Administration of Evacuee Property

Objection regarding period of allotment in favour of respondents in year 1952–Allotment was only for two harvests, it has been validated by sub-section (2) of Section 18 of Administration of Evacuee Property Act, 1957–It is now well settled law that all allotments made after March 1947 are valid allotments in view of sub-section (2) of Section 18 of Administration of Evacuee Property Act, 1957–According to sub-section (2) of Section 18 of Administration of Evacuee Property Act, 1957, every allotment of evacuee land whether by way of laws or otherwise made after 1st day of March 1947 has been given validation–Therefore, allotment in favour of Respondents then made for one year stood validated after coming in to force of Administration of Evacuee Property Act, 1957 and proprietary rights on basis of such allotment could not be questioned on this point. PLJ 2003 AJK 49

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42–Allotment of land in excess of entitlement–Custodian on basis of review application filed by appellant, cancelled allotment in favour of respondent on the ground that allottees had no locus standi to such allotment–Order of Custodian was, however, ‘vacated by the High Court–Validity–Respondents were allotted land without there being anything on record that they had no other adequate source of income or the land which was pre-requisite for such allotment–Respondents were required to prove that they were destitutes but they failed to do so–Custodian had un-limited powers to go into legality or genuineness of allotment–Evacuee land in question, as per order of custodian would go to pool of Custodian and Rehabilitation Authorities can allot the same to any deserving refugee or any other local destitute after due inquiry and probe. PLJ 2001 SC (AJ&K) 377

Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules 1992, R. 11–Custodian of Evacuee Property whether a civil servant amenable to jurisdiction of Service Tribunal and not High Court–Only such person can be appointed Custodian who either was or is judge of High Court or was/is qualified to be appointed as judge of High Court–Person to be appointed as Custodian would hold office until he attains age of 62 years; unless he himself sooner resigns or was removed from office in the manner provided for a judge of High Court–Custodian being not a civil servant was thus, not amenable to jurisdiction of Service Tribunal–Custodian’s writ petition against his removal was thus, maintainable before High Court. PLJ 2003 SC (AJK) 129

AJ&K Interim Constitution Act, 1974–Petitioners are ‘praying High Court to sit on jurisdiction of a special tribunal and seeking’ cancellation of proprietary rights and allotment in favour of Respondents–Section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 provides that extraordinary jurisdiction available to High Court can only to be exercised when no alternate, efficacious and adequate remedy is available to an’ aggrieved person–Petitioners could easily challenge validity of proprietary rights/transfer order in favour of Respondents through a review petition under Section 18(b) of Administration of Evacuee Property Act, 1957, but they failed to do so–Allotment and proprietary rights in favour of petitioners were challenged by respondents before Custodian and it was in knowledge of petitioners that respondents were asking cancellation of allotment and proprietary rights of petitioners on basis of their allotment in year 1952 but they even then failed to avail remedy in shape of review petition against proprietary rights of respondents–As it has been held by Hon’ble Supreme Court that High Court is not having jurisdiction to go into genuineness and legality of proprietary rights in case they were not challenged by way of review petition before Custodian and in presence of availability of an alternate remedy writ petition was not competent.PLJ 2003 AJK 49

It was brought into notice of Custodian that a totally illegal order had been passed by him while granting proprietary rights/transfer order so he was competent to re-call same even suo motu–Supreme Court of Azad Jammu and Kashmir has repeatedly held that under Section 43(6) of Administration of Evacuee Property Act, 1957, Custodian has vast powers to re-call his order irrespective of time limit. PLJ 2003 AJK 49

Under Section 25 of the Administration of Evacuee Property Act, 1957, the Custodian of Evacuee Property has unlimited powers of securing, administering, preserving and managing any evacuee property and he is authorized to take such measures as he considers necessary or expedient for this purpose and for achieving any such purpose, he is authorized to do all acts as are necessary or incidental thereto. The Custodian in his wisdom deemed it proper to lease out the land in favour of appellants but on their failure to deposit the lease amount, he was justified in cancelling the same and ordering it in favour of respondents. Once the administration of an evacuee property is assumed by the Custodian and he passes any order regulating the property deeming it as evacuee, it is not open to any Authority to pass any order in relation to that property unless a declaration or permission as the case may be is sought from the Custodian. Thus it is wrong to suggest that Custodian does not have the power to lease out the land under Section 25 of the Administration of Evacuee Property Act. Administration, preservation and management of an evacuee property includes every action which ensures the protection of the evacuee property including the lease, transfer, grant or any other mode of dispensation not inconsistent with the provisions of the Administration of Evacuee Property Act. 2004 Lawvision 327

Contention that Custodian did not possess the powers to lease out the land to respondent as it was in possession of the appellants. Court was afraid to accept this contention even for a moment in view of the provisions of Sections 18-B and 25 of the Administration of Evacuee Property Act, 1957 and appellants conduct in obtaining lease from Custodian. Under Section 18-B the Custodian has overriding powers to cancel any allotment on any of the grounds mentioned in the Section and eject summarily any person found in unauthorized possession of the evacuee property or unsuitable to hold such property, under sub-section (2) of Section 18-B of the Administration of Evacuee Property Act. “Unsuitable” includes in itself unsuitable to retain allotment as well, as dispossession would follow after cancellation of allotment only, not in its presence. This jurisdiction can be exercised by the Custodian suo motu or on any information or on the application of any person. 2004 Lawvision 327Muhammad Din & another v. Custodian of Evacuee Property & another [2000 SCR 93]., Sardar Muhammad Hanif Khan and another v. Raja Altaf Hussain Rathore [2000 SCR 464], Muhammad Iqbal & 3 other v. Custodian of Evacuee Property & 17 others [1996 SCR 359]. Referred.

