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Petitioner: HASIL and anothers VS Respondent: KARAM HUSSAIN SHAH and others
Court Name: Supreme Court of Pakistan Judge(s): Irshad Hasan Khan, Ajmal Mian Title: HASIL and anothers vs KARAM HUSSAIN SHAH and others Case No.: Civil Appeal No, 525 of 1992 Date of Judgment:1995-05-08 Reported As: 1995 SCMR 1385 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' AJMAL MIAN, J---This is an appeal with the leave of this Court against the judgment dated 7-7- 1991 of a learned Single Judge of the Lahore High Court passed in R.S.A. No, 268 of 1977 Tiled by the respondents against the appellate judgment/decree dated 18-3-1977 of the learned Additional District Judge, Muzaffargarh, in Civil Appeal No, 23/13 of 1976, reversing the dismissal judgment/decree dated 15-6-1974 of the learned Civil Judge, IInd Class, Dera Ghazi Khan, in Civil Suit No, 464 of 19'2, decreeing the appellants' suit for pre-emption, allowing the same by setting aside the above appellate judgment/decree and restoring the judgment/decree of the trial Court. Leave to appeal was granted to consider the contentions of the learned counsel for the appellants noticed in the leave granting order. 2. The brief facts are that the suit land was sold by one, Allah Din, by means of mutation dated 24- 9-1971. The present appellants filed aforesaid preemption suit on 8-9-1972 on the basis of being co-sharers in the Khata and as owners in the estate. It appears that at the time of the above sale transaction the respondents/vendees were in occupation of the suit land as the tenants. It seems that on 11-3-1972 paragraph 25 was added in M.L.R. 115 of 1972, hereinafter referred to as the M.L.R:, whereby the tenants, who were in occupation of agricultural land from Kharif 1972, were given preferential preemption rights in case of sale. 3. The above suit was resisted by the respondents and inter alia it was pleaded that they had a preferential right of pre-emption under paragraph 25(d) of the M.L.R. The learned trial Court, on the basis of pleadings of the parties, framed as many as 11 Issues. After recording evidence and hearing the parties, under Issues Nos.7 and 8 it was held that the respondents had superior right qua the appellants in September, 1972, when the above suit was instituted. After recording the
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above finding besides on the other Issues, the learned Civil Judge dismissed the suit with costs through the judgment/decree dated 15-6-1974. Against the above judgment/decree, the appellants filed aforesaid civil appeal, which was allowed. 4. It appears that during the pendency of the above appeal, consolidation proceedings were taken under the provisions of West Pakistan Consolidation of Holdings Ordinance, 1960, hereinafter referred to as the Ordinance, in respect of the appellants' land. As a result of the above consolidation proceedings, the appellants' Khata was separated and they ceased to be co-owners in the Khata of the suit land. 5. It was held by the learned Additional District Judge that the respondents had no superior right as the tenants on the date of sale i,e. On 24-9-1971 for the reason that above paragraph 25 was added on 11-3-1972 which was made applicable from Kharif 1972 and secondly on the date of filing of the suit, the respondents' status was of the owners. He also held as follows:-- "The learned counsel for the appellants admitted that after the decision of the suit the right of parties has come at par as the consolidation has taken place and the land of the appellants had been given a separate Khata number and suit land is in a different Khata. However, the learned counsel for the appellants argued that this development which has taken place after the judgment of the lower Court cannot in any manner affect the right of the appellants because under the law the appellants retained superior right of pre-emption till the decision of the lower Court and it is not necessary that the appellants should retain this qualification during the pendency of the appeal." ' After recording the above findings, the learned Additional District Judge reversed the trial Court's judgment/decree and decreed the appellants' suit. After that, the respondents filed aforesaid R.S.A., which was allowed through the judgment/decree under appeal. The finding recorded by the learned appellate Court that the respondents did not have superior right as the tenants on the date of the sale i,e. 24-9-1971 because above paragraph 25 was added on 11-3-1972 which was made applicable from Kharif 1972, was maintained and so also the finding that the respondents' status on the date of filing of the suit was that of owners. However, the finding of the learned Additional District Judge quoted hereinabove to the effect that notwithstanding the above consolidation proceedings and assignment of separate Khata numbers to the appellants' land, the appellants retained superior right of pre-emption till the decision by the trial Court and, therefore, were entitled to the decree, was set aside. It was further held that since no decree was passed by the trial Court prior to the above assignment of separate Khata numbers to the appellants' land in the consolidation proceedings, the appellate Court was not justified in passing the above pre- emption decree in favour of the appellants on 18-3-1977; consequently, the same was set aside. Thereupon, the appellants filed a petition for leave to appeal, which was granted for the above reasons. 