Briefly the facts are that land measuring 87 Kanals, one Marla situate in Budhal, Tehsil Kahuta was sold by Manga Khan, Inayat Hussain, Walayat Hussain, Muhammad Khan and D.1 Muhammad vendors in favour of Lal Khan, Lal Hussain and Talib Hussain through registered sale --deed dated 4-10-1976 for a sale consideration of Rs.1,90,000. Ghulam Rasool respondent filed a suit for pre- emption on 30-10-1977. The superior right of pre-emption was claimed on the basis of being owner of the estate.
2. The suit was contested by the appellants on the grounds that the land was exempt from pre- emption as the appellants/defendants were Mangla Dam affectees and that they are protected by Notification dated 20-1-1977 issued in this behalf. The superior right of pre-emption was controverted on the ground that the plaintiffs/respondents were not the owners of the estate as they had raised construction upon the land which was, in fact, purchased for Sikni purpose and had ceased to be agricultural land.
3. From the divergent pleadings of the parties, the following issues were framed:-- ISSUES (1)Whether the plaintiff has got superior right of pre-emption? OPP.
(2)Whether the plaintiff is estopped by his own conduct to file this suit? OPD.
(3)Whether the suit is barred by time? OPD.
(4)Whether the suit is not maintainable in view of preliminary Objection No.4? OPD.
(5)Whether the ostensible sale price of Rs.1,90,000 was fixed in good faith or actually paid? OPD.
(6)If the above issue is not proved then what was the market value of the suit-- land at the time of its sale? OP-Parties.
(7)Whether the suit has been wrongly valued for the purposes of court-fee and jurisdiction? If so, its effect and what is the correct valuation? OPD.
(8)Whether the plaintiff has deposited Zar-e-Panjam within time? OPD.
(9)Relief.
4. In order to support his contentions, the respondent/plaintiff produced Muhammad Hussain, Naib-Tehsildar as P.W.1. In documentary evidence, the respondent produced copies of Jamabandi for the year 1972-73 as Exh.P.1 and Exh.P.2, copy of Misal-e-Haqiat for the year 1955-56 as Exh.P.3, copy of Jamabandi for the year 1975-76 as Exh.P.4 and copy of Jhar Pedawar as Exh. P.5.
On the other hand, the appellants/ defendants produced Shaukat Iqbal as D.W.1, Muhammad Banaras their general attorney as D.W.2 Lal Hussain defendant appellant as his own witness as D.W.3. In documentary evidence, the defendants produced general power-of-attorney, as Exh.D.1 certificates as Exh.D.2 to Exh.D.4 and copy of Jamabandi for the year 1984-85 as Exh.D.5.
5. After appreciating the aforesaid evidence, the learned trial Court decreed the suit vide judgment and decree dated 11-3-1980. Issue No.1, as regards to the superior right of pre-emption was decided in favour of the plaintiff/respondent on the ground that despite the construction raised upon a portion of his land in the estate, the plaintiff still held some land in the estate which continued to enjoy the status of agricultural land. The trial Court found on. Issue No.4 that the appellants/defendants could not derive any benefit as Mangla Dam affectees as the said notification protected only those properties the value of which did not exceed Rs.10,000. Upon the Issue No.7 regarding court-fee it was held that although the deficiency of court-fee was made up by the plaintiff/respondent after the period allowed to him in that behalf as no conscious order was passed by the Court thereafter, it will be deemed that the time had been impliedly extended.
6. The appellant preferred an appeal against the aforesaid judgment and decree of the trial Court.
The said appeal was accepted on 5-5-1983 upon the statements of the learned counsel for both the parties and the case was remanded for decision afresh of the issues after providing opportunity to lead evidence to the parties.