Adverse possession
1. Proof of
2. Hostile title–Claim of adverse possession
3. Ghair Dakheel Karan
4. Against injunction of Islam
5. Life estate of widow
6. Right of inheritance
7. Appreciation of evidence
8. Suit for possession of property decreed
9. Plea of Adverse possession
10. Contradictory pleas
11. Alternative plea of
12. Claim of
13. Proof
14. Right of adverse possession
15. Mere entries in Jamabandis
16. Amendment of Plaint
Permissive possession would continue to be permissive and could not be treated as hostile merely by afflux of time to the knowledge of the owner. . 2002 Lawvision 219 = 2002 SCMR 300
1. Proof of—To claim ownership on basis of adverse possession, one has to prove the point of time from which it had become adverse and as to how hostile title was claimed to the knowledge of the owner. 2002 Lawvision 219 = 2002 SCMR 300
2. Hostile title–Claim of adverse possession–Entry in Jamabandi by itself was not sufficient to constitute adverse possession–Mere entry in revenue record was not assertion of hostile title–Mere non-payment of rent or mere entry in Jamabandi was not such clear evidence for suggesting adverse possession–Evidence as produced by parties showed that suit land was in ownership of respondents and petitioners were shown as tenants–Mere entry ‘Basharah Malikan Bawaj Nautore’, did not prove status of petitioner—Reasons being that if land was held by tenant under paramount title of another person he shall continue to be tenant even if possession of land was required by him on account of Nautore—Held: Once tenant is always tenant and Bashara Malikan Bawajab Nautore does not amount to adverse possession—Petition without mentis accordingly dismissed. 2002 Lawvision 156 = PLJ 2002 Lahore 218
3. Ghair Dakheel Karan :- Entry in record of rights as “Ghair Dakheel Karan” not paying any lagan to anyone–Effect–Mere fact that defendant have been occupying land as “Ghair Dakheel Karan” and not paying any “lagan” to any one including original owner would not mean that they had acquired proprietary rights in respect of land in question–Entries in Record of Rights to effect that defendants/tenants had not been paying any “lagan” would not indicate that they had become owner on account of adverse possession–Mere non-payment of rent does not alter nature of tenancy–Tenant must show that be had done something more to deny landlord, title–Law assumes that tenancy of land once entered upon continue, until determined in one of the ways, provided for by statutory enactment–To claim adverse possession clear and unequivocal evidence of assertion of hostile title would be necessary–No such evidence having been produced by defendants their claim based on adverse possession was not warranted. PLJ 2000 Lahore 28
4. Against injunction of Islam —-Law of adverse possession has been declared to be against injunction of Islam with effect from 31-8-1991, in a case reported as 1991 SCMR 2063–Decree passed after 31.8-1991, on basis of plea of adverse possession thus, cannot be sustained. PLJ 2002 Lahore 1547 Plea of adverse possession is not tenable and against Islamic Injunction–Mere entries in revenue record would not support plea of adverse possession. PLJ 2000 Lahore 157
5. Life estate of widow–Termination of life estate after re-marriage- Possession of a widow after her remarriage for more than 12 years would not ipso facto convert her possession into adverse unless she had openly denounced title of rightful owner–Mere possession for any length of time, thus, would not mature into title–Respondent (widow) while appearing as hr own witness, did not even assert any hostile or overt act to the knowledge of rightful owner–Respondent’s life estate even if due to her denial of re-marriage had not terminated under S. 3 of West Pakistan Muslim Personal Law (Shariat Application) Act, 1962, she was entitled to 1/4 share of the estate and thus became co-sharer, therefore, her possession ensured to the benefit of all co-sharers and neither question of limitation nor adverse possession could arise–Two Courts below erred in holding that respondent was in exclusive and un-interrupted possession of land in question, was not sustainable–Fact that petitioner’s predecessor having filed suit relating to land in question, and thereafter withdrew the same with permission to bring fresh suit and did not file the same in his life time would not amount to estoppel—Impugned judgment and decree non-suiting petitioner was set aside and decree for joint possession to the extent of land in question, was passed in favour of petitioner–Respondent being childless widow was entitled to the extent of 7¼ share while petitioner were entitled to 3/4 share of land in question. PLJ 2002 Lahore 390
6. Right of inheritance : — On opening of inheritance of deceased, share of pre-deceased daughter, fell to lot of respondents, who became co-sharers, in property–There being no evidence of ouster, plea of adverse possession was not well founded and was rightly repelled by two courts below–It is a settled rule, that express repudiation and ouster must be proved and mere omission to pay profits does not in itself constitute ouster–Apart therefrom, male members of family, are ordinarily considered to be representative of females, in matter of administration of joint properties and male members cannot set up a claim of adverse possession against female to-sharers particularly, when there was no evidence of complete ouster. PLJ 1998 Lahore 928
7. Appreciation of evidence–Plea of Adverse possession is valid only when a continuous & uninterrupted adverse possession for period of 12 years is shown and mere entry in revenue record regarding tenant-atwill, not paying Logan or batai owing to assertion of ownership would not legally amount to open and overt act of adverse possession against the real owners. PLJ 2004 Lahore 1066
8. Suit for possession of property decreed– Whether claim of adverse possession of appellants made out–Appreciation of evidence–Defendants brought sufficient evidence on record, oral as well as documentary, which proved their possession as hostile continuously for more than 12 years–It may also be mentioned that nature of entry recorded in favor of defendants, certainly satisfied standard set by Superior Courts while resolving proposition–It was further supported by plaintiffs, claim in relation to land in dispute having been destroyed by canal water since 1955 and same rejected by trial court as well as first appellate court–Held: Defendants, possession was continuous, particularly when documentary evidence fully supported same–Appeal accepted. PLJ 1998 AJ&K 52
9. Plea of Adverse possession — It must be adequate in continuity, publicity and extent to establish title–Possession at different intervals over different portions of land in different years cannot amount to adverse possession–Held: Adverse possession must be actual exclusive, visible hostile and continuous for statutory period without any legal origin. PLJ 2004 SC 261–Donee of alleged gift had absolutely no lawful justification to take plea of adverse possession in view of assertion that land in question, was transferred by means of valid gift–Irresistible conclusion would be that no such gift-deed was ever executed–Had it been so there would have been no justification to press into service plea of adverse possession–Person who asserts ownership over certain property by purchase/gift would not be legally justified at the same time to say that his occupation of property was hostile or adverse as against real owner. PLJ 2003 SC 28
10. Contradictory pleas–It is settled law that pleas of permissive and hostile possession could not stand together being contradictory pleas and the clash between the two is irreconcilable-. Permissive possession cannot be converted into an adverse possession unless it is proved that person in possession asserted his adverse title to the true owners for a period of 12 years. PLJ 2004 Lahore 1066
11. Alternative plea of–Whether permissible:– When a party pleads that it had a valid title through purchase and subsequent inheritance, it would be impossible for such a party to succeed in alternative on plea that possession being open and hostile, title. matured otherwise on account of influx of time through adverse possession–Petition dismissed. PLJ 1990 SC 361
12. Claim of :–Possession of one co-sharer deemed to be possession of other co-sharer–Exception to rule–Both parties privately partitioned their respective lands situate since their forefathers and are in possession of their respective lands in their capacity as full owners–It is also amply proved from record that from suit land ouster of respondents and others is proved at least from 1970 when they objected to construction on suit land made by appellant and proforma-respondents but they abstained from raising construction–If co-sharer in possession can establish ouster of other co-sharer to his knowledge for more than statutory period then possession of co-sharer becomes adverse against other co-sharers who are not in possession–Held : Adverse possession of appellant and proforma-respondents having matured into ownership irrespective of validity of decree, appellant and proforma-respondents are in adverse possession of suit land–Appeal accepted. PLJ 2001 SC (AJK) 220 Mere entries in revenue record that plaintiffs or their predecessor-ininterest were tenant and not paying “lagan” or “Batae”, owing to assertions of ownership does not in law means to open, overt act and hostile to constitute adverse possession against owners. PLJ 2004 Lahore 1851
13. Proof–Person claiming adverse possession has to specify date of possession, nature in which the same was acquired and overt act committed by him to show open and hostile possession and right against legal owners of land. PLJ 2003 Lahore 361 Whether possession of petitioners was hostile and had matured–Question of–There are no circumstances in this case to show that for said period of 12 years (before partition), in fact and reality, possession of petitioners was hostile as open and as dishonest as is required in cases like present one–Petitioners did not dare to raise any claim of ownership through adverse possession so long as evacuees remained in Pakistan–If a suit would have been filed before 1947, undoubtedly petitioners would have lost it–Held: Neither there was any question of petitioners having matured title before partition against evacuees nor after partition against Custodian and/or Central Government–Leave refused. PLJ 1991 SC 466 PLD 1991 SC 290 and PLJ 1981 SC 662 rel.
14. Right of adverse possession–Defendant claimed that he was in adverse possession and that his right had matured into ownership–Land in question, was rightly held to be in possession of mortgagee and defendant having entered into possession wrongfully could be directed to deliver possession to plaintiffs who had right as mortgagee to get possession thereof–Impugned judgment was not open to interference. PLJ 2004 SC 185
15. Mere entries in Jamabandis :– Mere entries in Jamabandis do not prove possession as adverse—Possession has to be adverse to person entitled to possession as well as having knowledge of hostile possession—Person becoming entitled to possession on death of limited owner who was out of wits—Limited owner could not have knowledge—Period of twelve years would run from death of limited owner. PLJ 1980 Lahore 250
16. Amendment of Plaint –Amendment allowed in revision by District Judge–Challenge to–Contention that plea of adverse possession was un-Islamic and could not be allowed to be taken–Decision of Shariat Appellate Bench declaring Section 28 of Limitation Act in so far it extinguishes right in property, as repugnant to Injunctions of Islam, shall take effect from 31.8.1991–On date of impugned decision in this case, no bar for acquisition of ownership rights on basis of adverse possession existed in law–Held: No ground exists for interference with revisional order allowing amendment of plaint for pleading adverse possession. PLJ 1992 Lahore 158 1991 SCMR 2063 ref (ii) Civil
Possession of house–Suit for–Dismissal of suit and appeal on ground that petitioner’s possession was adverse–Acceptance of revision by High Court–Challenge to–Petitioner not only admitted title of plaintiff (Respondent No. 1) but also admitted that he derived possession from karinda of plaintiff as a mortgagee and that plaintiff-owner had continuously been demanding rent from him and also wanted possession of disputed property–Possession of petitioner was permissive in origin and character and at no stage possession of petitioner was acquiesced in by respondent-plaintiff–It is well settled that a mere trespass over 12 years will not extinguish title of true owner nor trespasser will acquire title by prescription–Held : Petitioner has failed to prove starting time from which his possession became adverse to that of plaintiff–Held further : There is no infirmity in impugned judgment which does not suffer from misreading or non-reading of material evidence–Leave refused. PLJ 1996 SC 852
Suit for possession by predecessors-in-interest of respondents–Suit decreed by trial court–Dismissal of suit in first appeal but dismissal order set aside by High Court in second appeal–Challenge to–Contention that appellant had been in adverse possession of land in dispute–It is established from record that donor had been living with his brother and donee in their house till his death–Possession of appellant against his father can never be regarded as hostile in eye of law–However, he had right to claim adverse possession against donee, predecessor-in-interest of respondents, but it would start from day when in first instance in December, 1978, gift was executed in his favour–Suit was filed by appellant in 1981–Held : There is nothing on record to show that appellant’s possession was adverse to defendant or his legal representatives. PLJ 1996 SC (AJK) 165
Possession of land–Suit for–Suit decreed but decree upset by appellate court–Challenge to–Whether a tenant can set up adverse title during continuance of tenancy–Question of–A tenant cannot set up title hostile to his landlord without first surrendering and then regaining possession in his own right hostile to landlord–Relationship of landlord and tenant would not cease to exist by mere non-payment of share of produce to landlord–Held: Appellate court has not taken correct view of relevant law applicable to factual aspect of case–Revision petition allowed and judgment/decree of trial court restored. PLJ 1994 Peshawar 42
Suit for ownership through prescription and counter suit for possession as owners — Suit of owners decreed but on appeal, suit for adverse possession decreed — Challenge to Plea of adverse possession is based on principle of “might is right” — A person setting up plea of adverse possession against true owner, must prove same through tangible evidence — Correctness of entries in record of rights has not been challenged in plaint or in written statement filed by respondents in cross suit — Held: In light of entries in record of rights, admitted position seems to he that respondents were holding possession of suit land with consent of true owners and District Judge has wrongly granted decree for adverse possession to respondents — Appeal accepted. PLJ 1993 AJ K 48
Possession of house–Suit for–Dismissal of suit and appeal on ground that petitioner’s possession was adverse–Acceptance of revision by High Court–Challenge to–Petitioner not only admitted title of plaintiff (Respondent No. 1) but also admitted that he derived possession from karinda of plaintiff as a mortgagee and that plaintiff-owner had continuously been demanding rent from him and also wanted possession of disputed property–Possession of petitioner was permissive in origin and character and at no stage possession of petitioner was acquiesced in by respondent-plaintiff–It is well settled that a mere trespass over 12 years will not extinguish title of true owner nor trespasser will acquire title by prescription–Held : Petitioner has failed to prove starting time from which his possession became adverse to that of plaintiff–Held further : There is no infirmity in impugned judgment which does not suffer from misreading or non-reading of material evidence–Leave refused. PLJ 1996 SC 852
Suit for possession by predecessors-in-interest of respondents–Suit decreed by trial court–Dismissal of suit in first appeal but dismissal order set aside by High Court in second appeal–Challenge to–Contention that appellant had been in adverse possession of land in dispute–It is established from record that donor had been living with his brother and donee in their house till his death–Possession of appellant against his father can never be regarded as hostile in eye of law–However, he had right to claim adverse possession against donee, predecessor-in-interest of respondents, but it would start from day when in first instance in December, 1978, gift was executed in his favour–Suit was filed by appellant in 1981–Held : There is nothing on record to show that appellant’s possession was adverse to defendant or his legal representatives. PLJ 1996 SC (AJK) 165
Suit for possession–Suit decreed and decree upheld in appeal–Challenge to–Whether petitioners were in adverse possession–Question of–Neither oral evidence adduced in case nor entries in revenue papers sustained adverse possession by petitioners on land in dispute–Petitioners’ predecessor-ininterest was in occupation of land as tenant of owner and his possession was clearly permissive–Oral evidence of petitioners could not convert their permissive possession into adverse possession for ripening it into ownership rights of land in dispute–Necessary elements of adverse possession were clearly wanting in this case–Held: Lower courts rightly adjudged case in favour of respondents–Petition dismissed. PLJ 1993 Lahore 445
Person continuing to be in procession of propriety rights in spite of contrary entry in revenue papers-Question of limitation would not arise, but such question hound to crop up where neither possession is claimed by plaintiffs our they appear to be in possession of land. P L J 1981 AK (HC) 113
Alleged cultivation of land not established nor tantamounts to adverse possession-Land owned by nonmuslims who turned evacuee in 1947 after filing suit in 1946-Property vested in Custodian,Evacuee.Property on Partition (1947)-Held : continuity of twelve years possession did not mature in instant case-Ss. 23, 22, Pakistan (Administration of Evacuee Property) Act (XII of 1957)-Art. 144, Limitation Act (1908). P L J 1981 Supreme Court 662
Institution of civil suit within requisite period of prescription breaks continuity of possession-Plea of adverse possession should have all qualities of adequacy, continuity and exclusiveness to displace owner’s title. P L J 1981 Supreme Court 662
Meanings and scope—Adverse possession means possession by a person bolding land on his own behalf or on behalf of some person other than true owner having right to immediate possession—Title of true owner extinguishes after twelve years and person in possession becomes true owner—Such possession must be adequate in continuity, in publicity and in extent of area—Mere occupation or enjoyment or management of joint property by one coherers does not constitute adverse possession against other coherers unless there is disclaimer by open assertion or manifest act of ousting latter—Occasional appropriation with intermittent break of possession does not make out adverse possession—Even leasing out of joint property to different persons continuously would not be deemed adverse in absence of ouster of coheirs—Question about adverse possession is a question of fact—Concurrent findings of Courts below not disturbed in second appeal—S. 100, Civil P, C. (1908)—Art. 144, Limitation Act (1908). P L J 1980 Lahore 79
Through Oral Sale- —-Suit for declaration on basis of private sale and adverse possession–Decreed to–Appeal against–Acceptance of–find Appeal–Acceptance of Appeal against–Plaintiff/respondent claimed that his ancestors purchased land through oral sale–Defendants/appellants did not take any specific plea except bare denial–During trial however, they tried to prove that land in dispute was on “ghalla batai” with plaintiff–A party cannot produce evidence to prove a fact which is not part of its pleading–Documentary as well as orau evidence establishes possession of respondent on basis of oral sale–Statements of PWs in favour of plaintiff were not challenged by appellants–A vendee who remains in possession after sale of land or property which goes off or is otherwise defective in law holds adversely to vendor–Appeal dismissed. PLJ 1999 SC (AJK) 78
Permissive possession would continue to be permissive and could not be treated as hostile merely by afflux of time to the knowledge of the owner. . 2002 Lawvision 219 = 2002 SCMR 300
Proof of—To claim ownership on basis of adverse possession, one has to prove the point of time from which it had become adverse and as to how hostile title was claimed to the knowledge of the owner. . 2002 Lawvision 219 = 2002 SCMR 300
Entry in Jamabandi and Basharah Malikan Bawajah Nautore—Tenants-Hostile title–Claim of adverse possession–Entry in Jamabandi by itself was not sufficient to constitute adverse possession–Mere entry in revenue record was not assertion of hostile title–Mere non-payment of rent or mere entry in Jamabandi was not such clear evidence for suggesting adverse possession–Evidence as produced by parties showed that suit land was in ownership of respondents and petitioners were shown as tenants–Mere entry ‘Basharah Malikan Bawaj Nautore’, did not prove status of petitioner—Reasons being that if land was held by tenant under paramount title of another person he shall continue to be tenant even if possession of land was required by him on account of Nautore—Held: Once tenant is always tenant and Bashara Malikan Bawajab Nautore does not amount to adverse possession—Petition without mentis accordingly dismissed. 2002 Lawvision 156 = PLJ 2002 Lahore 218

