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P L D 1970 Lahore 168

Before Shameem Hussain Kadri, J

ALLAH DITTA-Plaintiff-Appellant

versus

FATEH KHAN AND OTHERS-Respondents

Regular Second Appeal No. 901 of 1966, decided on 25th July 1969.

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958),

S. 6 read with Displaced Persons Laws Amendment Ordinance (XIII of 1964) and Punjab
Pre-emption Act (I of 1913), S. 30-Proprietary rights of person permanently settled on land under
Displaced Persons (Land Settlement) Act, 1958-Pre-emptible-Section 6, Displaced Persons (Land
Settlement) Act, 1958 no bar to pre-emption suit.

Pre-emption suit of the plaintiff' against the sale of land allotted to the vendor under the Displaced
Persons (Land Settlement) Act, 1958 was contested on the ground that as according to section 30,
Punjab Pre-emption Act, 1913 the suit was to be filed within one year from the date of attestation
of mutation, on this basis the period of limitation having expired in this case on the 30th November
1964 the suit although filed on 30th November 1964 was beyond time as the property could not be
proceeded against until it was permanently settled on the allottee, which, by virtue of Ordinance
XIII of 1964, is 24th of December 1964. It was also argued in the alternative that the property
being in compensation pool could not be proceeded against in civil Court:

Held, section 6 of the Displaced Persons (Land Settlement) Act does not constitute bar to a
pre-emption suit in respect of the sale of such land, because the pre-emptor only wants his name
to be replaced with that of the purchaser from the allottee. No process in regard to the property in
compensation pool is issued in such circumstances. The suit was, therefore, within time.

Taza Gul and another v. Said Ghulam P L D 1967 Pesh. 157; All Muhammad v. Mahmoodul
Hassan P L D 1968 Lah. 329 and Sher Muhammad and others v. Azmat Ali P L D 1968 Lah. 171
ref.

(b) Civil Procedure Code (V of 1908),

S. 100 read with Limitation Act (IX of 1908), S. 3-Second appeal--Limitation Question of
law--Allowed in second appeal though not raised in pleadings.

(c) Displaced Persons (Land Settlement) Act (XLVII of 1958),


S. 16 [as amended by Displaced Persons Laws Amendment Ordinance (XLVII of
1964)] -Alienation of allotted land-Right not taken away by S. 16 [as amended]-Allottee entitled
to exercise right of alienation.

It was contended that in the substituted section 16, Displaced Persons (Land Settlement) Act, 1958
[as amended by Ordinance XIII of 1964], the words used are "the lard on which a displaced person
is permanently settled under this pct shall vest absolutely in such person" and that the words
"transfer and alienate the same" ha-a been deleted, as such the allottees upon whom permanent
rights are conferred are not freely entitled to sell such property, their allotment being liable to
cancellation, reduction and termination in view of the powers vested in the Chief Settlement
Commissioner under sections 10 and 11. It was, therefore, argued that the allotment being under
this peril, absolute title does not vest in the allottees, and right of alienation has specifically been
withdrawn by virtue of new section:

Held, this reasoning if approved is likely to lead to preposterous results. Displaced persons would
be deprived of the right of gift or sale which right was already conferred upon them, when the land
was provisionally allotted to thence under Paragraph 14, Chapter II of the West Pakistan
Rehabilitation Settlement Scheme. Permanent rights conferred on the allottees under this Scheme
by virtue of clause (3) of section 15 of the Displaced Persons (Land Settlement) Act, 1958, can by
no means be such rights. The change in section 16 of the Displaced Persons (Lard Settlement) Act
is of little consequence. Cumbersome procedure of mutating the land first in the name of the
Central Government and then in the name of the allottee, which had to be adopted under the
Displaced Persons (Land Settlement) Rules, 1959, has been avoided by Ordinance XIII of 1964.
1'he rights of alienation, therefore, had hot been taken away. Similarly, the applications of sections
10 and 11 of the Displaced Persons (Land Settlement) Act is of no consequence. Under the Scheme
the right of sale, exchange, gift, will and mortgage. was subject to the full and final settlement of
any Government dues including the rehabilitation fees or if the allottee is subsequently found to
have obtained land by fraud or misrepresentation, such an alienation was to be considered as void.
Almost similar provisions are mentioned in sections 10 and 11 of the Displaced Persons (Land
Settlement) Act. Fraud vitiates all transactions anti this principle is applicable to all deals in regard
to every kind of property. Existence of this provision in the law would not, therefore, bar any sale
of the allotted property.

(d) Punjab Pre-emption Act (I of 1913),

Ss. 4 & 6 read with Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 16Right of
allotment in land under Displaced Persons (Land Settlement) Act, 1958-Equivalent to occupancy
right-No new kind of property right in the interpretation of "tillage immovable property" created
by such allotment--Sale of such right, held, pre-emptible.