7. In post-remand proceedings, the suit was dismissed vide judgment and decree dated 27-1-1987 mainly on the basis of case of Said Kamal Shah PLD 1986 SC 360. It was held that in accordance with the principle laid down in the said case, the plaintiff/respondent even if found to be an owner in the estate shall not be entitled to a superior right of pre-emption as this ground had been held to be un Islamic. Upon Issue No.4 the learned trial Court repeated the earlier finding of the learned Civil Judge in verbatim. The question of court-fee was resolved by holding that according to Naqsha Jhar Paidawar Exh.P.5 the requisite court-fee had been paid. The decree of the trial Court dated 27-1-1987 was assailed in the first appeal by the plaintiff. The appellants/ defendants also filed cross-objections. The learned Appellate Court relied upon Exh.P.2 which is copy of the Jamabandi for the year 1972-73 and found that the plaintiff was an owner in the estate while the appellants/ defendants did not enjoy such qualification before sale in question. It was also held that as per law laid down in Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287, the suit remained unaffected by the dictum laid down in Said Kamal Shah's case. On Issue No.4, the learned Appellate Court found that the notification and/or, the certificates issued in favour of the appellants as Mangla Dam affectees did not have the effect of exempting the suit-land from pre-- emption as the land sold was admittedly in --excess of the value of Rs.10,000. Resultantly, vide judgment and decree dated 15-1-1989 the appeal was accepted and a decree for pre--emption was passed in favour of the respondent subject to the deposit of Rs.1,90,000 if not already deposited. The cross-objections of the appellants were dismissed as being time-barred.
8. The regular second appeal in hand was filed in 1989. The same was dismissed vide judgment dated 22-2-2001 and the decree of the learned First Appellate Court was maintained. The appellants further challenged the said judgment through C. P. No. 1430 of 2001. Vide judgment dated 2-5-2002 passed by the Honourable Supreme Court, the petition was converted into appeal and accepted and the judgment dated 22-2-2001 of this Court was set aside and the case was remanded for the disposal of the appeal on merits. While accepting the appeal, the Honourable Supreme Court was persuaded to hold that the questions whether the appellants/defendants were exempted, from the right of pre-emption and also whether the pre--emptor/respondent having altered the nature of the suit-land could still claim superior right of pre-emption were to be decided afresh.
9. After remand from the Honourable Supreme Court Syed Qalb-e-Hasan, Advocate for respondent frankly stated that he shall have no objection to the formal proof of the notification dated 20-1-1977 and the certificates Exh.D.2, Exh.D.3 and Exh.D.4. The legal effect of these documents shall thus be appreciated in accordance with their intrinsic value.
10. In support of this appeal Mr. Mujeeb-ur-Rehman's Kiani, Advocate has raised the following contentions: -- (i)It is contended that under notification dated 20-1-1977 issued by the Board of Revenue, Punjab and certificates issued by the Commissioner, Mangla Dam Affairs A.J.K. Mirpur, Exh.D.2 to Exh.D.4 had the effect of exempting suit-land from being subjected to a right of pre-emption. It is submitted that although both the learned lower Courts have held that the appellants were covered under certificates, yet the exemption was not granted on the ground that the value of the property in question exceeds Rs.10,000. While doing so, the consideration contained in the earlier part of the notification that the sales made in respect of the land which was less than 12-1/2 acres of irrigated land and 50 acres of unirrigated land were exempt from pre-emption was ignored.
(ii)The plaintiff/respondent had purchased a small portion of land specifically for the purpose of construction. The plaintiff has already constructed a house on 4 Marlas in Khasra No.435 Min of the said land. He referred to Exh.D.5 according to which Ghulam Rasool plaintiff and his brothers were shown to have raised construction on Khasra No.435 Min on an area of 4 Kanals, 15 Marlas. It was contended that in this view of the matter, the plaintiff had ceased to be the owner of the estate. He contended that in the entire round of previous litigation, the plaintiff has not succeeded in differentiating between the "owner of the estate" and "owner in the estate". According to the learned counsel a person who purchases Sikni land cannot claim the status of an "owner of the estate" although by owning the Sikni land on which he has raised construction he may be termed as an owner in the estate. He referred to section 15 of the Punjab Pre-emption Act, 1913 to submit that it is only an "owner of the estate" who can claim to have a superior right of pre-emption.
11. In support of his contention, the learned counsel for the appellant has placed reliance upon the rule laid down in the following cases: -- (i)Salehon Muhammad and another v. Shera and others 1977 SCMR 297.
(ii)Faiz Bakhsh and others v. Malik Allah Bakhsh 1994 SCMR 1168.
(i.e)Ghulam Hussain Arshad and others v. Allah Ditta and others 1993 SCMR 1486.