AJK Right of Prior Purchase Ac, 1993
1. Question of waiver
2. Retrospective or prospective effect
3. Status of Suit Land
4. Date of Registration
5. Right of Prior Purchase on Basis of Contiguity
1. Question of waiver–Oral evidence in addition to agreement brought on record shows that during pendency of proceeding before trial court, appellant on an application moved by defendant for Special Oath has admitted that he received Rs. 10,000 for not filing pre-emption suit, which constitutes a stronger waiver against plaintiff–Both courts below decided issue against plaintiff after due appreciation of facts, order therefore does not warrant any interference–Appeal dismissed. PLJ 1998 (AJK) 5
2. Retrospective or prospective effect–That if contrary intention does not appear in relevant statute, suits which were pending at time of amendment of section 14 of Prior Purchase Act would be governed by unamended provisions which were in force at time of institution of suit and not in view of amended law–Refused–Leave to appeal. PLJ 1996 SC (AJK) 237
3. Status of Suit Land — Contention that suit land was not a definite share of estate and was not separately assessed to land revenue, S. 7(v)(d) of Court Fees Act, 1870 barred jurisdiction of Trial Court and that jurisdictional value should have been determined according to market value of land in dispute whereon a house stood constructed–Entries in Jamabandi had shown that land in dispute was assessed to land revenue and was out of a definite share of vendor–Provisions of S. 7(v)(d) of Court Fees Act, 1870 were not applicable in case and as plaintiff/pre-emptor did not file suit for possession of house constructed on suit land, jurisdictional value would not be determined on basis of market value of property, but same would be determined on basis of revenue assessed on suit land as provided under S. 7(vi)(e) of Court Fees Act, 1870–Contention of vendee with regard to non-maintainability of suit was repelled. PLJ 1999 SC (AJK) 349 Mahal/Estate–Connotation–Generally, word ‘Mahal” has same meaning as “estate” but it is not always to be so–Question that two pieces of land are situated in same “estate” or “Mahal” or not is to be determined in view of fact as to whether such piece of land were treated as one entity for assessing land revenue–It is necessary for plaintiff to prove that land owned by him and suit land were assessed to land revenue treating same as one entity or unit, i.e. “mauza”, “village”, “estate” or “mahal”. PLJ 1999 SC (AJ & K) 295
4. Date of Registration “- Suit for pre-emption decreed by trial Court, set aside in appeal and reversed by High Court–Appeal against–Whether sale-deed executed on 12.8.1991 and registered on 19.8.1991 will be operative from date of execution or from date of registration–Question of–Learned counsel for appellant has referred to case reported as Naseer Ahmad v. Asghar Ali (1992 SCMR 2300), wherein it has been held that where document compulsorily registerable is registered subsequent to date of its execution, it would operate when same was executed and not from date when same was registered–Observations made by Supreme Court of Pakistan in authority cited by learned counsel for appellant, it is evident that there is hardly any doubt that after registration, document would ‘operate from date of its execution–Thus, in instant case, sale-deed registered on 19.8.1991 would be effective from 12.8.1991–Held: Sale-deed obtained by plaintiff-respondent, on 15.8.1991, having not been in existence on 12.8.1991 would not give him any right of prior purchase–Suit entailed dismissed as was done by District Judge–Appeal accepted. PLJ 1999 SC (AJK) 230
5. Right of Prior Purchase on Basis of Contiguity-=Mere fact that property owned by plaintiff is adjacent to property sold, is not sufficient to hold that said lands are situated in same “mahal”–It is necessary for plaintiff to prove that land owned by him and suit land were assessed to land revenue treating same as one entity or unit, i.e. “nzauza”, “village”, “estate” or “mahal”–Where this was not case of plaintiff nor there was any evidence in that regard decree granted by High Court set aside. PLJ 1999 SC (AJ & K) 295

Court Decisions
Execution of Lease agreement–Sale of land by lessee and further sale by lessee–Acceptance of application u/s 3(2) of Punjab Alienation of Land Act, by D.C. holding that Section 12 of Pakistan (Administration of Evacuee Property) 1949 did not oust his jurisdiction concerning property belonging to evacuees–Constitutional petition against order of D.C. disposed of by High Court–Declaratory suit challenging vires of D.C. dismissed by Civil Court–Appeal dismissed by District Judge—High Court accepted appeal on merits and dismissed appeal being barred by time on failure of appellant to attach judgment and decree of trial Court with memo of appeal–Inter Court Appeal–Whether appeal was time–barred-Question of law–Discretion–Exercise of–Supreme Court has considered this proposition of law and held that High Court should have passed order on application of appellant for dispensing with production of certified copy of judgment and since record was available in High Court, prayer in application should have been allowed and discretion should have been exercised in favour of appellant when Court is vested with power to exempt party from performing legal obligation, but such request if declined and in the meanwhile Court has permitted period of limitation prescribed for performance of such obligation to expire, time must be extended by Court to enable party to perform such obligation, because no one can be made to suffer by any act of Court–Court has inherent power and existence of inherent power is to do justice based on sound judicial principles–Appeal accepted. AIR 1947 Calcutta 67; PLD 1999 SC 35; ILR Calcutta Series 1955; PLD 1959 Lah. 946 PLD 1989 SC 532. 2002 Lawvision 130 = PLJ 2002 LAHORE 90

Court Decisions
Ejectment of tenant–Landlord having been divested of his title by transferring shop in question, to his brother, whether entitled to proceed and seek ejectment of tenant in his personal capacity–Appellant (landlord) having transferred shop in question, to his brother, his relationship as landlord with respondent as a tenant came to an end—High Court thus, rightly set aside concurrent judgment of Courts below whereby they had ordered ejectment of respondent–Appellant having transferred shop in question to his brother, had no cause of action to maintain application for ejectment of tenant—Transferee having did, his legal representatives could competently proceed against respondent for his ejectment from shop in question. 2002 Lawvision 13 = PLJ 2002 SC (AJK) 140, 1996 SCMR 48; 1998 SCMR 948; 1991 CLC 2018 and 1985 MLD 124 ref.