6. In support of the above appeal Mr. Asif Saeed Khan Khosa, learned ASC appearing for the appellants, has contended as follows:-- (i) That since the consolidation proceedings had no bearing or effect on the rights of pre-emption, the factum that before a pre-emption decree in favour of the appellants would have been passed, separate Khata number was assigned to the appellants' land, on the basis of which right of pre- emption was claimed, was of no consequence; (ii) That since the trial Court passed dismissal decree on 15-6-1974 which was prior to the assignment of separate Khata number to the appellants' land under the consolidation proceedings, the appellants' right of pre-emption was not affected because of the assignment of separate Khata number before the appellate judgment/decree passed on 18-3-1977 in favour of the appellant. To put it precisely, the submission of Mr. Khosa was that there is no distinction as to the legal effect between a decree dismissing a pre-emption suit and a decree decreeing a pre- emption suit.
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' On the other hand, Mr. Khizar Hayat, learned ASC appearing for the respondents, has urged that it is a well-settled proposition of law that in order to succeed in a pre-emption suit, a pre-emptor has to prove his right to preemption at three stages, namely: (i) on the date of the sale; (ii) on the date of institution of the suit; and (iii) on the date when a pre-emption decree is going to be passed in his favour; and as admittedly before a pre-emption decree could have been passed in favour of the appellant, he ceased to have qualification as being co-sharer in the Khata, his suit has been rightly dismissed by the learned Judge in Chambers. His further submission was that there is a distinction between preemption law and the general law inasmuch as dismissal decree of a preemption suit cannot be equated with a decree decreeing the suit. 7. Both the learned counsel are unanimous on the legal proposition ihat in order to succeed in a pre-emption suit, a pre-emptor has to show that he has the right of pre-emption at three stages, namely, on the date of the sale, on the date of institution of the suit, and the date of passing of the decree. In this regard, reference may be made to the case of Rai Tulley Khan v. Ahmad Hassan Khan and others (1981 SCMR 1075), the case of Muhammad Khan and others v. Muzaffar (PLD 1983 SC 181) and the case of Baldeo Misir v. Ramlagan Shukul (AIR 1924 Allahabad 82). However, the learned counsel for the parties are at issue on the question, whether date of decree means a decree in favour of the pre-emptor or even a dismissal decree is covered by the above third stage. ' Since the appellants had ceased to have qualification as being co-sharers in a joint Khata during the pendency of his appeal before the first appellate Court on account of consolidation proceedings, it may be pertinent to examine as to the effect of the consolidation proceedings. 8. It may be stated that the consolidation proceedings in question were initiated under the provisions of the Ordinance. It may be advantageous to refer some of its provisions. The Preamble to the Ordinance gives its object, namely, to consolidate and amend the law relating to consolidation of holdings in the Province of West Pakistan. ' Section 3 thereof provides that the Board of Revenue or any officer authorised by it in this behalf may move the Consolidation Officer for the consolidation of holdings in an estate or a sub-division. It further provides that any two or more land-owners in an estate or a sub-division holding together not less than the minimum area of the land prescribed in this behalf may make an application in writing to the Consolidation Officer for the consolidation of their holdings. In other words, the proceedings of consolidation under the Ordinance can be initiated by the incumbents of the offices mentioned in subsection (1) thereof or by any two or more land-owners. ' It may further be observed that.Section 6 of the Ordinance lays down that "Notwithstanding anything in any other law, the rights and liabilities of land-owners in their holdings and tenants in their tenancies shall, for the purpose of giving effect to any scheme of consolidation affecting them, be transferable by exchange or otherwise and neither the landlord nor the tenant nor any other person shall be entitled to object to or interfere with any transfer made for the said purpose." ' It may also be pointed out that section 7 empowers the