Pre-emption of sale of land allotted under the Displaced Persons (Land Settlement) Act, 1958 was
contested on the plea that according to section 6 of the Punjab Pre-emption Act, 1913 the right of
pre-emption exists in respect of "agricultural land and village immovable property" but the sale of
the right of allotment in the land does not fall within the purview of section 4 of Punjab
Pre-emption Act, 1913:
Held, since right of allotment has been held to be equivalent to occupancy right, surely such right
would be pre-emptible if it is sold. It is this principle which has been followed and not the idea
that a new kind of property right has been created in the interpretation of `village immovable
property'.

Ali Muhammad v. Mahmood-ul-Hassan P L D 1968 Lah. 329; Syed Abdul Rashid v. Pakistan and
others P L D 1962 S C 42; Sir Shadi Lal on Commentary on Law of Pre-emption, (Third Edn.) p.
61 and 11 P R 1904 rel.

(e) Punjab Pre-emption Act (I of 1913),

S. 4 read with Punjab Alienation of Land Act (XIII of 1900) and Notification No. 657-R dated
3-4-1958-Pre-emption-Right of-Available to persons holding land in estate in preference to
persons of adjoining estate.

Relying on Notification No. 657-R, dated 3-4-1958 it was contended that no distinction was left
between the plaintiff-preemptor and the respondent-vendees because both of them belonged to the
same agricultural tribe

Held, no doubt all persons holding land as landlord or tenant or ordinarily residing any where in
Punjab have been brought in one group of agricultural tribe for the purposes of Punjab Alienation
of Land Act, 1900, but the right of pre-emption would still be available to persons holding land in
the estate in preference to those persons who come from adjoining estate. Co-sharers and owners
in the same estate will continue to enjoy preferential rights of pre-emption of the agricultural land
in the estate.

(f) Punjab Pre-emption Act (I of 1913),

S. 15 read with Constitution of Pakistan (1962), Art. 6, Fundamental Rights No. 5 &
13-Pre-emptior, right of-Not in conflict with Fundamental Rights Nos. 5 & 13.

The Law of Pre-emption, it was contended, was in conflict with the Fundamental Rights provided
in the Constitution of Pakistan, 1962 inasmuch as it is clog in the settlement of an individual in a
place of his choice and "settlement" includes right to hold property in that part. Further it was
contended that the restriction imposed by the Punjab Pre-emption Act, 1913 on the sale and
purchase of property cannot be said to be in public interest contemplated by Fundamental Right
No. 13, Constitution of Pakistan and also that in Muslim Society everybody should be free to buy
and sell property:

Held, law of pre-emption is recognised by Muslim Jurists and in fact the Muslim Rulers brought
this law with them and enforced it in Indo-Pakistan Sub-Continent, which acquired the nature of
`custom' in the non-Muslim society. Such restrictions, therefore, cannot be declared against public
interest. It is surely in public interest to keep intact the family life of Muslims and restrictions on
sale and purchase of houses, lands and groves cannot be held as unreasonable and against public
policy, more especially when their origin can be traced to a Hadith by Jaber.
A co-sharer has only to give notice to the other co-sharer that he intends to sell his share in the
property. If he is interested he may buy. If he does not intend to purchase and the property is sold
within his knowledge to some outsider he cannot later come round and challenge the sale. In these
circumstances, it cannot be said that obligation of making an offer to the co-sharer for the purchase
of the property intended to be sold is unreasonable when he has to pay market value as its price if
he so chooses to buy it.

Bhau Ram v. Baij Nath Singh and others A I R 1962 S C 1476 distinguished.

Karim Ahmad v. Rahmat Elahi A I R 1946 Lah. 432 ref.

(g) Punjab Pre-emption Act (I of 1913),

S. 15-Act not obsolete or antiquated. It cannot be said that the conditions which contemplated for
the enactment of the Punjab Pre-emption Act ceased to exist. These conditions are prevalent today
and are being followed in this part of the country ever since its conquest by the Muslim Rulers.

Muslim Jurisprudence well recognises the law of pre-emption. There is no difficulty in putting into
operation of this law and our political and social circumstances are by no means changed for the
time being. We are living in a country which claims to be Islamic Republic of Pakistan. The
concept of Muslim law can-not, therefore, be forgotten. It cannot be said that the law of
pre-emption has not been in usage and as such has become an antiquated Act and its effect has
been nullified.

Maxwell on Interpretation of Statutes, 11th Edn., pp. 357 & 394 rel.

(h) Muhammad Law-

Pre-emption-An antique custom prevailing in Indo-Pakistan sub-continent-Recognised and


approved by Islam.

Gobind Dayal v. Inayatullah 7 I L R 1885 All. 775; Sir W. Macnaghten's Principles and Precedents
of Muhammadan Law, p. 14; Manu Vol. VIII, p. 258; Hamilton's Hedaya, Vol. III, p. 592 and
Hamilton's Hedaya and its translation, Vol. 111, p. 568 rel.

Ch. Muhammad Sardar Khan for Appellant.

S. M. Zafnul Abidin for Respondents.

Dates of hearing: 16th, 17th June, 4th, 10th and 11th July 1969.

