre-emptible in view of notification by the Government of the Punjab dated 18-4-1969, issued under section 8 of the Punjab Pre-emption Act (I of 1913). The learned Civil Judge by judgment and decree dated 16-41974, decreed the suit by holding that the four vendees were not the certificate-holders.
5. Feeling aggrieved by this decision, Mst. Aisha Bibi, Abdul Rashid, Mst. Nazeer Begum and Arshad Mahmood, filed Civil Appeal No,243/13 of 1976. The learned District Judge by judgment and decree dated 24-1-1977 dismissed the appeal. The judgment of the two Courts below has been assailed by Abdul Rashid and Arshad Mahmood in this appeal. The appeal has been filed by minors through Fazal Ellahi as guardian. It will be apt to note over here that Abdul Rashid and Arshad Mahmood minors were sued through their mothers respectively, who filed written statement on their behalf and effectively defended them throughout.
FACTS OF R.SA. NO.116 OF 1977
6. Mst. Ghulam Aisha made the sale of land (fully given in the plaint) by means of oral sale incorporated in Mutation No,60 in favour of Ghulam Rasool, Abdul Rashid sons of Muhammad Azam, Allah Ditta, Muhammad Aslam sons of Sakhi Muhammad for a consideration of Rs,57,120. It is to be noticed that the share of vendees were described in mutation which was attested on 31-8- 1971. The suit was contested. It was alleged that the vendees were displaced persons from the place utilized for construction of Mangla Dam and so the sale in their favour was exempt from the right of pre-emption, by means of notification issued by the Government of Punjab under section 8 of the Punjab Pre-emption Act. The learned Civil Judge by judgment and decree, dated 16-4-1974 decreed the suit.
7. ' Feeling aggrieved Ghulam Rasool, Abdul Rashid, Allah Ditta and Muhammad Aslam filed Civil Appeal (No,245/13 of 1976), which was dismissed by the learned District Judge, vide judgment and decree, dated 24-1-1977. Against, this, Ghulam Rasool and Muhammad Aslam have filed this appeal.
8. The appellant in all these appeals were represented by Mr. Khadim Nadeem Malik, Advocate.
Learned counsel impeached the decision in R.SA. No,115 of 1977 and R.SA. No,116 of 1977 on two grounds only:--
(i) It was contended that Amjad Hussain was the son of Muhammad Iqbal who was undeniably effectee from Mangla Dam. According to him, he was, therefore, entitled to the benefit of exemption under notification dated 18th April, 1969 issued under section 8 of the Punjab Pre-emption Act. It was argued that on 4-5-1972 another notification was issued which provided that the exemption would continue for a period of another year after the expiry of period specified in notification of 1969. Reliance was placed on Manghta Khan and others v. Mst. Hamida Begum and others PLD 1981 SC 51.
It was next contended that Amjad Hussain was a minor at the time of sale, at the time of institution of suit and at the time of passing decree by the first Court as well as the appellate Court. According to the learned counsel the trial Court did not pass the formal order of appointment of guardian ad- litem and so the proceedings from inception to finish before the first Court were null and void. On the strength of these facts it was maintained that the decisions of the appellate Court were also illegal and bereft of legal efficacy. Reference was made to Yar Muhammad v. Mst. Amanat and others 1988 CLC 1355.
9. Regarding R.SA. No,116 of 1977, learned counsel for the appellants only relied upon the contentions; that the appellants were oustees from Mangla Dam and the sale made in their favour was immune from the right of pre-emption.
10. Learned counsel for the respondents supported impugned decision. It was represented that Amjad Hussain was not a certificate-holder and so the sale in his favour was pre-emptible. Same was the case of other appellants. In respect of the second contention it was suggested that the suit was filed against the appellants Amjad Hussain, Abdul Rashid and Arshad Mahmood through their mothers; they filed written statement; conducted the defence on their behalf with full vigour; they filed appeals. According to the learned counsel, so suits were defended effectively and no prejudice was caused to the appellant on account of non-recording of orders of appointment of guardian. Reliance was placed on Faiz Muhammad v. Shaista Khan and another 1985 CLC 505, Dewan Jairam Dass and another v. Syed Niamat All and 4 others PLD 1982 Quetta 14 and Saadullah Khan and others v. Kaki Jan and others PLD 1962 (W.P.) Pesh.
171.
