JUDGMENT TANVIR BASHIR ANSARI, J.-- Muhammad Boota predecessor-in-interest of Haji Muhammad Anwar and others appellants filed a suit for pre-emption in respect of sale of suit land measuring 441 kanals, 14 marlas made by Abdul Ghani in favour of respondents through mutation No. 603, dated 18.1.1969. The suit was contested by respondents/vendees. It was contended that the suit for pre-emption was barred under Section 23 of the Punjab Pre-emption Act, 1913. The superior right of pre-emption was also denied. The pleadings of the parties led to the framing of following issues:- ISSUES:-
(1) Whether the plaintiff has the superior pre-emptive right qua the defendants/vendees? OPP
(2) Whether disputed property is the part of the compensation pool and this Court has no jurisdiction to try this suit? OPD
(3) Whether the sale under pre-emption cannot be preempted in view of the preliminary objection No. 1 contained in the written statement? OPD
(4) Whether a sum of Rs. 127424.00 was fixed in good faith or actually paid as the sale price Of the suit land? OPD
(5) if issue No. 4 is not proved, what was the value of the suit land at the relevant time of its sale?
OP Parties.
(6) Relief.
2. After recording evidence the learned Trial Court decreed the suit in favour of the predecessor-in- interest of the appellants vide judgment and decree dated 24.6.1974.
3. The respondents/vendees filed an appeal against the said judgment and decree which was accepted by the learned District Judge, Rahimyar Khan vide judgment - dated 30.10.1988 through which the decree of the Trial Court was set aside and the suit of the appellants was dismissed.
4. It is worth mentioning at this stage that only issue No. 3 was agitated by the vendees/respondents before the first Appellate Court and it was upon the findings on the said issue which resulted in the acceptance of the appeal of the vendees.
5. In this Regular Second Appeal, the judgment and decree dated 30.10.1988 passed by the learned District Judge, Rahim Yar Khan has been assailed on the following grounds:-
(i) that it was proved on the record that the vendees/respondents were residents of Rahimyar Khan District, therefore, Section 23 of the Punjab Pre-emption Act, 1913 was not a bar to the suit for pre-emption.
(ii) that the vendees/respondents have been showing themselves as a residents of Mouza Sadiqpur and were estopped to take a different stand.
(i.e) that the learned first Appellate Court misread and/or ignored the evidence on the record on issue No. 3.
6. Choudhary Abdus Sattar, Advocate appeared on behalf of the appellants while Mr. M.M. Bhatti, Advocate represented the respondents.
7. Arguments have been heard and record perused.
8. The sale question that was agitated by the vendees/respondents before the first Appellate Court was that the sale through mutation No. 603, dated 18.10.1969 was made in favour of a large number of vendees who are presently shown as respondents Nos. 1 to 35 In the Regular Second Appeal.
Their contention before the first Appellate Court was that the vendees were residents of District Faisalabad (formerly District Layallpur) and that they were .... Muhammad Anwar V. Muhammad Boota Rev.C. 143 (Tanvir Bashir Ansari, J.) neither residents nor on any land in the Districts of Rahim Yar Khan, Bahawalpur and Bahawalnagar and as such were not members of the same agricultural tribe to which the vendor of the suit land belonged. The precise argument was that in such a situation the sale through mutation No. 603, dated 18.10.1969 was in violation of Section 3, sub-section (2) of, the Punjab Alienation of Land Act, 1900. Further that under Section 23 of the Punjab Pre-emption Act, 1913 no decree shall be granted in a suit for pre-emption in respect of the sale of the agricultural land, as the said sale was in contravention of the Punjab Alienation of the Land Act, 1900.
9. The leaned first Appellate Court considered the evidence produced before it and came to the conclusion that the vendees did not on any land nor were they residents of Bahawalpur, Rahimyar Khan or Bahawalnagar District at the time of sale. The first Appellate Court found that in these circumstances, the vendees cannot be deemed to be a group of agricultural tribe within the meaning of the notification dated 29th September, 1958, wherein, only those persons were deemed to be a group of agricultural tribe who were originally residing in or were owners of land in Districts of Bahawalpur, Bahawalnagar or Rahimyar Khan. Holding that the suit for pre-emption was hit by Section 23 of the Punjab Pre-emption Act, 1913, the appeal of the vendees was accepted.