Court Decisions
Ejectment of tenant ordered by trial Court and affirmed by Appellate Court were set aside by High Court–High Court after re-casting issue on bona fide remanded case for fresh trial–Validity—Issue relating to bona fide have already been framed, parties were alive of that specific point and led evidence in support and rebuttal of the same–Nonframing of issue or wrong framing of issue would not justify remand of case–Onus of proof of issue was immaterial when both contending pal-ties were alive to subject-matter of specific issue and had led evidence in support of their respective contentions–Counsel for tenant could not point out as to how it was necessary for appellants (landlords) to prove bona fides so far as facturn of sub-letting of rented property and making alteration in structure of the same was concerned–High Court, thus, committed error by ordering denovo trial of issue which was re-casted–Impugned judgment of High Court was set aside while order/passed by Rent Controller as affirmed by District Judge was restored. PLJ 2001 SC(AJK) 327 PLD 1998 Lah. 431; NLR 1983 CLJ 59; 2001 SCMR 577; 2001 SCMR 664; PLD 1980 SC 206 ref

Court Decisions
Acceptance of appeal by appellate Court–Restoration of order of Rent Controller in Constitutional petition–Challenge to–It is admitted that appellant landlord had vacated previous premises about six months prior seeking ejectment of respondent–District Judge has not adverted to question of bona-fides of appellant at all while reversing findings of Rent Controller, despite fact that moot point in case was `good faith’ of landlord; have statement of landlord to effect that he needed shops for running his own business did not prove requirement of law–Held: Landlord was not entitled to relief prayed for, even he was in genuine need for running his own business in shops in dispute–Appeal without force is according dismissed. PLJ 1998 SC (AJ & K) 75 Dismissal by Rent Controller, order reversed in appeal–Whether could be challenged through constitution petition–Question of–District Judge has given no reasons which led him to reverse findings of Rent Controller–It is now settled principle of law that if order of Special Tribunal or forum is based on no evidence, or it suffers from patent mistake or order has not been passed keeping in view relevant provisions of law, that is open to review in Constitutional jurisdiction of High Court. PLJ 1998 SC (AJ & K) 75

Co-Sharer

Possession of one co-sharer on every inch of land is for the benefit of other co-sharers and if the mutation had been attested in favour of some of the co-sharers, that would not extinguish the title of the other co-sharers. Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 rel. 2003 Lawvision 107 = PLD 2003 Lahore 186

Remedy against co-sharer in possession—Person acquiring possession of immovable property at the very inception as co-owner could not be dispossessed from the same without proper partition and a decree/order of a competent Court in that regard. 2002 Lawvision 148 = 2002 MLD 434

Co-sharer–Case poof–High Court declaring that petitions suit should have been decreed to extent f his share in suit land which was in his possession as “Hissadar” through family arrangement which is always subject to regular partition–Held : No infirmity in conclusion reached by learned High Court which is based on proper appraisal f revenue record placed on file–Leave to appeal refused. PLJ 1997 SC 985

Declaration that respondents being co-sharers, were owners–Suit for–Dismissal of suit–Suit decreed in appeal and affirmed by High Court–Challenge to–First Appellate Court and learned Judge in Chambers did not agree with conclusion of Trial Court mainly for reason that order dated 5.4.1938 whereby share of land of respondents’ predecessor was resumed, was void order having been passed without affording him on opportunity of hearing–Predecessor of respondents, though aware, never challenged validity of said order and entry in revenue record remained unchallenged for over 45 years although he remained alive for 40 years after passing of said order–No objection was taken by their predecessor over successive transfers of half share each to legal heirs of his two brothers to his exclusion–He also did not raise any objection when land in dispute was transferred by Government to his two brothers in equal share in 1966–Held: Conclusions of First Appellate Court and learned Judge in Chambers that order dated 5.4.1938 was void, are not sustainable in law. PLJ 1994 SC 265

Declaration–Suit for–Suit and appeal dismissed by trial Court and by appellate Court–Challenge to–1f share of respondent No.1 has been increased from L/10 to 2/10 share, then there must be some explanation for that as to how it so happened–Record of case is destitute of material to explain this enigmatic position–Held: Question as to how share of respondent No.1 has increased without affecting shares of other co-owners, must be answered positively and share of each share-holder must also be determined to ensure extent of share of present, petitioner in terms of measurement of land–Case remand. PLJ 1994 Peshawar 57

Pre-emption–Suit for–Suit decreed and decree affirmed in appeal–Challenge to–Whether respondent No.1 was not co-sharer in disputed land–Question of–Disputed property was sold by respondent No.2 out of joint khata which remained subject to pre-emption notwithstanding its partition through consolidation proceedings–Consolidation operations do not disturb pre-existing rights–After decree is passed in favour of pre-emptor, he can chase land allotted to judgment-debtor during consolidation proceedings in lieu of pre-empted land–Held: Respondent No.1 became co-owner in joint khata immediately on death of husband of respondent No.2 which had taken place before sale of disputed land, and mere fact that he was not recorded as co-owner in revenue record did not make any difference–Appeal dismissed. PLJ 1994 Lahore 293 PLD 1973 Lahore 637 and PLD 1967 Lahore 1171 rel.

Suit for possession by predecessor-in-interest of respondents–Suit decreed by trial court but dismissed by first appellate court–Dismissal order set aside by High Court–Challenge to–Additional District Judge simply dismissed suit filed by predecessor-in-interest of respondents on ground that he had not impleaded other co-sharers as defendants in his suit–No doubt that suit land is an undivided property and donor alienated his undivided share on basis of gift deed and sale-deeds–Held :Suit filed by predecessor-in-interest of respondents could not have been dismissed and proper course would have been to grant decree for joint possession in his favour–Appeal dismissed. PLJ 1996 SC (AJK) 165

which was not done–Held: All proceedings were conducted by respondent No.2 and respondent No.3 against recognised norms of law and decree should have been set aside by Court below–Appeal accepted. PLJ 1992 AJK 59

Costs- —-Ejectment application–Closure of petitioner’s evidence for non-payment of costs–Challenge to–Rent Controller is free to evolve his own procedure for disposal of eviction petition and can follow enabling provisions of C.P.C. or principles contained therein–However, being a persona designata, governed by a special statute, Rent Controller had no jurisdiction to impose costs while allowing petitioner’s application for production of additional evidence–Held: Part of impugned order imposing costs, is clearly without jurisdiction and hence a nullity in eye of law–Petition accepted. PLJ 1994 Lahore 96

Recovery of money–Suit for–Closing of evidence–High Court providing one opportunity to produce evidence subject to payment of exemplary costs–Challenge to–Power of awarding exemplary costs purports to have been exercised either under Section 35 or 35-A of C.P.C., but such power is not available to High Court–Under Section 35 C.P.C., only actual costs incurred by a litigant can be awarded and counsel fee could be allowed if certificate to that effect is given by counsel–No such certificate was given by counsel in this case–It is laid down in Order XVII Rule 1(2) of C.P.C. that while granting time to parties, court may make such orders as it thinks fit with respect to costs–Held: Costs have been fixed after keeping in view previous adjournments and delay caused due to belated filing of revision petition which are relevant, but costs of Rs. 12,000/- seems to be excessive–Costs reduced to Rs. 3,000/- PLJ 1996 SC (AJK) 25

Co-Sharer–Interest and Possession to joint property–Whether a co-sharer is entitled to evict a trespasser from whole of it, without impleading all co-sharer–Question of–Since a co-sharer’s interest and possession extends to entire joint property, he is entitled to evict a trespasser from whole of it–Co-sharer is undoubtedly entitled to maintain a suit for ejectment against trespasser without impleading all co-sharer. PLJ 1998 Peshawar 166

It was contended by learned counsel for respondents that by their absence from partition proceedings, petitioners had forfeited willingly their rights to question validity of order passed by A.C–Even if petitioners were absent in partition proceedings, any mode of partition prepared by Revenue Officer Halqa was appealable within 30 days by any of aggrieved co-sharer–Absence of co-sharers from partition proceedings cannot in any way absolve Revenue Officer Halqa from his laid down duty–Order of AC was, therefore, patently bad in law whereby he allowed partition of land on basis of wandas prepared by respondents–District Collector and Additional Commissioner, therefore, fell in error by upholding order which was legally infirm–Orders of D.C/Collector and Additional Commissioner are, therefore, set aside and case is remanded to A.0 for decision afresh within two months after hearing parties. PLJ 2001 Revenue 62

Joint Khata–Co-sharer exchanged land from joint khata with stranger–Effect–Co-sharer in possession of a portion can transfer that portion subject to adjustment of the rights of other co-sharers therein at the time of partition–Other co-sharer’s rights would be sufficiently safeguarded if they are granted decree by giving them declaration that provisions of transferee in lands in question would be that of co-sharers subject to adjustment. PLJ 2002 Lahore 1335

Possession of one co-sharer on every inch of land is for the benefit of other co-shares–Where mutation had been attested in favour of some of co-sharer, same would not extinguish title of other co-sharers. PLJ 2003 Lahore 40

Possession of one the co-sharer to benefit of all co-sharers PLJ 2002 Lahore 1770
Possession of some of co-sharers being joint would annure for the benefit of all co-sharers. PLJ 2002 Lahore 1204

Word `co-sharer’ denotes a person who holds an existing joint interest whether absolute or limited in an undivided property–Co-sharer signifies persons owning a share or share in whole of property or property of which or other sharers were subject to sale–Co-sharer whatever interest of his in joint property may be is a co-owner in every inch of that property to extent of his share until partition takes place which he can claim as a matter of right. PLJ 2001 Lahore 564

