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Petitioner: ABDUL MAJID KHAN (REPRESENTED BY HEIRS) VS Respondent: SHAHZADA ASIF JAH
Court Name: Peshawar High Court Judge(s): Qaisar Khan, Shah Zaman Babar Title: ABDUL MAJID KHAN (REPRESENTED BY HEIRS) vs SHAHZADA ASIF JAH Case No.: Regular Second Appeal No. 14 of 1963 Date of Judgment:1969-06-19 Reported As: PLD 1970 Peshawar 37 Result: Appeals dismissed
JUDGMENT
JUDGMENT SHAH ZAMAN BABAR, J.-This appeal (R. S. A. No. 14 of 1963) and R. S. A. No. 15 of 1963 arise out of the same sale in favour of Abdul Majid Khan vendee --appellant. The points of law are common in both the appeals. Both the appeals are, therefore, disposed of by this judgment. 2. Abdul Majid Khan defendant-appellant (who has died during the pendency of the appeal and is represented by his legal representatives) was owner of excessive landed property, including the suit property. By Mutation No. 1135, attested on 21-11-1941, Abdul Majid Khan gifted the suit property along with other land in favour of his three sons, namely, Muhammad Akram, Gohar Aman and Hakam Khan. By Mutation No. 481, attested on 26-7-1960, the three sons are purported to have sold the Suit Khasra No. 16 (Appeal No. 14/63) measuring 222 kanals situated in village Timbri Tehsil Mansehra and Khasra No. 258 (Appeal No. 15/63) measuring 86 kanals 17 marlas of the same village along with other land in favour of their father Abdul Majid Khan. This sale was pre-empted by two suits. Suit No. 191/1 of 1961 was instituted by Shahzada Asif Jah, minor son of Muhammad Haroon, through his next friend Muhammad Hanif Khan against Abdul Majid Khan vendee with respect to Khasra No. 16, measuring 222 kanals as the plaintiff claimed superior right of pre- emption with respect to this khasra number only amongst the khasra numbers purported to have been sold to Abdul Majid Khan. Suit No. 192/1 of 1961 was instituted by Mst. Mehr Afzoon against Abdul Majid Khan vendee in respect of Khasra No. 258 measuring 86 kanals 17 marlas. The plaintiff in this Suit claimed superior right of pre- emption in respect of this khasra only amongst the khasra numbers purported to have been sold to Abdul Majid Khan.
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3. Boththe suits were defended by Abdul Majid Khan. The issue framed in both the suits are common and they are as under:-- (1) Whether the plaintiff has a cause of action? (2) Whether the suit is within time? (3) Whether the plaintiff is estopped by his/her conduct to bring this suit? (4) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction? (5) Whether Muhammad Akram, Gohar Aman and Hakim Khan are necessary parties to the suit? (6) Whether the present suit is for partial pre-emption, if so, its effect ? (7) Whether the plaintiff has a superior right of pre-- emption? (8) What is the market price of the land? (9) Relief. 4. Both the suits were tried separately by the Civil Judge 2nd Class, Mansehra. In Suit No. 191/1 of 1961, the plaintiff was granted a decree for possession by pre-emption of 1/4th share including the share of shamilat out of the entire suit Khasra No. 16, on payment of Rs. 590 against the defendant with costs on 25-9-62. 5. In Suit No. 192/1 of 1961 also by the judgment, dated 25-9-62, the plaintiff was granted a decree for possession by pre-emption of 24/30th shares including the share of shamilat out of Khasra No. 258 on payment of Rs. 738 against the defendant with costs. 6. The defendant-vendee preferred two appeals (Appeal No. 315/ 13 of 1962 in Suit No. 191 of 1961 and Appeal No. 316/13 of 1962 in Suit No. 192/1 of 1961) to the Court of District Judge, Hazara. The learned District Judge dealt with the two appeals in one judgment, dated 20-3-63 whereby the two appeals against the judgment and decree of the trial Court were dismissed with costs. 7.Abdul Majid Khan defendant-appellant has come up on two separate appeals to this Court. 8.In the two suits the plaintiffs were proved to have superior right of pre-emption on the basis of co-ownership against the defendant-vendee. In Suit No. 191/1 of 1961, defen--dant-vendee claimed to have improved his position by means of an exchange of land in suit Khasra No. 16 from another co-sharer named Jumma through a registered exchange deed, (copy Exh. D. X./2) executed on 27- 10-1961 and registered on 28-10-61. 9. In Suit No. 192/1 of 1961 also the defendant-vendee claimed to have improved his position by means of an exchange of land in Suit Khasra No. 258 from another co-sharer named Mst. Mewi through an exchange deed (copy Exh. D, X./ 1) executed on 12-9-1961 and registered on 13-9-1961. 10. Both the Courts have held that the improvement of title by the transactions of exchange in the two suits, was void in view of para. 25, sub-para. (4) of the Martial Law Regulation No. 64, as amended by Regulation No. 64-A, in spite of the Order No. ASR-468/62/3939-LC, dated 16th July 1962, issued by the West Pakistan Land Commission, in exercise of the powers conferred by clause (5) of para. No. 4 of the Martial Law Regulation No. 64, as this order had not been notified in the official Gazetee. 