JUDGMENT

This is an appeal against the judgment and decree of the learned Additional District Judge, Gujrat,
dated the 13th of September 1966, whereby he reversed the judgment and decree passed by the
trial Court in favour of, the plaintiff-appellant on the 24th of September 1965.
2. Briefly the facts of the case are that Fateh Khan and Fazal Elahi, sons of Ali of village Kotha,
and Muhammad Khan, son of Taj Din of village Dhonchal purchased land measuring 61 kanals
and one marla allotted to Mst. Karman of village Barnali in village Bbago, Tehsil Kharian District
Gujrat, vide mutation No. 2258 sanctioned on the 30th of November 1963, The plaintiff filed a
suit for possession by way of pre-emption against the vendees claiming that he being co-sharer in
the Khata and Patti had a superior right of pre-emption and only a sum of Rs.11,500.00 was paid
as price of the land instead of Rs.13,000.00 as claimed by the vendees. The suit was resisted by
the vendees on the ground that the vendor was only an allottee of the land and as such, the sale of
allottee rights was not pre-emptable. They also denied the superior right of the plaintiff and claimed
that they purchased the land for Rs. 13,000.00 and this amount was paid to the vendor.

3. On the pleadings of the parties the following issues were framed

(1) Was the sale in question subject to 'tight of pre-emption? O. P. P. (objected to).

(2) Did the defendants pay Rs. 13,000.00 to the vendor or was this sum fixed in good faith as the
price for the suit land ? O. P. P.

(3) What is the market value of the .suit land? O. P. P.

(4) Does the plaintiff enjoy a better right of pre-emption against the defendants ? O. P. P.

(5) Relief.

After recording evidence of the parties the learned trial Court decree the suit of the plaintiff on the
24th of September 1965. The vendees filed an appeal before the Additional District Judge, Gujrat,
which was accepted on the 13th of September 1966. Hence this second appeal.

4. There are two Full Bench judgments in favour of the proposition that allotted land could be
subject of pre-emption. One of them is Taza Gul and another v. Said Ghulam (P L D 1967 Pesh.
157). In this case it was considered that sale of proprietary rights by a person permanently settled
on land under the Displaced Persons (Land Settlement) Act, 1958, could be pre-empted under the
N.-W. F. P. Pre-emption Act (XIV of 1950) since the land vested absolutely in the allottee by
virture of section 16 of the Displaced Persons (Land Settlement) Act, 1958. In the Lahore case Ali
Muhammad v. Mahmood-ul-Hassan (P L D 1968 Lah. 329) learned Judges considered the question
of pre-emption in regard A to the right or interest of a confirmed allottee in the land allotted under
the Rehabilitation Resettlement Scheme framed by the former Punjab Province. It was held that
the right and interest of such a person in the property allotted to him under the Rehabilitation
Settlement Scheme is "immovable property" and its sale is covered by sections 4 and 6 of the
Punjab Pre-emption Act (1 of 1913). It was also held that section 16 of the Pakistan
(Administration of Evacuee Property) Act (XII of 1957) is a complete bar to the suit for possession
to enforce the right of pre-emption through a civil Court. A learned Single Judge, who was the
senior member of the Full Bench referred to above, in Sher Muhammad and others v. Azmat Ali
(P L D 1968 Lah. 1171) held that various provisions in the Displaced Persons (Land Settlement)
Act do not constitute bar to pre-emption suit in respect of sale of land in the compensation pool.
Pre-emptor in such cases does not proceed against the land in compensation pool for any claim,
but he only seeks substitution of his name in place of the vendee. Reliance was placed on these
cases and it was urged that the judgment and decree of the learned Additional District Judge should
be set aside and the suit for pre-emption filed by the plaintiff be decree in his favour.

5. A number of objections were raised against the claim of the plaintiff. It was contended that the
suit was time-barred. According to section 30 of the Punjab Pre-emption Act, the suit is to be filed
within one year from the date of the attestation of mutation by the Revenue Officer which was
attested on the 30th of November 1963. By virtue of section 12 of the Limitation Act, the period
of limitation prescribed for the suit excludes the day from which such period is to be reckoned. It
was further contended that even if the suit was within time by virtue of section 12 of the Limitation
Act, no suit could be filed in regard to the property in the compensation pool since it was exempted
from proceeding against for any claim in any manner whatsoever in execution of any decree or
any process of Court. The period of limitation having expired on the 30th of November 1964, the
suit was beyond time as the property could not be proceeded against until it was permanently
settled on the allottee, which is 24th of December 1964, by virtue of Ordinance XIII of 1964. The
cause of action could only accrue from this date. This question has already been examined in Sher
Muhammad's case and I am respectful agreement with the opinion expressed in that case. Section
6 4of the Displaced Persons (Land Settlement) Act does .not constitute bar to a pre-emption suit
in respect of the sale of this land, because the pre-emptor only wants his name to be A replaced
with that of the purchaser from the allottee. No process in regard to the property in compensation
pool is issued in such circumstances. The suit was, therefore, within time. Although this plea was
not raised in the pleadings by the defendants, this being a question of law was allowed to be raised
in second appeal, since section 3 of the Limitation Act provides that a suit shall be dismissed if it
is Tiled beyond the; period of limitation, though question of limitation has not been raised in
defence.