12. I have heard the learned counsel for the parties at considerable length and perused the record carefully with their assistance. The facts emerging from the record are not much in dispute. The superior right of pre-emption of respondents is not denied; it is not disputed that Amjad Hussain was sued through her (mother) it is not contested that she filed the written statement on behalf of Amjad Hussain. It is admitted that the respondents had filed an application for appointment of Mst.
Jan Begum mother of Amjad Hussain as guardian. Apart from these facts it is evident that neither Muhammad Iqbal was vendee nor he was certificate-holder. This notification came into consideration in Manghta Khan and others v. Mst. Hamida Begum and others PLD 1981 SC 51. In this case the suit for pre-emption.
13. In Regular Second Appeal No,115 of 1977 the suit was filed against Abdul Rashid and Arshad Mahmood minors through their mothers. It is not in dispute that they filed a written statement; that they lodged appeals on their behalf. It is also not disputed that Abdul Rashid and Arshad Mahmood are not the certificate-holders from competent authority. As regards Regular Second Appeal No, 116 of 1977 the appellants, admittedly, are not certificate-holders.
14. Having set down the facts of the case, the contentions of both the parties I herein proceed to determine these points. I take up the question of exemption under section 8 of the Punjab Pre- emption Act (I of 1913).
15. For the purpose of examination of this point, it is necessary to refer the notification dated 18th April, 1969, issued by the Government of Punjab under section 8(2) of the Punjab Pre-emption Act. It reads as under:- "No,40-45-68/1031 MR-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- 65/3465-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 effect decrees obtained by pre-emption prior to the date of its issue."
' On 4-5-1972 another notification was issued which provided that the exemption would continue for a period of another year after the expiry of the period specified in the notification of 1969."
' The vendees contested the suit on the plea that their land was acquired for Mangla Dam scheme; the sale in their favour was exempt from right of pre-emption under notification noted above. The learned trial Court rejected the plea and decreed the suit by holding that according to the deed of sale it was an indivisible transaction in which the purchase of more than fifty acres was involved and so the vendees were not entitled to the exemption. On appeal to the High Court, the learned Judge of the Division Bench dismissed the appeal by coming to the conclusion that the sale in favour of vendees.Could not be valid unless it was treated as one transaction; and because some of the vendees are not holder of certificate, therefore, the principle of sinker was applicable. The appeal of vendees who were certificate-holders, was accepted. However, the appeal of vendees who were not certificate-holders was dismissed. It was further held that the principle of sinker was not applicable to such sale.
16. It would be advantageous to quote the relevant passage from the judgment of his Lordship Mr. Justice Muhammad Afzal Zullah, which is as follows:-- "There is considerable force in this argument. The civil Court while deciding pre-emption suit is not required to test the validity of the sale on the touchstone of para.25 of M.L.R.64 so long as it was not disputed that there was a 'sale' which the plaintiffs sought to pre-empt. If there was no 'sale' then the suit for pre-emption itself might not be competent. Even otherwise, there is nothing to the Law Reforms Regulation at least on provision has been relied upon, to show that the vendees could not have enjoyed the holding according to their respective shares specified in the deed, as co-sharers.
Nor can it be said that when the entire holding was sold through sixteen sales, all taking place at one and the same time leaving nothing with the vendor, para. 25 of M.L.R. 64 would still be a bar to such sales. And in any case, all those sales would be valid after the exclusion of which the remaining holding would still be enough to save those transactions from being render void. Thus, from every point of view, the sale-deed in question could and should have been considered to have comprised of sixteen sale transactions for the purpose of exemption under section 8(2) of the Pre-emption Act. Paragraph 25, M.L.R. 64, therefore, could not be treated as a bar to the claim of exemption by the vendees. In the light of what has been held above with regard to the failure of some of the appellants to produce the certificates under the notification providing for the examination, we dismiss the appeal in so far as it relates to Muhammad Nazir, Abdul Hamid, Aziz Khan, Sardar Khan All Asghar and Muhammad Bashir (appellants Nos.6 to 8, 11, 12 and 16) respectively. The appeal filed by the remaining defendants-vendees in"
' The non-recording of formal order 4 the learned subordinate Judge view of our findings on the question of the divisibility the transaction and the effect of para. 25, M.L.R. 64 (1959), is allowed. The decree passed against them is set aside."
' The view in Manghta Khan's case was re-affirmed in Saudagar and another v. Lal PLD 1987 SC 27.
