' TANVIR BASHIR ANSARI, J.--- This appeal has been remanded by the Hon'ble Supreme Court in terms of the order, dated 23-2-2001 passed in Civil Appeal No,514 of 1995. The vendees had originally filed the present appeal against the judgment and decree dated 11-6-1983 passed by the learned trial Court, through which, the suit filed by Moulvi Muhammad Bashir, predecessor-in- interest of the respondents to pre-empt the sale in suit has been decreed.
2. The facts are that the appellants purchased the suit-land through a sale-deed, dated 3-11-1977 for an ostensible sale consideration of Rs,3,85,000. Moulvi Muhammad Bashir, the predecessor-in interest of the respondents filed a suit for preemption on the ground of being owner in the estate and co-sharer in the Khata on the basis of Mutation No,60 dated 1-3-1957 and Mutation No,128 dated 6-11-1971. The Superior right of pre-emption was also claimed on the basis of adverse possession though prescription.
3. The defence of the appellants was that as the pre-emptor was claiming himself to be. The owner in the estate only on the ground of an oral sale, he could not claim any superior right of pre- emption as, the ownership was not acquired through a registered sale-deed as mandated by section 54 of the Transfer of Property Act, 1882 which applied with full force in the erstwhile Bahawalpur State. The learned Trial Court did not advert to the objection regarding section 54 of the said Act. It nevertheless, upon consideration of the documentary evidence on the record came to the conclusion that the plaintiff had matured his title through prescription under the said oral sale and thus, had superior right of pre-emption as co-owner in the estate. The learned trial Court resultantly, decreed the suit of the preemptor.
4. In the first round, the appeal was dismissed vide judgment and decree dated .27-2-1993. It was noticed therein that the sale in favour of the respondents was not made through a registered sale- deed. However, it was found that the respondent has matured his title through prescription, he could successfully exercise his superior right of preemption and in this respect, the findings of the learned trial Court did not suffer from any illegality.
5. The vendees challenged the above judgment before the Hon'ble Supreme Court where the appellants raised the following contentions:--
(a) that superior right of pre-emption could not be claimed in the area comprising of the erstwhile State of Bahawalpur on the basis of the ownership of land which has been purchased through oral sale unless the sale of such property is registered as required under section 54 of the Transfer of Property Act, 1882. And notification published in the Gazette of Bahawalpur, dated 28-5-1931; and
(3) that plea of acquiring ownership through adverse possessions could not clothe a pre-emptor with a superior right of pre-emption on the ground of being owner in the estate.
6. Before the Hon'ble Supreme Court, the respondents at the very outset conceded that they would not claim ownership through adverse possession of the property. It was, however, contended that the sale through mutation with a registered sale-deed in their favour as required under section 54 of the said Act created valid title in the respondents as section 54 of the said Act was not applicable in the Bahawalpur State at the time of mutation dated 6-11-1971.
7. The precise legal question that falls for determination is whether section 54 of the said Act applied to the erstwhile State of Bahawalpur when Mutation No,128 dated 6-11-1971 was attested in favour of the respondents.