10. The main contention raised by the learned counsel for the appellant is that the residence of the vendees and/or the factum of their owning the land in the three Districts mentioned above has been proved or admitted through documents on the record, It is contended that in the mutation of sale itself the vendees have shown themselves to be " " which according to the appellants was a clear admission by the respondents of their residence in the relevant District, It was further contended that in the power-of- ttorney executed by the vendees on 29.11.1971 they have een shown to be residents of Mouza Sadiqpur Tehsil and ' District Rahimyar Khan. It is further submitted that even in " " filed by the vendees alongwith their written statement they have mentioned their residence in District Rahimyar Khan. In the memo, of Regular Second Appeal a number of Jamabandies have been mentioned to prove that many of the vendees are owners of land in Rahimyar Khan. The learned counsel for the appellant further placed reliance upon the statement of DW-3 (Sardar Muhammad) to submit that even this vendee has admitted the residence in Rahim Yar Khan.
11. The learned counsel for the appellant has also submitted an application under Order 41, Rule 27, CPC for permission to produce additional evidence.* The documents sought to be produced are various copies of Jamabandies relating to the years (963-64, 1967-68-and 1968-69, to show the ownership of the vendees in Tehsil and District Rahim Yar Khan.
12. The learned counsel for the respondent on the other hand, submitted that the vendees were residents of Faisalabad prior to the impugned sale in their favour. In this connection reference was made to voters list of District Lyallpur, Faisalabad, wherein the names of some of the vendees were mentioned, It was further submitted that mere mention of residence in mutation No. 603 was not sufficient to prove the fact that the vendees were ordinarily residents of the said mouza in the absence of any other independent and corroborative evidence.
The learned counsel for the respondents challenged the competency of the application for permission to produce additional evidence. He submitted that no ground has been made out while such application was not moved before the Trial Court or even the first Appellate Court when the objection under Section 2Z of the Punjab Pre-emption Act, 1913 was promptly taken in written statement. Controversy the stand of the appellant regarding entry in the " ", he stated that the " W " can b< * treated at best, as part of the pleadings and cannot be [Vol.XXII 1 Muhammad-Anwar V. Muhammad Boota Rev.C. 145 (Tanvir Bashir Ansari, J.) substituted for evidence. It was further contended that even if all the documents mentioned in the application for additional evidence are to be considered, yet only a few vendees/respondents would be shown to be residents of Rahim Yar Khan. In that event, it was further stated, the suit would be hit by principle of partial pre-emption.
13. In order to appreciate, the respective contentions of both the parties, it is necessary to reproduce Section 23 of the Punjab Pre-emption Act, 1913: Section 23:- "Special conditions relating to sales of agricultural land. No decree shall be granted in a suit for preemption in respect of the sale of agricultural land until the plaintiff has satisfied the Court. -
(a) that the sale in respect of which pre-emption is claimed is not in contravention of the Punjab Alienation of Land Act, 1900; and
(b) that he is not debarred by the provisions of Section 14 of this Act from exercising the right of pre-emption."
Section 24:- "Procedure on determination of the said issues.-\n a suit for pre-emption in respect of a sale of agricultural land, if the Court finds that the sale is in contravention of the Punjab Alienation of Land Act, 1900, Court shall dismiss the suit."
14. It is also appropriate to reproduce Section 3 of the Punjab Alienation of Land Act, 1900:- Section 3:- "Sanction of Deputy Commissioner required to certain permanent alienations.-- (1) Save as hereinafter provided a person who desires to make a permanent alienation of his land shall be at liberty to make such alienation where:-
(a) the alienor is not a member of an agricultural tribe; or
(b) the alienor is a member of an agricultural tribe and the alienee is a member of the same tribe or of a tribe in the same group.