Consolidation Officer to recommend to the Collector the rejection of the application for consolidation. ' Whereas section 9-A, which has been incorporated by Province of Punjab by Ordinance IV of 1971, empowers the Board of Revenue notwithstanding anything contained in the Ordinance to exclude or include any land or classs thereof in public interest from any consolidation scheme. ' It may also be pointed out that section 10 provides that the Consolidation Officer shall before approving any scheme, publish it in such manner as may be prescribed. It further provides that where objections are lodged by any person interested in the area covered by the scheme, the Consolidation Officer shall endeavour to bring about an amicable settlement. It also lays down that if no objections are lodged, or where lodged the Consolidation Officer succeeds in bringing about
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an amicable settlement, he shall pass an order confirming the scheme of consolidation. Further, in case he fails to bring about a settlement, the above section envisages that he shall submit the scheme with his recommendation to the Collector, who after giving notice to the persons concerned and hearing them if they so desire, may, after further enquiry by himself or through any Consolidation Officer or without such enquiry, as he may deem fit, reject the scheme or confirm it, with or without modification. ' It may be observed that section 12 of the Ordinance deals with the payment of compensation to the affected persons on account of consolidation. Whereas section 13 empowers the Board of Revenue, a Commissioner or the Collector to call for and examine record in respect of consolidation proceedings. 9. It may be instructive to reproduce sections 15, 16 and 17 of the Ordinance, which read as follows:- - ' Section 15. Procedure on confirmation.--When the confirmation of scheme of consolidation becomes final, the Consolidation Officer shall-- (a) announce the decision which has become final, if this has not been already done; (d) demarcate the boundaries of the holdings, if necessary; and (c) cause to be prepared a new record-of-rights in accordance with the scheme. Explanation. Such record-of-rights shall have the same force as the record-of-rights which it purports to replace. ' Section 16. Rights of land-owners and tenants after consolidation same .As before.--A land-owner or a tenant shall have the same rights in the holding or land allotted to him in pursuance of a scheme of consolidation as he had in hit original holding or tenancy, as the case may be." ' Section 17. Transfer of incumbrance to new allotments.--Subject to any rules that may be made under section 29, when the holding of a land-owner or the tenancy of a tenant brought under the scheme of consolidation is burdened with any lease, mortgage or other incumbrance, such lease, mortgage or other incumbrance shall be transferred and attached to the holding or tenancy allotted under the scheme or to such part of it as the Consolidation Officer may direct; and, thereupon, the lessee, mortgagee or other incumbrancer, as the case may be, shall cease to have any right in or over the land from which the lease, mortgage or other incumbrance has been transferred." ' It may be noticed that section 15 envisages taking of three actions by the Consolidation Officer, namely: (i) to announce the decision; (ii) to demarcate the boundaries of the holdings, if necessary; and (iii) to cause to be prepared a new record-of-rights in accordance with the scheme. ' Explanation appended to the above section provides that such record-or-rights shall have the same force as the record-of-rights which it purports to replace. ' It may further be noticed that section 16 deals with rights of landowners and tenants after consolidation by providing that they shall have the same rights in the holding or land allotted to him in pursuance of a scheme of consolidation as he had in his original holding or tenancy, as the case may be. ' It may also be pointed out that section 17 of the Ordinance deals with the transfer of incumbrance to new allotments by providing that subject to any rules made under section 29, when the holding of a land-owner or the tenancy of tenant brought under the scheme is burdened with any lease, mortgage or other incumbrance, such lease, mortgage or other incumbrance shall be transferred and attached to the holding or tenancy allotted under the scheme or to such part of it as the Consolidation Officer may direct; and, thereupon the lessee, mortgagee or other incumbrancer, as