11. It will be worthy of interest to note that this order, dated 16-7-62 of the West Pakistan Land Commission was later notified in the Gazette of West Pakistan, dated February 26, 1965. 12. Also during the pendency of the appeals, N.-W. F. P. Pre-emption Act of 1950 was amended by the N.W:. F. P. Pre-emption (West Pakistan Amendment) Act, 1967 (Act VI of 1967), which will be quoted later on. 13. The learned counsel for the appellant contended that the improvement of status by the defendant-vendee (appellant) through exchanges in the two suits is not void under Martial Law Regulation No. 64 and nor such an improvement in the status is hit by the provisions of the Amendment Act VI of 1967. The learned counsel thus argued that on account of the improvement of the status of the defendant-vendee (appellant) he has gained an equal right of pre-emption to that of the plaintiffs, which entitles the dismissal of the suits of the plaintiff---respondents. Para. 25
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of M. L. Regulation No. 64 (as amended by M. L. R. 64-A), called the West Pakistan Land Reform Regulation of 1959, notified in the Gazette of Pakistan, Extraordinary on 3rd March 1959, deals with Restrictions on alienation of hold--ings". The paragraph provides: --- "25 (1) ............... (2) ............... (3) ............... (4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding: Provided that he may alienate his entire holding (or, it the case of a holding which is less than a subsistence bolding sell any part of his holding to other owners of the same village, deh or mauza). (5) Any alienation made in contravention of the provisions of this paragraph shall be void. Paragraph 4 of this... Regulation (M.L.R. No. 64) deals with Constitution of Land Commission and its powers. Sub-para. (5) of paragraph 4 of the Regulation reads :- "Where any matter is not provided for in this Regulation, or any difficulty arises in giving effect to the purposes of this Regulation, the Commission may, by order notified in the official Gazette, make such provision in respect thereof as it thinks fit, and such order shall be deemed to form part of this Regulation and have effect accordingly." 14. The West Pakistan Land Commission issued the under mentioned Notification No. ASR- 468/62/3939-L.C., dated Lahore the 16th July 1962 :- "In exercise of the powers conferred by clause (5) of paragraph 4 of the Martial Law Regulation No. 64, deemed to have become an Act of the Central Legislature in pursuance of clause (3) of Article 225 of the Constitution the West Pakistan Land Commission is pleased to direct that a land owner, having less than the area of subsistence holding, may--- (i) alienate, by way of gift, the whole or part of his holding to any of his presumptive heirs ; and (ii) exchange the whole or any part of his holding with the area held by other land owners in the same village, deh or mauza." As said above, this order was notified in the official Gazette of February 26, 1965. The learned counsel for the appellant while relying on Khan Sahib v. Nasim Khan and another (PLD 1966 Pesh. 11), argued that the order of the West Pakistan Land Commission issued on 16-7-62 and notified on 26th February 1965, should be deemed to have effect from the date of promulgation of M. L. R. No. 64. In the reported case a similar point had arisen. After quoting para. 4, sub-para. (5) of the M. L. R. No. 64, the learned Judge in para. 6, at page 12 of the reported case observed :- "It will be manifest from the language of sub-para. (5) that where (1) any matter is not provided for in the Regulation, or (2) any difficulty arises in giving effect to the purposes of the Regulation, the Commission has been authorized to make such provision in respect thereof, as it thinks fit, and such order after being duly notified in the official Gazette, shall be deemed to form part of the Regulation and have effect accordingly. The concluding words in sub-para. (5) in the brackets provide a complete answer to the argument tried to be raised, in that the order recorded by the commission and duly notified is deemed to have retrospective effect. To put it differently, whenever the Commission purports to act under para. 4, sub-para. (5) the order recorded by it and duly notified, shall have retrospective effect." This case was taken by Nasim Khan to the Supreme Court. In Nasim Khan v. Shah Said and others (1968 SCMR 971 at p. 972) "Special leave to appeal was granted in this case to consider whether the High Court were right in holding that a notification issued by the Land Commission on the 16th July 1962, permitting exchange of land by a land owner having less than a subsistence holding, could operate retrospectively so as to validate an exchange effected in 1959 and which may have been originally repugnant to Martial Law Regulation 64". However the Supreme Court considered it