8. Sh. Hakim Ali, learned counsel for the appellants contended htat section 54 of the Transfer of Property Act was applicable in the area of the former Bahawalpur State and that the oral sale evidenced through Mutation No,60, dated 1-3-1957 and Mutation No,128 dated 6-11-1971 was void. It is contended that Notification published in the Gazette of Bahawalpur dated 28-5-1931 extended section 54 of the Transfer of Property Act to the former Bahawalpur State. The promulgation of the Central Laws (Statute Reforms) Ordinance, 1960 (Central Ordinance XXI of 1960) did not have the effect of repealing the provisions of Transfer of Property Act already operative in the former Bahawalpur State. The learned counsel referred to section 4 (1) of Ordinance XXI of 1960 to elaborate that the previous laws operating in the State of Bahawalpur would stand repealed only if any of the Central Act or Ordinance mentioned in the Second Schedule is extended to the area concerned so as to take the place of the former State law. As in the matter of section 54 of the Transfer of Property Act which was already in force vide Notification, dated 28-5-1931 and no extension of any Central Act or Ordinance having been made, section 54 of the said Act as previously applied shall continue to be in the field. He further referred to Punjab Government's Notification, dated 7-12-1974 whereby sections 54 and 118 of the Transfer of Property Act, 1882 were made applicable to the Province of Punjab. By subsequent Notification dated 22-11-1978 sections 54, 59, 107, 118 and 123 of the Transfer of Property Act, 1882 were made applicable to the Municipalities of the Punjab and to all notified areas as declared/notified under section 241 of the Punjab Municipal Act, 1911. Referring to Notification dated 23-8-1979, the learned counsel further submitted that through this notification, the former Government of Bahawalpur State's Notification No,20, dated 28-5-1931 was cancelled. The crux of the is that Notification No,20, dated 28-5-1931 applied to the Bahawalpur State notwithstanding, the promulgation of the Central Ordinance XXI of 1960. Section 54 of the Transfer of Property Act was later applied by the Notification dated 17-12- 1974 and Notification darted 22-11-1978 to the rest of Punjab.
9. On the other hand, Mr. M.M. Bhatti, Advocate, learned counsel for the respondents contended that by virtue of the promulgation of the Central Laws (Statute Reform) Ordinance, 1960 (Central Ordinance XXI of 1960), all laws operative in the area of the former Bahawalpur State corresponding to the provisions of enactments mentioned in the Second Schedule to the Ordinance shall repealed w.e.f 14-10-1955. The Transfer of Property Act, 1882 is one such enactment mentioned in the Second Schedule.
He further contended that after such automatic repeal, the Transfer of Property Act has to be extended by a Notification in the official Gazettee and as the Notification in the official Gazette regarding this extension was not made on or before 6-11-1971, all transactions by means of oral sale were valid. He also contended that after the establishment of West Pakistan which included the former Bahawalpur State, it was only just and proper that there be uniformity of Laws in the newly established Province of West Pakistan.
10. We have heard the learned counsel for the parties and perused the record. In order to appreciate the correct intention of Law, various legal instruments and Statutes shall be chronologically analysed in the light of precedent available on the subject.
11. The Transfer of Property Act, 1882 was applied to the former Bahawalpur State vide Notification No,20, dated 28-5-1931 issued under section 1 of the said Act. This Notification was not existing law at the time of promulgation of the Establishment of West Pakistan Act, 1955 which was brought on the Statute Book of 3-10-1955. This Act provided that as from the appointed day i,e, 14-10-1955, the territory of Punjab, the Chief Commissioner Province of Balochistan and the Capital of the Federation, the Statutes of Bahawalpur and Khairpur and Balochistan State's Union and Tribal Area of Balochistan would be incorporated in the Province of West Pakistan w,e,f, 14-10-1955. Under section 10 of this Act, it was provided that these Laws which were in force in West Pakistan before the appointed day, were to continue to apply to areas and persons to whom they would have applied if the said Act had not been passed. This provision guaranteed the continuity of application of section 54 of Transfer of Property Act, 1882 upon the strength of the Notification of 28-5-1931 to the area of erstwhile Bahawalpur State.
12. On 9-6-1960, Central Laws (Statute Reform) Ordinance, 1960 was enacted. The purpose and object of this Ordinance was given in its Pre-amble which reads as under:-- "Whereas the incorporation of certain former Provinces, acceding States and Tribal Areas into the Province of West Pakistan by the Establishment of West Pakistan Act, 1955 has rendered it expedient that certain changes should be made in the laws and that certain laws should be extended to parts of the new Province to which they had not extended before and "Whereas it is expedient to remove from the Statute Book certain Acts and Ordinances which have become absolute or have discharged their function...."
It is important to observe that according to the Pre-amble, the paramount object of the Ordinance was to extend certain Laws to those parts of the new Province of West Pakistan to which they had not extended before .(under lining is ours). The natural corollary is that in the areas where the law already stood extended and operative, there was no necessity of extension of any corresponding law.