Co-sharer in exclusive possession of a specific portion of a joint property cannot alienate, transfer or change the same unless a regular partition takes place between the co-sharers. PLJ 2004 Lahore 971

Co-sharer is always deemed to be in possession of land jointly owned by cosharers—Suit filed by plaintiff was thus, neither hit by provisions of S. 42 of Specific Relief Act nor by provisions of Limitation Act 1908–Trial Court by mis-reading evidence on record had non-suited plaintiffs–Appellate Court had rectified such error by decreeing plaintiffs suit–No illegality or irregularity was committed by Appellate Court so as to justify interference in revisional Jurisdiction. PLJ 2003 Lahore 791

Co-sharer–A co-sharer in a joint immovable property is deemed to be interested in every inch of such property and cannot be allowed in’ a manner, which constitutes an invasion on the rights of other co-sharers. PLJ 2004 Lahore 971

Co-sharer–A co-sharer in possession of a portion of joint property cannot change nature of property in his possession unless partition takes place by metes & bounds. PLJ 2004 Lahore 971

Co-sharer–Persons purchasing land from a co-sharer do not stand in a better position than that of their vendor and such sale would always be subject to adjustment at time of partition. PLJ 2004 Lahore 971

Dispossession–Co-sharer when dispossessed has two remedies; one, a suit for separate possession by partition and second, suit in accordance with terms of S. 9 of Specific Relief Act, 1877. PLJ 2004 Lahore 369

Entitlement–Each co-sharer in owner in every part of joint holdings to the extent of his entitlement–Any co-sharer cannot be permitted to change character of land to the exclusion of other co-sharers without resort to some lawful partition proceedings. PLJ 2004 Lahore 943

Plaintiffs had purchased land in question, from co-sharer who was in exclusive possession of same and to the extent of his share in joint Khata–Co-sharer can validly transfer his share in joint Khata and can lawfully deliver possession of specific piece of land in his possession to vendee–Vendee being in actual physical possession of specific piece of land, had validly alienated same in favour of respondent. PLJ 2003 Lahore 798

Specific field numbers in possession of vendor due to family arrangement–Transfer of such property in favour of vendee and possession delivered to him on basis of such transfer debars other co-sharers to get back such possession or challenge sale–Such right, however, would be subject to adjustment at the time of partition. PLJ 2004 Lahore 1732

Plaintiffs being co-sharers, to the extent of specific land in their possession, they could not be dispossessed therefrom except in due course of law–Defendants have option to more proper forum for redressel of their grievance and can get land partitioned by metes and bounds–If in partition proceedings, appellants fail to get any share, Authorities concerned would hand over entire gifted land to defendants. PLJ 2003 SC (AJ&K) 17

Private partition of joint property–Documents on record showed that property in question was joint between parties–Parties to suit being co-sharers were entitled to get the same partitioned–Simple statement of one co-sharer that private partition of property was taken place in 1995, cannot be deemed to be admission and conclusive proof of the fact that property had already been privately partitioned between them. PLJ 2003 Lahore 753

Possession of one co-sharer on every inch of land is for the benefit of other co-sharers and if the mutation had been attested in favour of some of the co-sharers, that would not extinguish the title of the other co-sharers. Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 rel. 2003 Lawvision 107 = PLD 2003 Lahore 186

Remedy against co-sharer in possession—Person acquiring possession of immovable property at the very inception as co-owner could not be dispossessed from the same without proper partition and a decree/order of a competent Court in that regard. 2002 Lawvision 148 = 2002 MLD 434

Possession of one co-sharer on every inch of land is for the benefit of other co-sharers and if the mutation had been attested in favour of some of the co-sharers, that would not extinguish the title of the other co-sharers. Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 rel. 2003 Lawvision 107 = PLD 2003 Lahore 186

Court Decisions
Punjab Pre-emption Act : — State Government of Bahawalpur Notification No. 74, dated 12-6-1944—Grant of land in the area of former Bahawalpur State, by the Government under the statement of conditions defined by S. 10, Colonization of Government ands (Punjab) Act, 1912 which provided that the grantee was to remain as Government tenant till the final payment of stipulated installments and till then the Government was to remain as owner—Grantee, in the present case, had only paid a few installments when he proposed to sell the said land—Necessary permission under S. 19, Colonization of Government Lands (Punjab) Act, 1912, however, was obtained by the grantee—Pre-emption suit with regard to such sale was decreed by the Trial Court but in second appeal the pre-emptors were non-suited—Validity—Held, so long as the property in colony area was owned by the Government and not be a private party, any transaction made under S. 19, Colonization of Government Lands (Punjab) Act, 1912 would not be pre-emptible—Owing to non-withdrawal by the Government of Punjab of the Notification No. 74 dated 12-6-1944 issued by the Government of Bahawalpur, the land in colony area falling within the ambit of Colonization of Government Lands (Punjab) Act, 1912 remained non-pre-emptible . PLD 2003 SC 588

Constitutional’ petition to enforce implementation of provisions of Companies (Appointment of Legal Advisers) Act 1974, whereby every company was required to appoint at least one Legal Adviser on partnership to advise such company in performance of its functions and discharge of its duties in accordance with law. Colonization of Government Lands (Punjab) Act, 1912 (Vofl912)Contd. Provision of S. 7 of Companies (Appointment of Legal Advisers) Act 1974, provides remedy for non-compliance with the provisions of the Act, however, Sub-Section (2) S. 7 of the Act rendered such situation in adequate by making such action dependent upon the discretion and will of some individual officers, which was evidently missing from present case where no such report has been submitted. Constitutional petition could not be allowed in such circumstances. Respondent were however, directed to carry out complete survey to detect cases of non-compliance with requirements of relevant Act i.e., those cases in which Advocate as defined in companies (Appointment of Legal Advisers) Act 1974 has not, been appointed as Legal Adviser and to register cases in competent Courts in case of violation. Report of Action taken was directed to be submitted to High Court within three months.-P.L.J.2000 Kar. 142

https://www.lawandlawyers.com.pk/ – CONTENTSCourt Decisions
Whether suit land is exempt from pre-emption. Notification issued U/S. 3, of Government Tenants (Punjab) Act 1893 was applied to Chak No. 4 where suit land is situated. Subsequent acquisition of proprietary rights did not exclude application of Colonization of Government Lands Act, 1912 and notification under Section 8(2) of Act 1913 unless application of 1912 Act was specially excluded under Section 5 thereof. At time of sale of suit land, Colonization of Government Lands Act was appealable and by virtue of Notification, -its sale was exempt from pre-emption.-P.L.J.1994 Lah. 439 == 1994 MLD 791

Court Decisions
Land Rev. Act, 1967, Record of Co¬operative Society shows that petitioner was nominee of his father (deceased allottee) Petitioner cannot invoke ineligibility of his father for allotment of land in dispute as latter was owner of more than 4 acres because he never brought this fact to notice of relevant authorities at time when his father had allegedly abandoned tenancy. Rev. record shows that petitioner and respondent No. 1 had been Jointly cultivating land in dispute for several years’ after death of their father. There is no illegality or irregularity in concurrent findings of Courts below. P.L.J.1994 Rev. 7
It is agreed that in Colony matters, shoddy transactions between lower Rev. staff and Colonization of Government Lands (Punjab) Act, 1912 Interested parties can only be scrutinized with help of persons like petitioner who have some knowledge thereof and come forward to help State not only to protect its interest but also rights of people. However, in this case, every care has been taken to consider various aspects of genuine requirements of villagers and to decide matter accordingly in consultation with them. Petitioner has not been able to show that he is supported by villagers regarding reservation of certain land for public purpose. There was no irregularity or illegality in concurrent findings of Courts below. P.L.J.1994 Rev. 13.

Direction for review was issued by Board of Rev. to Commissioner after consideration of Inspection Report submitted by Audit Party. Most important point is first to see whether petitioner had been fulfilling conditions on which earlier land had been given to him and had qualified for proprietary rights. If he was not doing so, he would not be entitled for alternate land. Impugned order shows that allotment file was incomplete and even resumption order of original lease is not available on file. No verification had either been made regarding eligibility of allottee to get alternate land. These reasons are sufficient to review allotment of alternate land because Board’s instructions have been violated. P.L.J.1994 Rev. 1.

Petitioners were alleged to be in cultivating possession of suit land since 1948-49 but it has not been satisfactorily explained as to why they took about 40 years in becoming members of Co-operative Society. Contention that it was duty of Co-operative Society to make them members, does not carry much weight. Both cases suffer from glaring defect that no allotment was ever made in favour of petitioners and no approval of such allotment was ever granted by District Collector.- P.L.J.1994 Rev. 4

Direction for review was issued by Board of Rev. to Commissioner after consideration of Inspection Report submitted by Audit Party. Most important point is first to see whether petitioner had been fulfilling conditions on which earlier land had been given to him and had qualified for proprietary rights. If he was not doing so, he would not be entitled for alternate land. Collector found that some fictitious person had managed to get alternate allotment in name of original allottee. Original orders of allotment were not available on file and eligibility for proprietary Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)Contd. rights had also not been verified. Allotment was found to have been made in utter violation of instructions, policy and procedure prescribed by Board of Rev. and courts below have not transgressed authority vested in them. P.L.J.1994 Note 27 at p. 17.
Constitutional’ petition to enforce implementation of provisions of Companies (Appointment of Legal Advisers) Act 1974, whereby every company was required to appoint at least one Legal Adviser on partnership to advise such company in performance of its functions and discharge of its duties in accordance with law. Colonization of Government Lands (Punjab) Act, 1912 (Vofl912)Contd. Provision of S. 7 of Companies (Appointment of Legal Advisers) Act 1974, provides remedy for non-compliance with the provisions of the Act, however, Sub-Section (2) S. 7 of the Act rendered such situation in adequate by making such action dependent upon the discretion and will of some individual officers, which was evidently missing from present case where no such report has been submitted. Constitutional petition could not be allowed in such circumstances. Respondent were however, directed to carry out complete survey to detect cases of non-compliance with requirements of relevant Act i.e., those cases in which Advocate as defined in companies (Appointment of Legal Advisers) Act 1974 has not, been appointed as Legal Adviser and to register cases in competent Courts in case of violation. Report of Action taken was directed to be submitted to High Court within three months.-P.L.J.2000 Kar. 142:

Jinnah Ababdis Act, lhata measuring about 19 Marlas. Allotment under Jinnah Abadis Act. Cancellation of allotment. From record it appears that lhata was reserved as Dera Deh Attiadaran and not for girls primary school as contended by petitioner. Change of classification in consultation with Education Department appears to be circumvention of legal requirements. Case was rightly remanded by Additional Commissioner. Application of petitioner for allotment of lhata under Jinnah Abadis Act is also irregular firstly because that Act cannot be applied to regular lhatas in Colony Chaks and secondly allotment cannot be for more than 7 Marlas under Section 3 of Act. Impugned order has been made on valid grounds and does not call for any intervention.-P.L.J.1994 Rev. 10.
Alternate land–Allotment to Chashma Barrage affectee–Cancellation of allotment on verification—Challenge to–Total entitlement of predecessor of petitioners works out to 15 Kanals and 2 Marlas out of which 4 Kanals, 5 Marks is Chahi, 8 Kanals, l Marla is Sailab and 2 Kanals, 3 Marlas in Ghair Mumkin–She was, thus, not eligible for allotment of alternate land–Point regarding territorial jurisdiction of D.C/Collector having not been raised before Commissioner in appeal, cannot be raised at revisional stage–There is no time limit for suo mow review by a Revenue Officer under Section 163 of Land Revenue Act–Held: Revision petition is found without any merit–Petition dismissed. PLJ 1993 Revenue 58

Court Decisions
Grant of State land. Essentials. Board of Rev., subject to approval of Government, could .grant State land to any person on such conditions which it considered fit or under any scheme prepared for such purpose. Government or Board of Rev. had power and authority to change, modify or cancel such statements of conditions issued and scheme made for purpose of allotting State land or granting proprietary rights over same to tenants. Such power of Government/Board of Rev. was also recognized by S. 20, West Pakistan General Clauses Act, 1956. P.L.J.1997 Lah. 1584 = 1997 CLC 1146^ NLR 1997 Rev. 116.

“Mueen lhata” was initially allotted to petitioner by Assistant Commissioner. Board of Rev. in revision, however, found that petitioner being landowner could not be allotted “Mueen lhata”. Petitioner instead of applying for allotment of “Abadkari lhata” filed Constitutional petition which was dismissed on the ground that petitioner being landowner was not entitled to allotment. Board of Rev. was right in holding that lhata in question could not have been allotted to petitioner. Petitioner’s contention that Board. of Rev. acted illegally in allowing revision of respondent without noticing that his appeal was barred by time; such contention was neither raised before Board of. Rev. nor before high Court. High Court, however, in its order had found that delay in filing appeal had been condoned- by Additional. Commissioner and dismissed appeal on merits. P.L.J.1997 SC 429 = 1996 SCMR 1379.

Board of Rev. by canceling exchange deed without any notice or intimation to appellant had violated principles of natural Justice and High Court by upholding order of board of Rev., had also trampled the said principles. Where any person or body of persons was empowered to .take decision particularly disposing of controversy which had definitely affected prejudicially the person, property or right of another person, in absence of any express words in enactment giving such power even excluding application of principles of natural Justice, Courts of law, were to imply that power so given was coupled with duty to act in accordance with principles of natural Justice. Orders passed by Board of Rev. without either impleading appellants as a party or hearing them, could not be upheld.-P.L.J. 2000 SC 859.

Temporary cultivation scheme:–Board of Revenue had absolute discretion in grant of Proprietary rights and selection of grantees. And No person could be treated as tenant, unless he had taken possession of state land with permission of Collector. 2004 C L C 108 + PLD 2003 Kar. 237
Request of lessee for grant of proprietary rights in respect of land leased out to him under Temporary Cultivation Scheme, was finally turned down on the ground that land in question being Charagah land, proprietary rights for such land was not permissible under the policy of Board of Revenue— grant of proprietary rights to the lessees, was governed by the policy framed by the Board of Revenue on the subject—No Policy of Board of Revenue existed under which proprietary rights of Charagah lands could be granted to the lessees and grant of proprietary rights for Charagah lands had been specifically prohibited as such lands were required for public purpose. 2004 C L C 215

Allotment of land to army officer:– Notification for allotment of disputed land was issued in favour of appellant who was an army officer while the land had already been allotted to the respondents —High court in exercise of constitutional jurisdiction set aside the notification issued in favour of the appellant on the ground that the land was not available for allotment as the same had already leased out after completion of all mandatory formalities as enumerated in the Notification No. 3369/67-198-C. 1.1., dated 7-2-1968, could not have been declared as “land available”, hence the question of its further allotment without getting the same cancelled could not arise—respondents were admittedly landless tenants to whom land was leased out in accordance with the then prevalent policy and physical possession was also handed over to them which could not have been cancelled by one stroke to pen without affording them proper opportunity of hearing as envisaged in Para. 23 of Notification No. 3369/67-198-C.1.1., dated 7-2-1968— Issuance of notification of allotment in favour of the appellant was in violation of the principles of natural justice, fairplay and equity. P L D 2004 SC 271

Land located in prohibited area/limits-No concept of grant of proprietary rights to lessees under Temporary Lease Scheme-Land was liable to be resumed after death of original lessee and same was not liable to be extended beyond period of lease for which same was granted, PLD 2003 Revenue 5

Cancellation of lease:– Plea of petitioner was that he was not provided opportunity of hearing prior to cancellation of lease; and that Government had lost its rights over the land after its acquisition by Karachi Development Authority and then its allotment to petitioner by the Authority on further payments towards allotment—No agreement fro acquisition of such land by the Development Authority or provision of law applicable thereto had been pointed out—No person could be treated as a tenant, unless he had taken possession of land with permission of the Collector—Petitioner had been in possession of land since 1964, thus, Karachi Development Authority could not be treated as tenant of Government at any time thereafter—Karachi Development Authority had neither acquired such land as owner not could be treated as tenant of Government in respect thereof—petitioner could not transfer any interest in land without written consent of commissioner in view of statutory embargo created by S. 19 of the Colonization of Government Lands (Punjab) Act, 1912—Lease in favour of petitioner could be terminated only after service of mandatory notice under S. 24 of the said Act—High Court accepted constitutional petition, declared impugned order to be without lawful Authority and of no legal effect while leaving open to Government to take appropriate action against petitioner for having violated terms of tenancy. PLD 2003 Kar. 237

Pre-emption Act:– Grant of land in the area of former Bahawalpur State, by the Government under the statement of conditions defined by S. 10, Colonization of Government ands (Punjab) Act, 1912 which provided that the grantee was to remain as Government tenant till the final payment of stipulated installments and till then the Government was to remain as owner—Grantee, in the present case, had only paid a few installments when he proposed to sell the said land—Necessary permission under S. 19, Colonization of Government Lands (Punjab) Act, 1912, however, was obtained by the grantee—Pre-emption suit with regard to such sale was decreed by the Trial Court but in second appeal the pre-emptors were non-suited—Validity—Held, so long as the property in colony area was owned by the Government and not be a private party, any transaction made under S. 19, Colonization of Government Lands (Punjab) Act, 1912 would not be pre-emptible—Owing to non-withdrawal by the Government of Punjab of the Notification No. 74 dated 12-6-1944 issued by the Government of Bahawalpur, the land in colony area falling within the ambit of Colonization of Government Lands (Punjab) Act, 1912 remained non-pre-emptible.PLD 2003 SC 588

Grant of land to four allottees Jointly–All the four allottees had to Jointly develop land in question, and if there was any breach or infringement of a condition or any compliance or negligence or lapse on the part of the grantees, in making the land cultivable (as a condition of grant) they were all to be Jointly responsible for the same-Deletion of names of two persons from such grant without show-cause notice to them was not warranted in circumstances. 1995 M L D 45

Mode of transfer-Mere statement of vendor made about purported sale before Revenue Officer would not amount to irrevocable transfer of property-Where sanction for transfer under provisions of Colonization of Government Lands (Punjab) Act, 1912 was obtained but no transfer deed was executed, there would be room for the transferor making denial of such transfer and in that event sanction of mutation was not proper although transferee could seek remedy in Civil Court-Even where decree for specific performance of contract was awarded, title of property would remain vested in alienor, till such time, regular sale-deed was executed and registered in favour of alienee. 1995 M L D 45
Waryam Khan v. Ghulam Muhammad PLD 1959 W.P. (Revenue) 87; Dula and others v. Shahab Din PLD 1959 W.P. (Revenue) 103 and Muhammad Ishaq v. Muhammad Siddique PLD 1975 Lah. 901’rel,

Record showed that land in question, was never transferred in the name of Housing Society for the same was still shown as State land. Proper forum for adjudication of dispute relating to such “lhata” was not Civil Court but Collector. Neither plaintiff nor respondent, have title over land/Ihata in question. Plaintiff had admitted that predecessor-in-interest of defendants was put in possession by him and thus, both parties were in possession and have constructed their house thereon while no title vests in them. “lhata” in question, being State land order of dismissal of plaintiffs’ suit by Appellate Court did not suffer from any illegality or infirmity. P.L.J.1999 Lah. 418 = 1999 CLC 1511.