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unnecessary and redundant to express any opinion as to the validity or otherwise of the exchanged transaction involved in the case, because the case was decided on another point. 15. Ordinarily an amendment in a statute takes its effect prospectively unless the Legislature gives it a retrospective effect. A quotation from "Maxwell on the Interpretation of Statutes", Eleventh Edition, at page 206 is reproduced as under: --- "Retrospective operation as regards vested rights ---It is chiefly where the enactment would prejudicially affect vested rights, or the legality of past transactions, or impair contracts, that the rule in question prevails. Every statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation.--- 16. The N.-W. F. P. Pre-emption Act, 1950 has beer amended by Act VI of 1967, called N.-W. F. P. Pre- emption (West Pakistan Amendment) Act, 1967. By this amendment section 17 of. The N.-W. F. P. Pre- emption Act, 1950, ha; been re-numbered as subsection (1) of section 17, and the following has been added thereafter as subsection (2) :- "Any improvement otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of a suit for pre-emption shall not affect the right of the pre- emptor-plaintiff in such suits." By subsection (2) to section 1, this Act is applicable to all suits or appeals pending on, or instituted after, the commencement of this Act. This Act has been gazetted in the Gazette of West Pakistan, Extraordinary, dated 17th July 1967. 17. The learned counsel for the appellant while relying on Sher Afzal Khan v. Haji Ghulam Mehbub and others (PLD 1968 Pesh. 81) argued that improvement of status by the defendant-vendee (appellant) by his exchanges during the pendency of the suits in spite of the amendment in section 17 of the N.W. F. P. Pre-emption Act, entitles him to gain equal right of pre--emption with the plaintiff--respondents under section 16 of the Act. In para. 8 at page 84, of the judgment in the reported case, it has been observed: --- "The learned counsel for the heirs of the plaintiff-- respondent tried to press into service the recent amendment introduced in section 17 of the Act, which reads as follows :- Any improvement, otherwise than through inheritance or succession, made in the status of a vendee- defendant after the institution of a suit for pre-emption shall not affect the rights of the pre-empter-plaintiff in such suit. Whatever may have been the intention of the Legislature the amendment introduced in section 17, in my view, is of no avail to the pre-emptor in that section 17 of the Act bars the institution of pre- emption suit, where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a person, having a right of pre-emption equal or superior to that of the plaintiff. In the instant case, the transfer in favour of the appellant was made after the institution of the suit and consequently section 16 would govern the case, and since so far no amendment has been introduced in this section, the amendment in section 17 cannot be imported in section 16, or read into it, with the result that as before the pre-emptor must have `subsisting right of pre-emption till the date of the decree by the first Court." 18. In order to appreciate the necessity of this amendment of section 17, the changes in the relative Punjab Pre-emption Act in this respect need be mentioned with benefit. 19. In Het Ram and another v. Dal Chand and others (AIR 1933 Lah. 481) it has been ruled :- "The law of pre-emption is a highly technical one and a plaintiff, before he can succeed, must show that his right existed not only in its preliminary stages before he went into the Court but also while the case was in the course of active prosecution before the Judge and in fact up to the time when
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the Court passed the decree. He should show that he has the right on three important dates, viz. (1) the date of the sale, (2) the date of the institution of the suit and (3) the date of the first Courts decree." "The actual acquisition by a pre-emptor is made not at the time when the property is sold to another, nor at the time when the suit is instituted but at the time when the decree is made. The preferential right that a person possesses at the time of the sale and retains till the institution of the suit merely entitles him to move the Court in his favour, but in order to succeed he must retain this position up to the time of obtain--ing the decree. Hence where a pre-emptor files a suit for pre- emption on ground of his preferential right over the vendee, but the vendee pending suit gets his defect removed and clothes himself with