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the case may be, shall cease to have any right in or over the land from which the lease, mortgage or other incumbrance has been transferred. ' It is not necessary to refer to the other provisions of the Ordinance. In our view, sections 15, 16 and 17 of the Ordinance have direct bearing to the controversy in issue. In this regard, Mr. Asif Saeed Khan Khosa, learned ASC for the appellants, has referred to the case of Qaim Din v. Said Ahmad and another (PLD 1967 Lahore 1171), the case of Manzoor Hussain and others v. Sajawal and others (1983 SCMR 465), the case of Muhammad Akmal v. Muhammad Bashir 1982 CLC 279 and the case of Fazal Ahmad and 2 others v. Karam Dad and 15 others (1986 CLC 1188). ' The judgment in the above first case, which was rendered by Karam Elahi Chauhan, J. (as his Lordship then was), is the leading judgment on the subject as the same has been referred to and relied upon in the above subsequent judgments. It will, therefore, be necessary to refer the facts and the ratio decidendi in detail of the above case. ' In the above case the facts were that one Nawab Khan, defendant No,1, vendor sold for an amount of Rs,5,500, an area of 17 Kanals 2 Marlas located in Khata No, 88/415 to 417 and consisting of Khasra Nos. 614, 563, 572 and 622 as per Jamabandi for the year 1946-47 situated in Village Bohar, Tehsil and District Sialkot, hereinafter referred to as the suit land. The purchaser was Qaim Din, defendant No,2. One Said Ahmad brought a suit for pre-emption of the above land. It appears that during the pendency of the suit, the suit land went under consolidation proceedings and the vendee in lieu thereof was given another piece of land bearing Khasra Nos. 117, 122, 123 and 318. Thereupon, Said Ahmad, the plaintiff, amended the plaint, wherein he claimed a decree for both types of land. The trial Court decreed the suit on 9-11-1955 with a direction that the decree shall include both the lands, namely, the old and the new and the plaintiff would be entitled to get possession of the new land which had been allotted to the vendee, respondent No,2, in lieu of the old land. The vendee filed an appeal which was dismissed by the Additional District Judge, Sialkot, on 20-5-1957. After that the matter was brought before the Lahore High Court through a regular second appeal, which was heard by Karam Elahi Chauhan, J. His Lordship, while affirming the above concurrent judgments, discussed the various aspects of the pre-emption law with reference to the case-law as developed in the Sub-continent over a long period by the superior Courts. As regards the controversy before his Lordship, the following conclusions were recorded:-- "(c) That section 12 of the Punjab Consolidation of Holdings Act IV of 1936 also points towards the same thing. This section reads as follows:-- 12. 'Rights of land owners and tenants after consolidation same as before,--A landowner or a tenant shall have the same right in the holding or land allotted to him in pursuance of a Scheme of Consolidation as he had in his original holding or tenancy, as the case may be'." ' As the wording of the above sections shows, in the new land, a landowner shall have the same right which he had in the old land. Applying this section to the facts and the circumstances of the present case it will be noticed that the old land (which had been purchased by the vendee) was liable to be taken away from him by the pre-emptor. Of that land, no doubt, the vendee was the owner for the time being, but his ownership was a contingent sort of ownership which could be substituted by that of the pre-emptor. On the plain wording of this statute, therefore, a claim of pre-emption can be laid by the preemptor to the new land. Learned counsel with reference to certain authorities like Allah Dad and another v. Hukam Dad and others (PLD 1960 Lah. 900) and Uttam Sindh v. Sundar Singh and others (218 PLR 1914) argued that the right of pre-emption is not a right in the land and, therefore, such a right cannot be said to exist in the new land just as it did not exist in the old land. In the old land his ownership was liable to be substituted by the pre-emptor and the same will be the position of the new land. The question so far as this section, therefore, is concerned, is of fixing the rights of the vendees and not of anybody else. (d) Then there is section 13 of the Consolidation Act. This section reads as follows:--
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"13. Incumbrance of landowners and tenants.--(1) If the holding of a landowner or the tenancy of a tenant brought under the scheme of consolidation is burdened with any lease, mortgage or other incumbrance, such lease, mortgage or other incumbrance shall be transferred and attached to the holding or tenancy allotted under the. Scheme or to such part of it as the consolidation officer, subject to any rules that may be made under section 26, may have appointed in preparing the scheme; and, thereupon the lessee, mortgagee or other incumbrancer, as may be, shall cease to have any right in or against the land from which the lease, mortgage or other inccumbrance has been transferred." (2) Notwithstanding anything contained in section 11 the Consolidation Officer shall, if necessary, put any lessee or any mortgagee or other incumbrance entitled to possession in possession of the holding or tenancy or part of the holding or tenancy to which his lease, mortgage, or other