6. Next point urged was that section 16 y in the original Act was replaced by virtue of Ordinance
XIII of 1964. This original section conferred upon the allottee the rights and title on him to transfer
or alienate the land, but in the substituted section the words used are "the land on which a displaced
person is permanently settled under this Act shall vest absolutely in such person". Learned counsel
tried to create distinction that since the words "transfer and alienate the same" have been deleted
in the substituted section 16, the allottee on whom permanent rights are conferred is not freely
entitled to sell the property, his allotment being liable to cancellation, reduction and termination
in view of the powers vested in the Chief Settlement Commissioner under sections 10 and 11 of
the said Act. It was contended that allotment being under this peril, absolute title does not vest in
the allottees, and right of alienation has been specifically withdrawn by virtue of new section 16.
This reasoning if approved is likely to lead to preposterous results. Displaced persons would be
deprived of the right of gift or sale which right was already conferred upon them, when the land
was provisionally allotted to them under Paragraph 14, Chapter II of the West Pakistan
Rehabilitation Settlement Scheme. Permanent rights conferred on the allottees under this Scheme
by virtue of clause (3) of section 15 of the Displaced Persons (Land Settlement) Act, 1958, can by
no means be such rights.

7. The change in section 16 of the Displaced Persons (Land Settlement) Act is of little
consequence. Cumber some procedure of mutating the land first in the name of the Central
Government and then in the name of the allottee, which had to be adopted under the Displaced
Persons (Land Settlement) Rules, 1959, has been avoided by Ordinance XIII of 1964. The rights
of alienation, therefore, had not been taken away. Similarly, the application of sections 10 and 11
of the Displaced Persons (Land Settlement) Act is of no consequence. Under the Scheme referred
to above, the right of sale, exchange, gift, will and mortgage was subject to the full and final
settlement of any Government dues including the rehabilitation fees or if the allottee is
subsequently found to have obtained land by fraud or misrepresentation, such an alienation was to
be considered as void. Almost similar provisions are mentioned in sections 10 and 11 of the
Displaced Persons (Land Settlement) Act. Fraud vitiates all transactions and this principle is
applicable to all deals in regard to every kind of property. Existence of this provision in the law
would not, therefore, bar any sale of the allotted property.

8. According to section 6 of the Punjab Pre-emption Act, 1913, the right of pre-emption exists in
respect of agricultural land and village immovable property. This right according to the learned
counsel for the respondents was not available to the plaintiff' as the sale in the instant case was
that of the right of allotment in the land which does not fall within the purview of section 4 of the
said Act. Considering the question of the kind of right in allotment in Syed Abdul Rashid v. Pakis-
tan and others (P L D 1962 S C 42) their Lordships have observed as follows:

"It is difficult, in the circumstance, to imagine how it can be said that the interest acquired by the
allottee in the property is merely a personal interest which cannot be inherited. In our view, having
regard to the rights expressly conferred upon him by the Scheme itself, an allottee, in whose favour
an allotment has been confirmed, acquired a right which is in every sense of the term a `real
property' in its true juristic concept an interest in land."

In Ali Muhammad v. Mahmood-ul-Hassan (P L D 1968 Lah.329) their Lordships held as under:

"There is yet another aspect of the case. In Abdul Rashid v. Pakistan, it was held that subject to
the conditions of allotment and the right of resumption, the allottee becomes clothed with all the
other usual incidents of at least an occupancy tenant in the lands so allotted. Thus, he may, subject
to those conditions or covenants, deal with the same as any other such tenant would have been
entitled and may even dispose of them or alienate them either by an instrument inter was or by
will. In this view a confirmed allottee acquires rights which are in the nature of occupancy tenancy.
Sale is defined in section 3 (5) of the Punjab Pre-emption Act to mean `sale shall not include (a)
sale in execution of a decree for money or of an order of a civil, criminal or Revenue Court or a
Revenue Officer, (b) the creation of an occupancy tenancy by a landlord, whether for consideration
or otherwise. But the sale of occupancy rights is also pre-emptible under the Punjab Pre-emption
Act."

9. Sir Shadi Lal in his Commentary on Law of Pre-emption (Third Edition) at page 61 has opined
as under:

"Right of Occupancy is agricultural land. In the present Pre-emption Act, section 3, subsection (1),
the provision that agricultural land includes a right of occupancy has been removed as superfluous,
inasmuch as the definition of lana as given on the Punjab Alienation of Land Act, section 2, sub-
section (3), has now been made exhaustive by the Amending Act I of 1907 by addition of clause
(f) to the definition which clause runs thus-(f) any right of occupancy'. It is clear, therefore, that a
right of occupancy is still 'agricultural land' for the purposes of the Pre-emption Act, 1913, and a
sale thereof is subject to pre-emption, as it always has been ; (Ellis, P, 38) indeed, the special
mention of the right of occupancy in the definition of `agricultural land' is not necessary, because
the Chief Court has laid down in 11 P R 1904 that the word `land' in the Punjab Alienation of Land
Act, 1900 includes an occupancy right in land. It is thus obvious that occupancy rights in
agricultural land are `agricultural land' and if an occupancy tenant sells his right to another person,
he sells land, and a right of pre-emption arises in respect of such sales."