equal right as that of the pre-emptor, the pre-emptor, has no preferential right at time of passing of decree and as such cannot succeed." " Where during the pendency of suit for pre-emption of land to a village the vendee made an acquisition of another plot of land from the Government and thus acquired a status equal to that of the pre-emptor before the date of the decree Held, that the pre-emptor's right of pre-emption was barred." "If before the institution of the suit for pre-emption, the original vendee transfers the property to a person claiming a right equal or superior to that of the pre-emptor, the pre--emptor cannot legally oust him. This principle is not confined to those cases only where the re-sale takes place in exercise of the pre-emptive right of the subsequent vendee. There is no distinction between cases where the re-sale takes place in exercise of a pre-emptive right and those where the re-sale takes place without an assertion of his right by the subsequent vendee because the effect in both cases is the same, that is, the pur--chase of the land in suit by a person possessing a, right equal or superior to that of the pre-emptor and, in these circumstances, the fact that the purchase takes place in assertion of the right or otherwise is immaterial. A pre-emptor in order to succeed in his claim must not only possess a superior right at the time of the sale but must retain the superiority on the basis of which he claims to pre-empt also at the stage of the suit and the stage of the decree. 20. In order to end the controversy over the issue of the vendee improving his status after the institution of the suit, on section 21-A was added by Act I of 1944, to the Punjab Pre-- emption Act. This section runs as under: ----- "21-A. Any improvement, otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of a suit for pre-emption shall not affect the right of the pre- emptor-plaintiff in such suit." PLD 1962 Lah. 693) at page 697, para. 11, it has been observed that section 21-A of the Punjab Pre- emption Act deals with the improvement in the status of the vendee-defendant made after the institution of a suit for pre-emption. 21. In the year 1950, the N.W. F. P. Pre-emption Act (XIV of 1950) was enacted. Sections 16 and 17 of this Act provide as under: ----- "16. No decree for pre-emption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the time of the decree, but where a decree for pre emption, has been passed in favour of plaintiff, whether by a Court of first instance or of appeal, the right of such plaintiff, shall not be affected by any transfer or loss of his interest occurring after the date of such decree. 17. No suit for pre-emption shall lie where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a person, having a right of pre-emption equal of superior to that of the plaintiff." "7. The right of pre-emption is exercisable within the limits set by the provisions of the North-West Frontier Province Pre-emption Act, 1950. Before the enactment of that Act, the Punjab Pre-emption
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Act of 1913 was in force in the old N.W. F. Province. Under that Act, there was a difference of opinion as to whether a vendee could improve his position against the pre-emptor during the pendency of the suit. In the earlier rulings it was held that he could not, and in the later he could. The dispute was set at rest by the amendment of the Punjab Pre-emption Act, 1913 by inserting section 21-A in the Act in 1944. After the insertion of that section a vendee could not, by improving his title against the pre-emptor, retain the property. It said Section 21-A.-Any improvement, otherwise than through inheritance or succession, made in the status of a vendee-- defendant after the institution of a suit for pre-emption, shall not affect the right of the pre-emptor in such suit. 8. In the North-West Frontier Province Pre-emption Act, 1950, this matter was placed in section 16 of the Act, the relevant portion of which runs as follows: --- ---Section 16.-No decree for pre-emption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the time of decree . . . . . ." 9. In section 16 of the North-West Frontier Province Pre--emption Act of 1950 there is permission to the vendee to divest the pre-emptor of his right of pre-emption by acquiring even after the institution of his suit a right equal or superior to the plaintiff-pre-emptor. If he is able to place the plaintiff in a position to show that he has not a subsisting right of pre--emption at the time of the decree he can prevent a decree from being passed in plaintiff's favour. The plaintiff-pre-emptor falls under that disability. Firstly, if the vendee improves his own position as against the pre-emptor by placing himself in the same category of pre-emptors with him, and Secondly, if the vendee places in opposition to the plaintiff another person who stands in the same category of pre-emptors with the plaintiff-pre-emptor. 