(2) Except in the cases provided for in sub-section (i) a permanent alienation of land shall not take effect as such unless and until sanction is given thereto by a Deputy Commissioner: Provided that--
(1) Sanction may be given after the act of alienation is otherwise completed, and
(2) Sanction shall not be necessary in the case of:-
(b) a gift made in good faith for a religious or charitable purpose, whether inter vivos or by will.
(3) The Deputy Commissioner shall inquire into the circumstances, of the alienation and shall have discretion to grant or refuse the sanction required, by sub-section (2).
15. A cumulative effect of these provisions of law is that no decree in a suit for pre-emption can be granted in respect of a sale which is in contravention of the Punjab Alienation of Land Act, 1900. If the Court finds that the sale is incontravention of the Punjab Alienation of Land Act, 1900, the Court shall dismiss the suit.
16. According to Section 3 of the Punjab Alienation of Land Act, 1900, if the vendor and the vendee were Members of the sale agricultural tribe no sanction of the Deputy Commissioner for the validity of the sale shall be required which is mandatory for sales not covered by Section, subsection (1) ibid. [Vol.XXII Muhammad Anwar V. Muhammad Boota Rev.C. 147 (Tanvir Bashir Ansari, J.)
17. Attention 'of this Court is also drawn to the notification dated 29.9.1958, issued by the Governor of West Pakistan by virtue of which all persons holding land as landlord and tenant or are ordinarily residing in the District of Bahawalpur, Bahawalnagar or Rahim Yar Khan shall be deemed to be a group of agricultural tribe. It was for this reason that the appellants has sought to prove that the vendees are ordinarily residents of three Districts mentioned above or are holding ownership rights in the said Districts. Admittedly, the mutation of sale No. 603, dated 18.10.1969 was not sanctioned by the Deputy Commissioner. In case, the appellant/plaintiffs are not able to show the residence or ownership of all the vendees in the above-mentioned three Districts, the appellants shall fail to prove the sale by a Member of the Agricultural tribe in favour of vendees who should also be proved to belong to the same agricultural tribe.
18. The appellants contended that the vendees are shown to be " " in the mutation itself which would prove their residents in the village where the sale took place. This contention of the appellants cannot be accepted as mentioned of residence in the mutation by itself is not sufficient to prove the fact of residence or of a party to be ordinarily residence of the said village. The residence had to be proved through independent and positive evidence. Reliance Is placed upon Karam Dad and others v. Mutlan Abdul Rahim and three others (PLD 1980 B.J. 29). It is also worth mentioning that mutation No. 603 is not even exhibited on the record.
19. As regards, the mention of residence in " W " or in the power-of-attorney executed by the respondents, the mention of residence of the vendees shall not be a proof of the vendees being ordinarily residents of three Districts mentioned in this notifications of 29.9.1958 in the absence of other corroborative evidence. Coming to the application for production of additional evidence it is noticed that oniy some of respondents have been mentioned in the Record-of- Rights sought to be produced. Even if the said documents are allowed to be produced in additional evidence subject to all just exceptions only some of respondent's and not all sh all be shown to be owning agricultural land in the District of Rahim Yar Khan. In that event too the suit for pre-emption would be hit by the provisions of Sections 23 and 24 of the Punjab Preemption Act, 1913. For this reason no useful purpose shall be served by allowing additional evidence at this stage. In this context it is found that the transaction of sale is not divisible as the payment of sale consideration has been made in lump sum. For this reason also the pre-emption suit cannot succeed on account of partial pre-emption.
Reliance is placed upon Abdullah and three others v. Abdul Karim and others (PLD 1968 SC 140).
20. The upshot of the above discussion is that the sale subject-matter of the suit cannot be pre- empted and no decree for pre-emption can be passed in view of the provisions of Sections 23 and 24 of the Punjab Pre-emption Act, 1913. Resultantly, this Regular Second Appeal fails and is dismissed leaving the parties to bear their on costs. .