In this view of the matter, if right of allotment has been held to be equivalent to occupancy right,
surely such right would be pre-emptible if it is sold. It is this principle which has been followed
and not the idea as convassed by the learned counsel that a new kind of property right has been
created in the interpretation of `village immovable property'.

10. Relying on Notification No. 657-R, dated the 3rd of April 1958, for the creation of new group
of agricultural tribes, learned counsel argued that there is no distinction left between the plaintiff
and the vendees, because both of them fall within the same group of the agricultural tribe. No
doubt alt persons holding land as landlord or tenant or ordinarily residing anywhere in Punjab have
been brought in one group of agricultural tribe for the purposes of Punjab Alienation of Land Act,
1900, but the right of pre-emption would still be available to persons holding land in the estate in
preference to those persons who come from adjoining estate. Co-sharers and owners in the same
estate will continue to enjoy preferential rights of pre-emption of the agricultural land in the estate.

11. It was next argued that the Displaced Persons (Land Settlement) Act, 1958, being Central Law
will hold the field in preference to the Punjab Pre-emption Act, 1913, by virtue of Article 134 of
the Constitution, since the former Act prohibits the right of sale to the allottees in view of the
change in section 16 of the Amended Act of 1958. I have discussed at length the effect of section
16 and it is not necessary to further reiterate that point. Since according to my humble view there
is no conflict between the two Act, the question of preference of the former Act, therefore, does
not arise. The allottees on whom permanent rights have been conferred have the right of sale of
such property and such a sale has been held pre-emptible in the above discussion.

12. It was next argued with vehemence that law of Pre-emption comes in conflict with
Fundamental Rights and as such has become invalid piece of Legislation. Reliance was placed on
an Indian case Bhau Ram v. Baij Narh Singh and others (A I R 1962 S C 1476) in which the right
of pre-emption by vicinage in urban immovable property has been held to be in conflict with
Fundamental Right 19 (f) of the Indian Constitution. The facts of this case are not relevant. In the
first place, the case deals with section 16 of the Punjab Pre-emption Act which relates to the
property situated in town or sub-division of town and not section 15 of the Punjab Pre-emption
Act, which applies to the right of pre-emption in respect of sale of agricultural land, or village
immovable property. On page 1482 the learned Judges observed that: "We are not here concerned
with section 15 and express no opinion with respect to it". Dealing with the first, third and fourth
grounds mentioned in section 16 the learned Judges held as under:

"We have no doubt that a law giving such a right imposes a reasonable restriction which is in the
interest of the general public. If an outsider is introduced as a co-sharer in a property it will make
common management extremely difficult and destory the benefits of ownership in common. The
result of the law of pre-emption in favour of a co-sharer is that if sales take place the property may
eventually come into the hands of one co-sharer as full owner and that would naturally be a great
advantage. The advantage is all the greater in the case of a residential house and section 16 is
concerned with urban property, for the introduction of an outsider in a residential house would
lead to all kinds of complications. The advantages arising from such a law of pre-emption are clear
and in our opinion outweigh the disadvantages which the vendor may suffer on account of his
inability to sell the property to whomsoever he pleases. The vendee also cannot be said to suffer
much by such a law because he is merely deprived of the right of owning an undivided share of
the property. On the whole it seems to us that a right of pre-emption based on co-sharership is a
reasonable restriction on the right to acquire, hold and dispose of property and is in the interest of
general public.

(12) The same reasoning in our opinion will apply to the third ground, "where the sale is of a
property having a staircase common to other properties, in the owners of such properties". This
ground stands on the same footing practically as the first ground relating to co-sharers, and for the
same reason we hold that it is a reasonable restriction, and is in the interest of a general public.

(13) Turning now to the fourth ground, "where the sale is of a property having a common entrance
from the street with other properties, in the owners of such properties", this ground is in our opinion
similar to the third ground, the only difference being that in one case there is a common staircase
while in the other case there is a common private passage from the street. The idea behind this
ground seems .to be that the buildings are in a common compound and perhaps were originally put
up by members of one family or one group with a common private passage from the public street.
In such a case the owners of the buildings would stand more or less in the position of co-shares,
though actually there may be no co-sharership in the house sold. But as we have said this case
would approximate to cases of a common stair-case and co-sharers; therefore, for reasons given in
the case of co-sharers we uphold the right of pre-emption covered by the fourth ground in section
16. The case falling under the fourth ground must be distinguished from Katras which are exempt
from the provisions of the Act in section 5: (see Karim Ahmad v. Rahmat Elahi A I R 1946 Lab.
432).

(14) A contention was also raised that section 16 offends Art. 14 of the Constitution. This was
based on section 5 of the Punjab Act which gives exemptions to certain properties from the
application of the Act and also on the ground that it did not apply to agricultural property. So far
as agricultural properties are concerned, they form a distinct class by themselves and therefore
there can be no question of discrimination on that account."