10. On the language of section 16, it is permissible to the vendee to create a situation from which it maybe open to him to say that the pre-emptor has lost his title to the decree against one of the defendants in the case. By transferring the pre--empted land to another pre-emptor and arraying him amongst the defendants the vendee can place the first pre-emptor in that situation. If by that device he can deprive him of his right he can do so even after the institution of the suit, but before passing of the decree. There is no prohibition against the employment of this device in section 17 of the North-West Frontier Province Pre-emption Act, 1950. If a person with right of pre-emption equal to the plaintiff-pre--emptor is brought into litigation against him during the pen--dency of the suit, the plaintiff pre-emptor's right of pre-emption will no doubt cease to subsist against him. He will be unable to enforce his right against him because he will not be entitled to any preference over him. So far as the language of section 16 goes it permits the vendee to defeat the pre-emptor's right not only by improving his own status against him during the pendency of the litigation, but also permits him to bring into the litigation another person possessing a right equal with or superior to the pre-emptor. 11. The Senior Sub-Judge appears to have relied on section 17 of the North-West Frontier Province Pre-emption Act, 1950, which says: --- No suit for pre-emption shall lie where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a person having a right of pre-emption equal or superior to that of the plaintiff. His argument was that Bahram Khan in whose favour this land was transferred by the original vendee, should have acquired this right before the institution of this suit. As he has acquired it after the institution of the suit, he is not entitled to this land. The learned Senior Sub-Judge appears to have read in the section something which is not there. He has imported into it a bar against the transferee after the suit.
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12. Section 17 prevents the institution of a suit against a person in whose favour the land, intended to be pre-empted, had been transferred prior to the institution of the suit. It does not allow the suit to be instituted against him. But there is nothing in this section to suggest that if the property is transferred, after the institution of the suit, the transferee will not be entitled to any consideration. If a person with right of pre--emption equal with the plaintiff has acquired the land prior to the institution of the suit, the pre-emptor will not be allowed to institute pre-emption suit against him at all. (Section 17). But there is nothing in its language (of section 17) to suggest that if the transfer is made after the institution of the suit the transferee will not be entitled to a decree. It protrudes no impediment in the way of such transferee. It constitutes a bar in the pre-emptor's way against transfers made before the institution of the suit. But the transferee from the vendee after the suit, on being imp leaded as defendant, enters into competition with the first pre-emptor and brings his case under the provisions of section 16 of the Act. In that event if the transferee as defendant succeeds in showing that as against him the plaintiff has no subsisting right of pre-emption, the decree in that event will not be passed in the plaintiff---pre-emptor's favour. 13. The position in brief is this, that so far as the vendee is concerned, he can improve his position against the pre--emptor before or after the institution of the suit. As regards transfer by the vendee in favour of a person with an equal or superior right of pre-emption, it can also defeat the pre-- emptor's suit, whether the transfer is made before, or after the institution of the suit. If the transfer in favour of such a person is made before the institution of the suit, section 17 will prevent a suit from being instituted against him, and if it is made after the institution of a suit, the transferee will be in a position to plead his right against the plaintiff under section 16 of the Act. He will be entitled to claim that the plaintiff-pre-emptor has no subsisting right of pre-emption against him at the time of the decree. On acquiring, during the pendency of the suit, property under pre-emption, he becomes a defendant in the suit and enters into competition with the pre-emptor. Having acquired a place as a defendant he can prevent, under the provisions of section 16 of the Pre-emption Act, 1950, a decree from being passed in the plaint if pre-emptor's favour. Section 17 of the Pre-emption Act of 1950 has no relevancy in that case, because transfer in his favour has been made…
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