In this case appellants who were real brothers purchased two parcels of agricultural land. The respondent instituted two separate suits for preemption on the basis of superior right of pre- emption. The objection was taken by vendees that they were displaced persons from Mangla Dam and the sale made in their favour was not pre-emptible. The learned first Court decreed the suit by holding that the father of the appellants was displaced person and the appellants were not certificate-holders. The first appeal as well as second appeal filed by the vendees was dismissed.
The petition for leave to appeal by the vendees was also dismissed, by the Supreme Court on the basis of rule laid down in Manghta Khan's case and Saudagar's case. This view was followed in Fazal Ellahi v. Diwan Ali and others 1986 CLC 490.
16. Applying the rule laid down in Manghta Khan's case and Saudagar's case it was quite clear that the appellants are not the certificate-holders from the competent authority. They are, therefore, not entitled to the benefit under notifications noted above. I am, therefore, of the considered opinion that the sale in favour of the appellants is pre-emptible.
17. As regard the second contention it is sufficient to say that non-recording of formal order of appointment of guardian under Order XXXII, Rule 3 of C.P.C. Is mere irregularity and has no vitiative consequence on the proceedings unless and until it is shown that the interest of minors are prejudiced. This rule was laid down in Privy Council in 1903 Massammat Bibi Walian and Others v.
Banke Behari Pershad Singh and others (30 IA 1 x 2). In this case the point for consideration was whether the plaintiffs were properly represented in the suit and execution proceedings thereunder.
The learned subordinate Judge took the view that the factum of non-recording of formal order appointing the mother to be a guardian ad-litem of minor was merely an irregularity and had no vitiative effect on the proceedings in the absence of any prejudice caused to the minors. On appeal the High Court took the contrary view by holding that section 443 of the Code of Civil Procedure was mandatory in nature and the Court was bound to record the order of appointment of guardian ad-litem. On appeal the Privy Council did not agree with the High Court and took the view that any defect in passing the order of appointment of guardian ad-litem was mere an irregularity and did not invalidate the proceedings in absence of proof of prejudice to minors.
18. The view taken in 1903 Mussammat Bibi Walian and others v. Banke Behari Pershad Singh and others (30 IA 1 x 2) was followed in Syed Ahmad v. Prafulla Kumar De and others PLD 1961 Dacca
698. It was held:-- ' of appointing defendant No,8 as the guardian of the minors may, at best, be an irregularity in the facts and circumstances of the case, and the same is curable under section 99 of the Code of Civil Procedure."
19. This view was followed in Ahmad Khan and others v. Jaffary Abbas and others 1983 CLC 3043, wherein it was observed:-- ".... It is true that the learned trial Judge should have passed a formal order appointing respondent No,1 as the guardian ad-litem for respondent No,2, but his failure in this regard can in the circumstances of this case be regarded only a mere irregularity. It is common round that interests of respondent No,1 in the suit were identical with those of respondent No,2. In the plaint it was unequivocally stated that respondent No,2 was being sued through respondent No,1. This position was never repudiated by respondent No,1 and the fact that he filed a written statement on behalf of respondent No, 2 as well clearly indicates that he had accepted this assignment. He was the close male relative of respondent No,2 and the most appreciate person to look after his interests. It cannot, therefore, be said that the entire proceedings stand vitiated just because the trial Court failed to make a formal order appointing him as the guardian ad-litem for respondent No,2."
20. I am in respectful agreement with the rule laid down in the aforesaid proceedings. Applying this principle to the facts of the case it is clear that Amjad Hussain appellant in Regular Second Appeal No,93 of 1977 and Abdul Rashid and Arshad Mahmood in Regular Second Appeal No,115 of 1977 were sued through their mothers as next friend; the written statement was filed on their behalf. Their cases were effectively represented. The appeals on behalf of Amjad Hussain, Abdul Rashid and Arshad Mahmood were filed by their mothers. Amjad Hussain, Abdul Rashid and Arshad Mahmood are not certificate-holders. In the context of the aforesaid event I have no difficulty in reaching the conclusion that no prejudice was caused to the appellants on account of omission of passing of order of appointment of their guardian ad-litem.
' In the light of foregoing analysis, I find no merit in these appeals. The judgment and decrees passed by the Civil Judge and District Judge are not open to any exception. Resultantly these appeals fail and are hereby dismissed. The appellant shall bear the costs of proceedings throughout.