13. According to section 3(1) of Ordinance XXI of 1960, the Central Acts and Ordinance specified in the Second Schedule.To the said Ordinance shall extend to the whole of Pakistan and, shall be amended in the manner indicated in the fourth column thereof. Through the Central Laws (Statutes Reforms) (Amendment) Ordinance, 1961, section 3 of the original Ordinance, XXI of 1960 was amended so as to make applicable also all rules, regulations, notifications and orders made or issued under the said Laws to the territory of West Pakistan. It is common ground between the parties that Government of Bahawalpur State's Notification No,20 dated 28-5-1931 had extended section 54 ofTransfer of Property Act to the area of erstwhile State of Bahawalpur. This Notification continued to remain in force and fully operative even upon the promulgation of the Ordinance XXI of 1960. As the field was already covered under this Notification of 28-5-1931 as regards applicability of section 54 of the said Act, there was no question of extending similar or corresponding laws in the State of Bahawalpur. Thus, despite the fact that the application for the Transfer of Property Act was postponed to the while or any part of West Pakistan and the Capital of the Federation till its extension through a Notification in the official Gazettee, the position regarding the former Bahawalpur State was different as the Notification of 28-5-1931 was already in the field.
14. At this juncture, it is important to refer the provisions of section 4(1) of Ordinance XII of 1960 which is reproduced as under:-- "S.4. Reveal and re-enactment of certain laws in force in certain Acceding States before their incorporation into West Pakistan.---(l) Subject always to the provisions of subsection (2) of section 3 where the operation of any Central Act or Ordinance has been extended by an amendment indicated in the second Schedule of any area which, before the fourteenth day of October, 1955 formed ,part of the territories of any Acceding State, any laws in force in that area before that date and corresponding to the provisions of such Act or Ordinance shall stand repealed, and shall be deemed to have been re-enacted by such Act or Ordinance, as amended by this Ordinance, as if sikch law where a Central Act, and the provisions of the General Clauses Act, 1897 (X of 1897) shall apply accordingly."
15. From the examination of this section, it would be -manifest that it is only where any Central Act or Ordinance is extended by an amendment indicated in Second Schedule that any law in force in that area before that date and corresponding to such Act or Ordinance shall stand repealed.
Accordingly to the first amendment of Transfer of Property Act, 1882 con' aimed in Second Schedule to the Ordinance XXI of 1960, the Transfer of Property Act had not been applied, there was no occasion for repeal of the Government of Bahawalpur State's Notification No,20, dated 28-5-1931.
16. Here it may also be mentioned that it was by virtue of Notification .Dated 17-12-1974 and Notification No .3097/8/ 1511-L.R.I., dated 22-11-1978 that in exercise of powers conferred by Transfer of Property Act, 1882, the Governor of the Punjab extended the provisions of sections 54, 59, 107, 118 and 123 of the said Act to all the Municipalities in the Punjab and to all notified areas as declared notified under section 241 of the Punjab Municipal Act, 1911. It is also worthy of note that the Government of Bahawalpur State's Notification No,20, dated 28-5-1931 continued to hold that field till its cancellation vide Notification N o .79-1/70/L. R . I . Dated 23-8-1979. We are convinced that if the Ordinance XXI of 1960 had the effect of repealing this Notification, as contended by the learned counsel for the respondents, there was obviously no necessity for issuing the Notification dated, 23rd of August, 1979 specifically to cancel the above said Bahawalpur State's Notification No,20.
17. This legal proposition has been created in a number of formidable judgments.
' Reliance is first of all placed on the case of Jangi v. Jhanda and others PLD 1961 B.J. 34, His Lordship Shabbir Ahmad, J. Who authored this judgment observed as under:-- "As section 54 of the Transfer of Property Act has not been complied with, the sale in favour of the plaintiff on which reliance was placed cannot be considered by Court to have been made as the sale was not admitted by parties to the suit except the one in whose favour it was made."