Horse breeding tenancy is not heritable tenancy, however, after the death of lessee with a good horse/mare breeding record, tenancy should be allotted to heirs of deceased in preference to any other applicant. No heir would become entitled to allotment after death of original breeder merely because of his claim of inheritance; good record of up-keep of horse/mule is, however, a condition precedent. Nomenclature of such scheme would show that scheme is primarily meant for remount breeding and good record of up-keeping of animal was sine qua non for any claim for its allotment.
Where two sons of last allottee claimed horse breeding tenancy of their father in ignoring eldest son of last tenant, District Remount Officer had given weighty reasons and had recommended, younger son (respondent) as “sarbrah” on grounds which were supported by record. Neither in body of petition nor in argument, any material had been brought to dislodge finding of fact arrived at which had been maintained by commissioner in appeal and Board of Rev. in revision. Selection of tenants being in discretion of Provincial Government, High Court could not substitute ‘ . its findings with finding of Tribunal of competent Jurisdiction unless order in question, was shown to be corum-non-Judice or had been passed in derogation to law and relevant rules. P.L.J.2000 Lah. 177 = 2000 MLD 1097

Lambardari Grant:– Claim relating to conferring of proprietary rights over State land. Lambardar (petitioner) claimed that some Lambardars had been conferred proprietary rights over land which they were holding as Lambeiardars while he had been deprived of .such right in contravention of equal treatment and equal protection of law guaranteed to all citizens of Pakistan. Documents on record produced by petitioners indicated that allottee Lambardars were allotted land under old Lambardari Grant Scheme whereas petitioner was allotted land under Pedigree Livestock Breedings Scheme. Proprietary rights having not been conferred to any one of latter category of Lambardars, there was no question of discrimination. Petitioner’s claim to proprietary right was not established. Court, however, desired that those Lambardars who were in cultivating possession of State land for over quarter of century, should be considered for conferring of proprietary rights. P.L.J.1997 Lah. 1584 = 1997 CLC 1146 = NLP 1997Rev. 116.

Conferment of proprietary rights. Appellant approached authorities for conferment of proprietary rights; his application was disallowed by hierarchy in concerned Rev. Department. Writ petition was also not entertained. Leave to appeal was granted to consider if clause (3) and (4) of Scheme are read together, whether lessee can have proprietary rights upto subsistence holding notwithstanding bar contained in sub-clause of clause (4) of scheme. Learned Judge in chambers of High Court, while dismissing writ petition, has not properly followed provisions of clauses (3) (4), (5) and (8) of scheme and thus was fallen into error to decline relief to appellant. Order passed by respondents are quashed. They are directed to confer upon appellant proprietary rights in land upto a subsistence holding in accordance with Temporary Cultivation Scheme. P.L.J.1997 SC 1421 = PLD 1997 SC 294 = NLR 1997 Rev. 81.
Original allotment order of Land in question was in name of predecessor of respondents–Petitioner predecessor got entry of allotment by interpolation in his own name by fraud, fabrication and forgery of record-Such fact was noted in his report by Extra-Assistant Commissioner, Deputy Commissioner and Commissioner but they did not rectify record-Mere lapse of time and inaction on the part of predecessor of respondents would not have deprived or denuded Authorities of power to rectify their own record by taking “corrective and remedial steps and undo injustice-Board of Revenue being at the apex of statutory hierarchy, exercising revisional jurisdiction had justifiably exercised its jurisdiction intervening events would not alter reality- PLD 2003 Lah.45
Bara Reclamation Scheme having been promulgated on 12.12.1945, envisaging conferment of proprietary rights over half of reclaimed area allotted under Scheme-¬Period of 8 years was given for bringing barren land under plough” Allotee applied for conferment of proprietary rights in 1960, contending that he had fulfilled conditions under Scheme-Original Scheme did not contain any concept of prohibited limits-If petitioners Scheme had been processed, with reasonable speed, same would have been completed long before establishment of Town committee concerned, bringing land under prohibited zone-District Collector was directed to process petitioners case for conferment of proprietary rights in accordance with law to the extent of their share, PLD 2003 Revenue 8

Transfer/alienation of tenancy rights – Tenants holding state land under different Schemes would not fall in ambit of S. 19 of Act of 1912, to seek transfer of tenancy right unless Government in Colonies Department had issued statement of Conditions entitling tenants to be eligible for conferment of proprietary rights,
Transfer of tenancy rights under S. 19 of Act of 1912 is different from sale after obtaining full proprietary rights in & tenancy-Rejection of petition for transfer of rights on the ground that same was intended to defeat realization of Government dues on transfer, needs reconsideration in that. Government dues on transfer at the time of conveyance deed would have to be paid by purchaser however, requiring tenants or their legal heirs to first acquire proprietary rights, get conveyance deed executed and then transfer tenancy rights through registered deed, would defeat object for which S. 19 was provided in Act of 1912-Tenant can seek transfer of tenancy at any time after declaration of eligibility for conferment of proprietary right without even payment of any cost of land or at any stage thereafter, as be comes to acquire right and vested interest in tenancy at the time he was declared eligible for conferment of proprietary rights from a particular date. PLD 2003 Revenue 10

Death of lessee in midst of period of lease-No order of transfer of possession having been passed under S. 10(4) of At of 1912, possession of petitioner for left over period of lease cannot legitimize his possession-Collectors order of resumption of land from petitioner on account of being an unlawful occupation was maintained, PLD 2003 Revenue 5

Ejected Tenants Scheme-Allotment of State land to predecessor of parties-Entitlement to allotment of land after death of original allottee – Tenancy under Ejected Tenants Scheme had to devolve on heirs of deceased allottee provided they did not cultivate any other area in life time of original allottee ; family lived on allotted area; and no other land was acquired by them-All legal heirs were thus, equally entitled to inheritance of deceased allottee-Two sons of original allottee claimed that they had been cultivating land in question, and paying Government due during their fathers life time and were entitled to allotment of same to exclusion of other heirs-Their such request was turned down; they were entitled alongwith other heirs to their share of inheritance, PLD 2003 Revenue 1.