The learned Judges, however, held that the right of pre-emption based on vicinage can have no
force now and the law must be held to her unreasonable restriction on the right to acquire, hold
and dispose of property as guaranteed by Article 19(1) (f) of the Constitution. The right of
pre-emption in the instant case is not based on vicinage, and the finding of the Supreme Court of
India are not attracted.

13. I need not have considered this aspect of the case since Fundamental Rights have been taken
away by Clause (3) of Paragraph 2 of the Provisional Constitution Order, 1969, but in the instant
case the suit was filed when Fundamental Rights were in existence. Right to sue will naturally
come under cloud if the vires of the Act is challenged. First Amendment to the Constitution was
made on the 10th of January 1964, and the suit was instituted on the 30th of November 1964.
Learned counsel submitted that the suit was not maintainable when it was filed, though at the time
of passing the decree, i.e. 24th of September 1965, the Fundamental Rights had been superseded
by the declaration of Emergency by the President on the 6th of September 965. Despite this plea
had vanished when the suit concluded, yet I would like to examine this question in the light of the
provisions of our own Constitution :-

"Fundamental Right S.-Freedom of movement-Subject to any reasonable restrictions imposed by


law in: the public interest, every citizen shall have the right to move freely throughout Pakistan
and to reside and settle in, any part thereof."

Law of pre-emption according to the learned counsel is a. clog in the settlement of an individual
in a place of his own choice and `settlement' according to him includes right to hold property in
that part. The very paragraph begins with "subject to any reasonable restriction imposed by law in
the public interest". It, therefore, provides that reasonable restrictions cans be imposed even on the
movement and settlement of an individual. The Pre-emption Act does not bar coming to that village
of an individual who does not own property in that estate.

However, it only creats restrictions on him to buy property in that particular area in preference to
another person. He can buy provided nobody objects to his purchase and it cannot necessarily, be
presumed that every sale will be challenged. The right of challenge may or may not be exercised
by the owners in that estate. Moreover this does not mean that the vendees intend to settle in the
estate where they have purchased land. They are residents of two different villages away from the
estate of village Bhago where the property is situated. It, therefore, cannot be said that restriction
has been imposed on their settlement in village Bhago. Only preferential right to purchase land is
available to the plaintiff. Such preference cannot be held to be unreasonable restriction, against
public interest in order to keep the village community a compact society. Learned counsel further
submitted that this kind of society should no more be in existence in Pakistan after independence.
The displaced persons a new society has been introduced in the village and in any case the village
community no more remains a compact society of the pre-Independence period. The
right of pre-emption is available to the owner in the estate and if the new settler, who by operation
of law has become the owner in the village intends to sell his property, surely it cannot be said that
he is a loser if the local inhabitants of the Chak have the preferential right to acquire that property.
All that he is interested in is the market price of the land which the pre-emptor has to pay if he
wants to preempt the land sold by the transferee under the Displaced Persons (Land Settlement
Act, 1958.

14. Fundamental Right 13 deals with property rights which is reproduced as under :-

"13. Provision as to property.-Subject to any reasonable restrictions imposed by law in the public
interest, every citizen shall have the right to acquire, hold and dispose of property."

Learned counsel says that the restriction imposed by the Pre-emption Act on the sale and purchase
of the property can-not be said to be in public interest. He submitted that in Muslim Society every
body should be free to buy and sell the property. Learned counsel seems to have lost sight while
making this submission to the fact that law of pre-emption is recognized by Muslim Jurists and in
fact the Muslim Rulers brought this law with them and enforced it in Indo-Pakistan Sub-Continent,
which acquired the nature of `custom' in the non-Muslim society. Such restrictions, therefore, can-
not be declared against public interest. It is surely in public interest to keep intact the family life
of Muslims and restrictions on sale and purchase of houses, lands and groves cannot be held as
unreasonable and against public policy, more especially when their origin can be traced to a Hadith
by Jaber with which I will deal at a later stage.

15. A co-sharer has only to give notice to the other co-sharer that he intends to sell his share in the
property. If he is interested he may buy. If he does not intend to purchase and the property is sold
within his knowledge to some outsider he cannot later come round and challenge the sale. In these
circumstances to my mind it cannot be said that obligation of making an offer to the co-sharer for
the purchase of the property intended to be sold is unreasonable when he has to pay market value
as its price if he so chooses to buy it. I have already dealt with regard to the so-called restriction
on acquisition of property by an outsider in the preceding paragraph. Suffice it to say such an
outsider will come next in the line to purchase it and he cannot be debarred altogether, because
every sale is not necessarily to be pre-empted by the co-sharers or the local land holders in the
estate. He can, therefore, acquire and hold property in an estate subject to the above restriction
which cannot be considered to be unreasonable.