incumbrance has been transferred under subsection (1). ' According to this section, if there was any incumbrance on the old land, the same shall be attached to the new land. The short question to be seen, therefore, is as to whether a right of pre- emption is a burden on the land or not. On this point, I may reproduce a passage from a foreign judgment reported in Shri Audh Behari Singh v. Gajadhar Jaipuria and others (AIR 1954 SC 417). In this case whole history of the law of pre-emption was treated and it was held as follows:-- ' The correct legal position seems to be that the law of pre-empiion imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's unfettered right of sale and compels him to sell the property to his co-sharer or neighbour as the case may be. The person who is a co-sharer in the land or owns lands in the vicinity consequently gets, an advantage or benefit corresponding to the burden with which the owner of the property is saddled, even though it does not amount to an actual interest in the property sold 5. The upshot of the above discussion is that in the instant case the right of the plaintiff-pre- emptor was not lost merely because consolidation proceedings had taken place in the village. A plaintiff-pre-emptor in a case like this, where it is established as to which land the vendee has got in lieu of his old land can follow the new land in the hands of the vendee if otherwise he retained the qualification of a preferential preemptor. In the present case, the plaintiff claimed pre-emption on the basis of being a co-owner in the Patti. If this qualification was fulfilled, then the plaintiff will not lose his right; because his case is that the new land still exists in the same Patti in which the old land was and in which he was still the owner." ' In the case of Manzoor Hussain and others (supra), this Court, while declining leave to appeal against an order of a learned Single Judge of the Lahore High Court dismissing a civil revision and affirming the order of the Civil Judge allowing amendment of the plaint on the ground that the original suit land had undergone a change in consolidation proceedings of the village and in place the vendee had been given some other land, referred the above Qaim Din's case. The author of the above order of this Court also happened to be Karam Elahi Chauhan, J. It is not necessary to refer to the above remaining cases of the Lahore High Court, wherein Qaim Din's case has been followed. 10. The ratio decidendi of the judgment in the case of Qaim Din (supra) appears-to be that the right of a plaintiff/pre-emptor is not lost merely because during the pendency of his pre-emption suit because of consolidation proceedings, the suit land has undergone change inasmuch as in, its place new land is allotted provided the plaintiff retains the qualification of a preferential pre- emptor on the basis of which he had filed his above suit for pre-emption. He can lay his hands on the newly allotted land in lieu of the suit land in execution of his pre-emption decree inter alia in view of sections 12 and 13 of the Punjab Consolidation of Holdings Act, 1936 (IV of 1936), which provisions are pari materia to sections 16 and 17 of the Ordinance. The rationale behind the above conclusion is inter alia contained in the judgment of the Indian Supreme Court in the case of Shri
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Audh Behari Singh v. Gajadhar Jaipuria and others (AIR 1954 SC 417) that the law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it curtails or restricts the owners unfettered right of sale and compels him to sell the property to his co-sharer or neighbour as the case may be. In consideration of the above burden, the person who is co-sharer in the land or owns land in the vicinity, gets an advantage benefit corresponding to the burden with which the owner of the property is saddled even though it does not amount to an actual interest in the property sold. 11. It may be pointed out that neither Qaim Din's case nor the other aforecited cases on which reliance was placed, have dilated upon the controversy in issue, namely, that if a pre-emptor's preferential right is founded on being a co-sharer in the Khata and if on account of the consolidation proceedings, he ceases to be co-sharer in the Khata before any decree in his favour could have been passed, in such event, whether he loses his preferential pre-emption right. The above cases deal with the question, as to whether a preemptor can lay his hand on the new land allotted in lieu of the suit land on account of the consolidation proceedings before a decree in his favour could have been passed. The above question has been answered in the affirmative but, at the same time, as is evident from the quoted passage from page 1187 of the above judgment that the above conclusion is linked with the condition that the plaintiff should retain the qualification of a preferential pre-emptor. If his suit was founded being a…
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