' In the case of Haji Noor Muhammad v. Ghulam Masih Gill PLD 1965 (W.P.) B.J. 1, the entire genesis of the Ordinance XXI of 1960 along with its objects and purposes, its applicability and its effect upon the existing laws was examined in great detail by His Lordship .,Anwar-ul-Haq, J. On the effect of section 4(1) of the Ordinance XXI of 1960 upon the Government of Bahawalpur State's Notification No,20, it was observed thus, by His Lordship; "I have already observed that the effect of the amendment indicated in the Second Schedule to the Ordinance under heading the Transfer of Property Act is that this Act has not been extended to the whole or any part of West Pakistan. Such being the case the consequences of the extension of a Central Act or Ordinance as mentioned in subsection (1) of section 4 of the Ordinance, do not ensue in the present case i,e, the law corresponding to the Transfer of Property Act previously operating in the Bahawalpur area does not stand repealed."
' In the case of Muhammad Bakhsh v. Zia Ullah and others PLD 1971 BJ 42 passed by learned Division'
Bench of this Court, His Lordship Anwar-ul-Haq, C.J., the learned author of the judgment observed as follows:-- "Observations cited above do not appear to us to be an authority for the proposition that the vendee under an unregistered sale can be recorded as a co-sharer within the meaning of section 15 of the Punjab Pre-emption Act."
' The learned Division Bench therein agreed with the view taken by the Division Bench in Jangi's case (supra).
' The said Muhammad Bakhsh preferred an appeal before the Hon'ble Supreme Court and the Hon'ble Supreme Court in the case of Muhammad Bakhsh v. Zia Ullah and others 1983 SCM R 988 endorsed the view of the learned Division Bench of this Court. It was held that "transaction of sale not satisfying requirement of section 54 of the Transfer of Property Act, 1882 does not confer any right or interest on the plaintiff/pre-emptor such as could be made basis for claiming either ownership or co-sharersh".
' In the case of Muhammad Khan and another v. Fazal Muhammad and another 1994 SCM R 281, it was held that as section 54 of the Transfer of Property Act, 1882 was applicable on the date when mutation was effected on the basis of oral transaction, such a transaction was not valid. His Lordship of Eral transaction Saeed-uz-Zaman Siddiqui, J., who authored this judgment observed as under:-- "On the date when the mutation was effected in favour of the petitioners on the basis of the alleged oral exchange transaction, the Notification dated 17-12-1974 held the field and as such the transaction was void in the absence of a registered document."
' In the case of Muhammad Fazal v. Kaura 1999 SCM R 1870 it was held that as section 54 of the Transfer of Property Act was applicable, the share in Khata acquired by means of sale otherwise than by registered deed would not confer any right or title to pre-empt the suit-land.
18. After going through the above case law, we are in respectful agreement with views held by their Lordships in the abovementioned precedent cases and hold that section 54 of Transfer of Property Act applied to the former Bahawalpur State w,e,f, 28-5-1931 and thereafter, section 54 of Transfer of Property Act continues to apply by the force of Notification dated 17-12-1974 and 22-11-1978. In view of the above, the sale in question which was made through Mutation No,128, dated 6-11-1971 did not create any title in the respondents as an owner in the estate and as such did not vest any superior right of pre-emption in the respondents.
19. It is also important to observe that the learned trial Court as well as this Court in its earlier judgment dated 27-2-1993 had not validated the oral sale dated 6-11-1971. The learned trial Court had passed the decree which was upheld by the earlier judgment of this Court only on the ground that the respondents had been able to show ownership in the estate on account of prescription.
Before the Hon'ble Supreme Court, the learned counsel appearing for the respondents had candidly conceded that he would not claim ownership through .Adverse possession or prescription.
20. That being the case, it is concluded that the respondents have neither proved superior right of pre-emption on the basis of any valid sale nor have they any case on the basis of adverse possession which in any event has been consciously given up before the Hon'ble Supreme Court.
As a result, the appeal is allowed and the judgment and decree dated 11-6-1983 of the learned trial Court are set aside. The parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.