16. It was submitted that the purpose of allotment to displaced persons was their economic
rehabilitation and, therefore, as its result a large number of displaced persons belonging to different
communities settled in the same village. All of them acquired the status of a `displaced person'
and, therefore, became a different community from one of the local inhabitants in the estate.
Original inhabitants in the estate may claim right of pre-emption against each other, but their claim
cannot extend to a different community. There is little force in this submission, because the land
in the estate, if it is intended to be sold outsider, the local inhabitants who have preferential right ,
purchase it, cannot be deprived of it for the reason that the property vested in the displaced person.
Moreover, these persons stepped into the shoes of the evacuee land-owners in the estate. If the
right of pre-emption was available to the original proprietors against the evacuees, it cannot be
curtailed for the reason that the property has gone into different hands.

17. The argument would also be fallacious for the reason that if there are two tribes or communities
in the village, according to the learned counsel, the former i. e. local owners, may have right of
pre-emption in regard to the property of locals only but not the property in the hands of the second
class, namely, displaced persons, and the latter group by no means can have the right to claim the
property of their co-sharers on the basis of pre-emption. It will not only be discriminatory and
illegal but is likely to cause great hardship to both the categories. The right of pre-emption will,
therefore, be available to any land-holder in the estate whether the person is a local inhabitant or a
displaced person.

18. Examining the question as to whether the law of pre-emption has become obsolete Craies on
Statutes Law (Sixth Edition) and Maxwell on Interpretation of Statutes (Eleventh Edition) have
been referred. On page 357 of Craies "Obsolete Acts" have been defined as under :-
"Obsolete.-Where the state of things contemplated by the enactment has ceased to exist, or the
enactment is of such a nature as to be no longer capable of being put in force, regard being had to
the alteration or social circumstances."

It cannot be said that the conditions which contemplated for the enactment of the Punjab
Pre-emption Act ceased to exist. These conditions are prevalent today and are being followed in
this par of the country ever since its conquest by the Muslim Rulers. Muslim Jurisprudence well
recognises the law of pre-emption. There is no difficulty in putting into operation of this law and
our political and social circumstances are by n o means changed for the time being we are living
in a country which claims to be Islamic Republic of Pakistan. The concept of Muslim law cannot,
therefore, be forgotten. It cannot be said that the law of pre-emption has not been in usage and as
such has become an antiquated Act and its effect has been nullified.

19. Maxwell on Interpretation of Statutes (Eleventh Edition) at page 394 has observed as under :-

"A law is not repealed by becoming obsolete."

In my humble view law of pre-emption, therefore, has not become an, obsolete Legislation. It has
been in practice since generations and is approved both by Islamic concepts and the usage of
custom. In any case, it was argued that another important object of pre-emption, namely, the
consolidation of holdings, has been achieved by Martial Law Regulation No. 64 and, therefore,
even if the law of pre-emption which may be considered useful for the purposes of consolidation
in the village has lost its utility. Be that as it may, if the law is to be practised, it will follow whether
some other Legislation has partly achieved its object and it cannot be said that the former law has
lost the necessity of existence.

20. Lastly it was contended that law of pre-emption is not an antique custom in the Indo-Pakistan
Sub-Continent, but in fact it was thrust upon the local inhabitants by the Muslim Conquerors who
brought the idea as part of their personal Law. Dealing with the origin of pre-emption in
Indo-Pakistan Sub-Continent Mahmood, J. in a Full Bench case Gobind Dayal v. Inayatullah (I L
R 7 All. 775) has exhaustively dealt with the proposition as under

"I will deal with the matter under three heads; firstly, the history of the law of pre-emption, and its
introduction into India; secondly, the manner in which it has been administered by the British
Courts; and thirdly, the Muhammadan texts upon which my conclusion are founded,"

He cited from Sir W. Macnaghten's Principles and Precedents of Muhammadan Law, page 14,
which says :-

"Sales of land and other immovable property are clogged with an incumbrance, which is not,
however, peculiar to this Code. I allude to the law of pre-emption. This confers the privilege on a
partner or a neighbour to preclude any stranger from coming in as a purchaser, provided the same
price be offered as that which the vendor has declared himself willing to receive for the property
to be disposed of."
The author of this judgment discussed whether pre-emption prevailed originally among the
Hindus. He referred to Maha Nirvana Tantra, a work which chiefly treats of mythology, a passage
which would seem to imply that pre-emption is recognised as a legal provision according to the
notions of Hindus. He carefully examined various books by eminent authorities of Hindu

Law like Dr. Rajendralal Mitra who being an eminent Sanskrit Scholar observed

"The word `Samanta' is everywhere defined to mean owner of an adjoining property, and not the
right which such an owner has to claim precedence in purchasing his neighbour's Property. The
word occurs first in Mannu (Volume VIII, 258), and there it means `neighbour' and most of the
other text writers have since used it invariably in the same sense,"

He then quoted Dr. Jolly of the University of Wirzburg, Germany an eminent authority, who acted
as the Tagore Professor of Hindu Law at the University of Calcutta saying:

"The only trace of pre-emption in the Hindu Law which I am aware of occurs in a text quoted in
the Mitakshara and other standard law-books. It is as follows :-

`Transfers of landed property are effected by six acts : by consent of fellow-villagers, kinsmen,
neighbours, and coparceners, and by gift or gold and water:

This text indicates clearly the existence in the early period of the Hindu Law of a feeling that a
transfer of landed property is not valid unless the neighbours, fellow-villagers, and others who are
but remotely concerned with it should have given their consent to its being effected.