(iv)Abdul Rashid and others v. Khurshid Ahmad and others PLD 1989 SC 373(2).
12. Conversely, Syed Qalb-e-Hasan, Advocate for the respondent has strongly controverted the contentions of the appellants on both the counts. He submitted that the appellants were not entitled to any protection either under notification dated 20-1-1977 or under the certificates produced as Exh.D.2 to Exh.D.4. It is submitted that the protection under the aforementioned notification can only be claimed by a person who has been displaced on account of the construction of Mangla Dam. Referring to the certificates Exh.D.2, Exh.D.3 and Exh.D.4 he contended that the format of the certificate contemplated two different categories of persons namely one who is affected and the one who is displaced. In the relevant portion of the certificate, the word "displaced" has been consciously scored out by the Commissioner concerned and this being the position, the appellants cannot claim themselves to be a person displaced on account of construction of Mangla Dam as contemplated in the notification of 20-1-1977.
13. The learned counsel has relied upon the following cases in support of his contention:-- (i)Rehmat Khan v Muhammad Rafiq 1984 CLC 371.
(ii)Jehandad Khan v. Chanan Khan and 9 others PLD 1983 Peshawar 84.
(i.e)Liaquat Ali and 7 others v. Khawaj Muhammad and 2 others PLD 1988 Peshawar 149.
(iv)Raj Wali v. Choudhary Abdul Rasheed PLD 1981 Azad J&K 79.
(v)Ghulam Rabbani v. Maqbool Khan PLD 1971 Azad J&K 68.
14. He next contended that even if it is found that construction has been raised on Khasra No.435, it would not affect the superior right of pre-emption of the respondent as he was also owner of the land in Khasra No. 442.
15. Arguments have been heard and record perused.
16. The notification in question is reproduced as under:-- BOARD OF REVENUE, PUNJAB NOTIFICATIONThe 20th January, 1977.
No. 8776-76/IIO-IR.III.---In exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre--emption Act, 1913 (Punjab Act I of 1913), the Board of Revenue, Punjab in continuation of its Notification No.2131-76/1003-IR.III, dated 7th January, 1976, is pleased to declare that in the whole of the Punjab Province no right of pre-emption shall exist for a period of two years with respect to the sale of agricultural land not exceeding 12-1/2 acres of canal irrigated area or 50 acres of unirrigated area and other immovable property not exceeding the market value of Rs.10,000 (rupees ten thousand only), in favour of a person displaced on account 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 affect any decree passed in favour of the pre- emptors prior to the date of its publications.
Certificates Exh.D.2 to Exh.D.4 have been issued in favour of the appellants. In the said certificates, besides holding the appellants as affectee persons, it has been specifically mentioned that "his agricultural land situated in the same village has been acquired under Pakistan Land Acquisition Act for the construction of Mangla Dam Reservoir". Reference has been made in the certificates to the Notification dated 20-1--1977 which exempts the Mangla Dam Displaced Persons from the operation of the Pre-emption Act.
17. In order to resolve the controversy, a correct interpretation of the term "displaced" in the phrase "person displaced on account of the construction of the Mangla Dam and certified to be so displaced" has to be correctly interpreted.
18. On construction of Mangla Dam, hundreds of thousands of inhabitants of the area were affected to a smaller or larger extent. Almost one lac persons had to leave their permanent abode. The Government arranged lands in Punjab and Sindh for rehabilitation of the affectees and persons displaced. It is common knowledge that despite that, many of the Mangla Dam affectees and persons displaced chose to live within Azad Kashmir out of the sentiments and affection of their own culture, society and land. The alienation affected in favour of such persons were pre-empted in a large number of cases. To protect the interest of Mangla Dam affected and persons so displaced, the first notification was issued on 15-10-1964. The terms used to describe such protected persons in the said notification is as under:-- "A displaced person affected by the construction of Mangla Dam, certified to be so affected by the Commissioner, Mangla Dam Affairs."