He also observed as under :-

"Adopting the authority of these eminent Sanskritists, there is no doubt in my mind that the
question which Sir William Macnaghten regarded as open to doubt is in reality not so, and that
there has never been such a right as that of pre-emption recognised by the Hindu Law, though 1
cannot forget that the rule of that law which prohibits any member of a joint undivided family from
selling his share in the joint property without the consent of his co-parceners, aims at a result not
dissimilar to that which the Muhammadan Law of Pre-emption is intended to achieve."

21. The learned Judge then went on to say:

"The law of pre-emption is essentially a part of Muhammadan jurisprudence. It was introduced


into India by Muhammadan Judges who were bound to administer the " Muhammadan Law. Under
their administration it became and remained for centuries, the common law of the country, and
"was applied universally both to Muhammadan and Hindus, because in this respect the
Muhammadan Law makes no distinction between persons of different races or creeds. A
Muhammadan and a Zimmee being equally affected by principles on which shafa or right of
pre-emption is established, and equally concerned in its operation, are, therefore, on an equal
footing in all cases regarding the privilege of shafa. (Hamilton's Hedaya, Vol. III, P. 592), What
was the effect of this? In course of time, pre-emption became adopted by the Hindus as a custom."
This eminent Judge then discussed case-law during the British period in his judgment and finally
came to the following conclusion that "pre-emption a right which the owner o` certain immovable
property possesses, as such, for the quiet enjoyment of that immovable property, to obtain, in
substitution for the buyer, proprietary possession of certain other immovable property, not his own,
on such terms as those on which such latter immovable property is sold to another person.

22. Lastly dealing with the proposition the distinguished Judge referred to Hamilton's Hedaya and
its translation at page 568, volume III. It read as follows :-

"Pre-emption becomes obligatory (i.e. enforceable) by a contract of sale, which means after the
sale. Not that sale the cause of pre-emption, for the cause is conjunction (of the properties) as we
have already mentioned. And the reason in the matter, is, that pre-emption becomes obligatory
when the seller has turned away from (i. e. wished to get rid of) the ownership of his house, and
the sale makes this apparent. Hence proof of sale is sufficient as against him even to the extent of
pre-emptor taking it (the house) when the seller acknowledges the sale, although the buyer
contradicts him."

"He differed from the interpretation by Hamilton and further quoted other books, namely,
"Durrul-Mukhtar" and "Aini", commentary upon the `Kanz! The short text from DurrulMukhtar is
as under :-

"The cause of pre-emption is the contiguousness of the pre-emptor's property with the purchased
property, whether by co-parcenership or vicinage."

The learned Judge again quoted a more explicit passage from "Aini" which is to the following
effect :-

"By sale which must be referred to his expression `pre-emption becomes obligatory'. This would
indicate that the cause of the obligatoriness of pre-emption is sale, that is the sale of the
pre-emptional house, and some have held this very opinion. The correct opinion, however, is that
.the cause of pre-emption is the conjunction of the properties in a necessary manner, and sale is a
condition of pre-emption. From this it follows that pre-emption becomes enforceable by sale, that
is, after its coming into existence."

He also referred to "Birjandi", a well-known Commentary on Muhammadan Law and also to


"Zakhira". Lastly, he referred to a tradition of the Holy Prophet related by Jabir. It reads as follows
:-

"Pre-emption exists in all joint properties whether land or house or grove. It is not proper for him
(the owner) to sell -till he has offered it to his co-parcener, who may take it or rejected it, and if
the vendor fails to do this, his co-parcener has the preferential right to it until he is informed."

This judgment is a masterpiece in this field and every bit collection of jeweh of wisdom and
thought. `Pre-emption' is no doubt an antique custom prevailing in this Sub-Contsnent and in any
case, it is recognised and approved by Islam. It cannot, therefore, be disapproved for the simple
reason that some preference is available to certain individuals. Otherwise considering its merits
and demerits, I am of the view that the advantages are greater than disadvantages. I must, however
make it clear that I express no opinion in regard to section 16 of the Punjab Pre-emption Act, These
observations of mine are only- relevant to agricultural land and village immovable property. The
case in regard to right of pre-emption of pieces of land situated within urban areas may have to be
examined entirely on a different level in the ever-increasing population of towns on account of the
industrial development of the country.

23. For the foregoing reasons, the judgment and decree of the lower appellate Court is set aside
and the suit of the plaintiff is decreed. Before parting with this case I must express my thanks to
both Hakim Muhammad Sardar Khan and Mr. Zainul Abidin, learned counsel for the parties, who
eminently assisted me in coming to this conclusion. Since the questions involved were fairly
complicated, the parties are left to bear their own costs, and I grant the required certificate for
permission to file Letters Patent Appeal.

Appeal accepted.