19. This notification was followed by the subsequent notifications. The corresponding notification issued by the Board of Revenue, Punjab is dated 20-1-1977 which has been reproduced as hereinabove. One of the earlier cases decided in this context is the judgment rendered in the case of Ghulam Rabbani v. Maqbool Khan (supra). The yardstick to determine whether or not a person can claim himself to be a person displaced and so affected on account of the construction of Mangla Dam has been aptly related by their Lordships of the High Court of A.J.K. In the following terms:-- Now coming to the interpretation of the term 'displaced person' it appears that the notification was unhappily perhaps hastily drafted because the words of the notification 'in favour of a displaced person affected by the construction of Mangla Dam' would mean that the person seeking the benefit of this notification must not only be a displaced person but must also be one affected by the construction of Mangla Dam. It looks absurd because while every person affected by the construction of Mangla Dam may not be a displaced person so as to benefit from the notification but there is no doubt at all that every person displaced by Mangla Dam is an affected person for that purpose. However, it is clear that the Government did not want to give the benefit of this notification to all affected persons but only to those amongst them who were also displaced; otherwise almost every one living in the district could rightly claim that he too was affected by the construction of Mangla Dam say for instance because the road he had been using had been submerged or the distance that stood between him and his place of business or interest had been enlarged so on and so forth."
20. It would thus be clear that a clog upon the right of pre-emption was placed upon the sales made in favour of those persons who were so badly affected by the construction of Mangla Dam which would amount to their displacement from their ordinary place of abode which shall include their ordinary nature of avocation and means of livelihood. Of course as noted in the case of Ghulam Rabbani supra, trivial and trifling effect of the Mangla Dam construction might have been felt by almost all the residents of the area, the benefit of notifications was not to be extended to such persons.
21. For a correct interpretation of the term "Person displaced on account of the construction of Mangla Dam, the connotation of the word "displaced" has to be understood in the particular context in which it has been used in the notification. According to Webster's International Dictionary "displaced" has been defined as under:-- "To change the place of, to remove from usual or proper place, to put out of place, to take place of, to crowd out to remove from State, office, dignity or the like, to dislodge, to drive away banish."
22. In the Shorter Oxford Dictionary, it has been defined as under:-- "to shift from its place, to be out of its proper or usual place, to remove from a position, dignity or office to oust from a place and occupy it instead."
23. The Reader's Digest Dictionary defines 'displaced' as:-- "shift from its place, remove from office, oust, take the place of replace."
24. It is pertinent to note that all the above definitions of the term "displaced" are used in a broader rather than a restricted sense. A person can be displaced in a myriad of situations which may broadly fall under one or the other meanings ascribed to this word in the various definitions given above.
25. In one such context, the case of a' person whose entire or substantial holding-has been acquired for the purpose of construction of Mangla Dam must fall under the category of person displaced on account of the construction of Mangla Dam. It shall be inconsequential if such person continues to reside at his former place of residence if his main means of livelihood have been taken away on account of acquisition of land for the purposes of the said construction.
26. I find support for this view from the observation made by their Lordships Saad Saud Jan and Akhtar Hasan, JJ. In the case of Rehmat Khan v. Muhammad Rafique (supra) which is reproduced below:-- "Besides the extent and nature of land taken away for the construction of reservoirs was so small or insignificant that the Commissioner found it difficult to describe them as displaced persons. "
27. It follows from the above that it is only a person who is still holding bulk on his land in the area who cannot be termed as a displaced person. In the present case it has not been indicated through any material on the record that the appellants were not wholly or substantially deprived of their lands by way of acquisition.
28. While, interpreting the term "person displaced on account of the construction of Mangla Dam and certified to be so displaced", it shall be unnecessary to refer to the meaning given to the term "displaced person" in different statutes which deal with this term in their special and limited context which is germane only to the said Statutes. For example, the definition of this term as given in section 2(6) of the Administration of Evacuee Property Act, 1957 or that given in section 2(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 or as defined in section 2(10) of the Displaced Persons (Debt Adjustment) Act, 1951 and in section 2(d) of the Rehabilitation Finance Administration Act of 1948 cannot be used to amplify or explain the meanings of the term which is presented for interpretation in an entirely different context as the present case.
29. The appellants have placed on the record the certificates issued by the Commissioner, Mangla Dam Affairs, Mirpur which demonstrate that the appellants have been affected by the construction of the Mangla Dam Project as their agricultural land situated in the village has been acquired for the construction of the Mangla Dam Reservoir. The certificates have been issued in the context for exemption of the persons displaced from the operation of the Pre--emption Act. There being no evidence in rebuttal that the appellants continued to hold land in bulk or otherwise in the area affected by the Mangla Dam Project the appellants would fall under that category of persons who have been expelled or removed from their habitual place of residence as they have been deprived of their source of livelihood. This view is inconsonance with one held in Ghulam Rabbani's case supra.
30. This shall also take us to the correct import of the term Habitual Residence and also the term Being Uprooted from the Habitual Abode. In my view Residence includes all that a man undertakes to provide himself with the amenities of a qualitative life and protect himself from the vagaries of nature.
31. In view of the foregoing it is concluded that the appellants have been able to prove that they are persons displaced on account of the construction of Mangla Dam. It is idle for the plaintiff/respondent to contend that crossing out of the word 'displaced' would make any difference whatsoever when the controversy is seen in the light of the discussion hereinbefore made. In the case of Rehmat Khan v. Muhammad Rafiq supra the Commissioner while crossing out the word "displaced" and retaining the word "affected" in the certificate was conscious of the fact that the affected person was still holding bulk of his land in the area concerned. No such situation is indicated in the case in hand.
32. The appellants have thus, proved that they are covered under notification dated 20-1-1977 in respect of which the necessary certificates Exh.D.2 to Exh.D.4 have been issued. The sale in their favour is thus found to be exempted from the incident of exercise of right of pre-emption by the respondent.
33. The appellants have also seriously contested the superior right of pre-emption claimed by the respondent/plaintiff. The respondent claimed in his plaint that he was co-sharer in the Khata and was also Malik Deh. It is an admitted position that the respondent has not been able to show that he was a co-sharer in the Khata concerned. He has, however, placed reliance upon the Jamabandi .For the year 1972-73 (Exh.P.2) and stated that the plaintiff was a co-sharer in two Khasra numbers i.e. Khasra No.442 and Khasra No.435. According to him even. If construction was raised on a portion of Khasra No.435, as he was also an owner in Khasra No.442 he would enjoy the status of Malik Deh in the estate.
34. It has been urged on behalf of the appellants that under section 15(c), thirdly of the Punjab Pre- emption Act, 1913, the plaintiff could not be treated to be an owner of the estate. It is submitted that according to Exh.D.5 the plaintiff had purchased a small plot for residential purpose which was unassessed to land revenue and was uncultivated and that this ownership could not be regarded as one contemplated under section 15-C, thirdly referred to above.
35. There is force in the submissions or the learned counsel for the appellants.
36. Section 15(c), thirdly provides that the right of pre-emption in respect of, agricultural land and village immovable property shall vest in the "owners of the estate". According to D.W.3, Khasra No.435 comprised of 4 Kanals, 15 Marlas and that the entire Khasra number was constructed upon.
He has stated that the said land is not agricultural in nature. He is supported in his deposition by Exh.D.5. None of the learned lower Courts in any round of litigation between the parties attempted to interpret the term "owner of the estate" as distinct from the words "owner in the estate".
37. The object of the Pre-emption Act is to exclude non-proprietors from entering the proprietary body of an estate. ,Owners or houses in village "Abadi" are not held to be "owners of the estate" although they might be termed as "owners in the estate".
38. This distinction has been clearly made in the case of Salehon Muhammad and another v. Shera and others 1977 SCMR 297. The rule of law laid down therein is that owners of houses in village could not claim to be owners of the estate. In the words of their Lordships of the Supreme Court, "owner of the estate" is not synonymous with the words "owner in the estate" and that this distinction is in accord that the administration of Revenue law in the Punjab and the spirit of the Pre-emption Act. Further reiteration of this principle is found in the case of Faiz Bux and others v.
Malik Allah Bux 1994 SCMR 1168. It was held therein that a person who purchases Sikni land for construction purposes could not attain the status of "owner of the estate" so as to claim a superior right of pre-emption unto himself. Further, land recorded as Ghair Mumkin Makan in the Jamabandi or mutation as in the present case could not give the required status to the owner to claim the superior right of the pre--emption.
39. The upshot of the above discussion is that this regular second appeal is accepted and the judgment and decree dated 15-1-1989 is set aside with the result that the suit for pre--emption of the plaintiff/respondent shall stand dismissed. Parties to bear their own costs.