Auction of State land ¬Government not accepting bid in question Bidder depositing installments at his own behest and taking possession of land in question Where a functionary of the Government without approval of Government had delivered possession of land in question, that would not bind the Government and plea of estoppel could not be raised Acceptance of deposit on bidder’s own behest and not on demand of Government, on condition that if Government did not confirm the sale then bidder would have no claim over land in question such conditional deposit subject to acceptance by Government could not constitute estoppel. 1994 S C M R 30
Mueen Ihata was initially allotted to petitioner by Assistant Commissioner–Board of Revenue in revision, however, found that petitioner being landowner could not be allotted “Mueen Ihata Petitioner Instead of applying for allotment at’ ‘AIadkari Ihata” filed Constitutional petition which was dismissed on the ground that petitioner being landowner was not entitled to allotment–Board of Revenue was right in holding that Ihata in question could not have been allotted to petitioner–Petitioner’s contention that Board of Revenue acted illegally in allowing revision of respondent without noticing that his appeal was barred by time, such contention was neither raised before Board of Revenue nor before high Court–High Court, however, in its order had found that delay in filing appeal had been condoned by Additional Commissioner and dismissed appeal on merits—Leave to appeal refused. I’LJ 1997 SC 429
Horse breeding tenancy- Allotment of land comprised in such tenancy–Mode of allotment—Horse breeding tenancy is not heritable tenancy, however, after the death of lessee with a good horse/mare breeding record, tenancy should be allotted to heirs of deceased in preference to any other applicant–No heir would become entitled to allotment after death of original breeder merely because of his claim of inheritance; good record of up-keep of horse/mule is, however, a condition precedent–Nomenclature of such scheme would show that scheme is primarily meant for remount breeding and good record of up-keeping of animal was sine qua non for any claim for its allotment. P12 2000 Lahore 177
Entitlement to grant of proprietary rights–Government allowed grantees under Bara Reclamation Scheme to purchase Government share also alongwith other land provided they were in possession of Government share (Wanda Sarkar) since 1987–Petitioners had been deriving benefit from land in question, for the period the same remained with them since 1987 on payment of usual rent and not competitive rent after expiry of initial period of two years–Even otherwise, petitioners case was hit by condition No. 2(a) and 2(b) of Notification of specified date–Claim of petitioners for grant of proprietary rights, therefore, does not have any force in it and same was dismissed–Collector may, however, consider petitioner case for grant of alternate land, if they were otherwise eligible. PLJ 2003 Revenue 17
Case of respondents both on account of having sold portion of their share of Bara Land as also having failed to continue to hold Government share (Wanda Sarkar) with them was not covered under Policy instructions dated 17.5.1992–Respondents, were, thus, not entitled to purchase of Government share (Wanda Sarkar) which was ordered to be resumed from petitioners who had purchased same from respondents. PLJ 2003 Revenue 17
5 years Temporary Cultivation Lease Scheme–Lessee having died. during continuance of lease period, petitioners being legal heirs did not apply for transfer of lease for un-expired period in their names–Petitioners subsequent application for grant of proprietary rights or continuance of lease was repelled in view of no-portion of land having been brought under plough by original lessee or his legal heirs for the period, when possession of land was taken back from him formally on resumption in favour of state–No case was, thus, made out for conferment of proprietary rights or continuance of lease–Mere continuance to hold land despite rejection of plea of petitioners for transfer of tenancy in their names as legal heirs does not provide any strength to case of petitioners–Land has to he validly hold by tenant for consideration of his case for conferment of proprietary rights under the scheme. PLJ 2003 Revenue 22 [P. 22] A
Original allotment order of Land in question was in name of predecessor of respondents–Petitioner predecessor got entry of allotment by interpolation in his own name by fraud, fabrication and forgery of record–Such fact was noted in his report by Extra-Assistant Commissioner, Deputy Commissioner and Commissioner but they did not rectify record–Mere lapse of time and inaction on the part of predecessor of respondents would not have deprived Or denuded Authorities of power to rectify their own record by taking corrective and remedial steps and undo injustice–Board of Revenue being at the apex of statutory hierarchy, exercising revisional jurisdiction had justifiably exercised its jurisdiction intervening events would not alter reality–Finding of Board of Revenue, would not warrant interference. PLJ 2003 Lahore 45
Constitutional petition–Petitioner submitted, application in obedience to public notice to respondents for allotment of plot along with specified amount which was rejected by respondents authority-Constitutional petition to the extent of allotment of plot was not sustainable. in the eye of law–Respondents however, were obliged to inform petitioner immediately that he was not entitled for allotment of plot in view of cabinet decision–Petitioner, thus, has been penalized by the in action of the Government–Respondents were directed to return specified amount deposited by petitioner alongwith profit at the rate of 15 per cent per annum. PLJ 2002 Lahore 1663
Fifteen years lease Scheme–Lessee of land in question applied for acquiring proprietary rights which were refused by Revenue hierarchy–Lessee’s suit for his entitlement of purchase proprietary rights was decreed by Appellate Court–Plaintiff’s plea that question involved in appeal was decided in earlier round of litigation was not correct–Civil Court in earlier round of litigation had found that letter of Board of Revenue refusing to grant proprietary rights relating to land in question did not affect lease hold rights which were created prior to issuance of those letters–Present controversy relating to entitlement to purchase proprietary rights would not be affected by earlier judgment of Civil Court- PLJ 2002 Lahore 1832
Entitlement to purchase proprietary rights–Appellate Court while decreeing plaintiffs suit did not correctly appreciate letters of Board of Revenue whereby suit land was reserved for Military Personnel–Impugned judgment and decree was thus not sustainable–Case was remanded to Appellate Court to decide specific question as to whether land in question was reserved for Armed personnel- PLJ 2002 Lahore 1832
Allotment of plot from quota reserved for allotment to Industrial Labourers in specified scheme–Allotment chit was refused to petitioner on basis of policy of Government whereby allotments on basis of quotas was abolished and allotment was ordered to be through open option–Validity–Petitioner’s case having gone through the whole process, one year before new policy, he was entitled to allotment of plot in question–Petitioner’s name had been displayed on notice Board and necessary approval of Government had been accorded for allotment of plot in question, to him–Respondents were ordered to issue allotment order and possession-ship in respect of plot in question, after receipt of necessary dues, to petitioner. PLJ 2001 Lahore 1129
Cancellation of deed of exchange of land–Board of Revenue cancelled exchange deed without any notice or intimation to appellants–Validity–Board of Revenue by cancelling exchange deed without any notice or intimation to appellant had violated principles of natural justice and High Court by upholding order of board of Revenue, had also trampled the said principles–Where any person or body of persons was empowered to take decision particularly disposing of controversy which had definitely affected prejudicially the person, property or right of another person, in absence of any express words in enactment giving such power even excluding application of principles of natural justice, Courts of law were to imply that power so given was coupled with duty to act in accordance with principles of natural justice–Orders passed by Board of Revenue without either impleading appellants as a party or hearing them, could not be upheld. PLJ 2000 SC 859
Un-authorised occupants of Government land were offered to purchase land in their occupation on specified price determined by Board of Revenue—Petitioner was also one of occupants, and he had also approached Authority alongwith others for purchase of land under his occupation but inadvertently his name was left out–Petitioner’s subsequent move to purchase land in his occupation did not bear fruit, therefore he approached High Court for redress of his grievance–Petitioner being co applicant with others and application as a whole having been accorded sanction by Board of Revenue, coupled with admission of Authorities that his case was left out inadvertently, vested right had accrued to petitioner to be dealt with similarly as other co-applicants–Petitioners being ready to purchase land in question on basis of latest price assessed by District Price Committee, coupled with specified conditions, therefore, respondents were bound to sell the same on price fixed by District Price Committee–Action of respondent in refusing to implement its decision to sell the land excepting their from petitioner’s name was in violation of
Horse breeding tenancy- Mode of allotment of such tenancy–Two sons of last allottes claimed horse breeding tenancy of their father–In ignoring eldest son of last tenant, District Remount Officer had given weighty reasons and had recommended, younger son (respondent) as “sarbrah” on grounds which were supported by record–Neither in body of petition nor in argument, any material had been brought to dislodge finding of fact arrived at which had been maintained by commissioner in appeal and Board of Revenue in revision–Selection of tenants being in discretion of Provincial Government, High Court could not substitute its findings with finding of Tribunal of competent jurisdiction unless order in question, was shown to be corum-non judice or had been passed in derogation to law and relevant rules–Petitioner was, thus, not found entitled to relief claimed. P12 2000 Lahore 177
Sanction of natural path–Natural path was restored–The Crown does not grant to the grantee but hereby absolutely excepts and reserves to itself out of and in respect of the said land (1) all grounds situated in the said lands or any part thereof already marked out, excavated or otherwise utilized for distributary channels, and (2) all existing right to and over all mines and minerals, coals, gold washings earth oil and quarries in or under said lands or any part thereof together with all easements heretofore enjoyed by the Crown in respect of the said lands, or any part thereof, and it likewise excepts and reserves the rights of the public to use existing through fares traversing the said lands or any part thereof including a width of 1½ kadams on either side of survey base lines, and also any lines of road which through not yet made have been marked out upon the ground. PLJ 2004 Lahore 1793
Colonization of Government Lands (Punjab) Act, 1912 -S. 10 [as applicable in Province of Sindh]–Both parties claiming allotment of land in question, had approached Authorities for grant of land with un-cleaned hands and had practiced fraud upon land grant Authority and mis-represented facts with regard to their eligibility, therefore, none of parties could be allowed to take advantage of their wrong, fraud and misrepresentation, therefore, all orders passed by Revenue Authorities and judgments of High Court of Sindh were set aside with the direction to Colonization Officer concerned to dispose of land in question afresh in accordance with Land Grant Policy. PLJ 2003 SC 382
No orders under Section 10(3) and 10(4) of Colonization of Government Lands (Punjab) Act, 1912 were passed by District Collector in respect of subject land in favour of petitioner–Petitioner and his predecessor-in-interest were, therefore, not vested with status of state tenant of subject land–Order of District Collector rejecting claim of petitioner and respondent on land in dispute was well based since they were never conferred status of state tenant–Order of Additional Commissioner upholding order of D.C/Collector is well based and legally firm–Revision petition being devoid of force is dismissed PLJ 2001 Revenue 45
Allotment of land–Land in question, was claimed to be not available for allotment to petitioner–Order of High Court cancelling allotment of petitioner assailed–Land in question had already been leased out after completion of mandatory formalities–Such land was thus, not available for allotment–Opportunity of hearing was not afforded to respondent lessees and no order of resumption of land in question, was passed–Allotment of such land to petitioner was thus, not warranted. PLJ 2004 SC 707
Allotment under Ejected Tenants Scheme in favour of deceased allottee–Plaintiff after death of original allottee, claiming to be his nephews agitated their claim before revenue hierarchy, however, their such claim was rejected–Tenancy under Ejected Tenants Scheme was although heritable yet they failed to establish that they were nephews of deceased tenant–Plaintiffs also could not establish that they fulfilled conditions which were necessary to claim such property–Neither in plain nor in evidence plaintiff had asserted that they fulfilled conditions entitling them to claim same–Plaintiffs were thus, not found to be entitled to land in question. PLJ 2003 Lahore 808
Ejected Tenants Scheme–No documentary evidence was produced by plaintiff that they were in possession of land in question, at the time of death of original allottee–Revenue hierarchy in concurrent findings on the basis of evidence on record found plaintiff not to be in possession of same–Land in question, was in fact resumed after death of original allottee and thereafter, allotted to another person–No evidence on record would shown that such findings of fact recorded by revenue hierarchy were contrary to record–Trial Courts Judgment and decree in favour of plaintiffs reflected material irregularity and had rightly been set aside by Appellate Court. PLJ 2003 Lahore 808
Transfer/alienation of tenancy rights–Tenants holding state land under different schemes would not fall in ambit of S. 19 of Act of 1912, to seek transfer of tenancy right unless Government in Colonies Department had issued statement of Conditions entitling tenants to be eligible for conferment of proprietary rights. PLJ 2003 Revenue 10 [P. 13] A
Allotment of land owned by Government–Mode of transfer to third person–Right to acquire such property is a grant by the Government–Dominant discretion of Government to select person as transferee of colony land is so important that even original allottee cannot transfer or sell such land to third person unless permitted by Collector in terms of S. 19 of Act V of 1912–As to which person is eligible or entitled to acquire land, is a matter to be determined and approved by Government in the light of all attending circumstances prevailing with reference to Ss. 10 and 19 of the Act V of 1912. PLJ 2003 SC 649
Transfer of tenancy rights–Essentials–Transfer of tenancy rights under S. 19 of Act of 1912 is different from sale after obtaining full proprietary rights in a tenancy–Rejection of petition for transfer of rights on the ground that same was intended to defeat realization of Government dues on transfer, needs reconsideration in that, Government dues on transfer at the time of conveyance deed would have to be paid by purchaser however, requiring tenants or their legal heirs to first acquire proprietary rights, get conveyance deed executed and then transfer tenancy rights through registered deed, would defeat object for which S. 19 was provided in Act of 1912–Tenant can seek transfer of tenancy at any time after declaration of eligibility for conferment of proprietary right without even payment of any cost of land or at any stage thereafter, as be comes to acquire right and vested interest in tenancy at the time he was declared eligible for conferment of proprietary rights from a particular date. PLJ 2003 Revenue 10 [P. 16] B
Sale of tenancy rights by allottee whether not pre-emptible–Right to acquire or purchase property in colony area is right specifically permitted by Government and such right cannot be substituted by ignoring provisions of S. 19 of Act V of 1912–Thus, so long as any property in colony area was owned by Government and not by a private party, any transaction done under S. 19 of Act V of 1912, would not be pre-emptible–Besides, owing to non-withdrawal by Government of Punjab of Notification No. 74 dated 12.6.1944, issued by the then Government of Bahawalpur, land in colony area falling within the ambit of Act V of 1912 remains non-pre-emptible–Impugned judgment of High Court to that effect does not warrant interference. PLJ 2003 SC 649
Court Decisions
Grantee had paid full amount of dues to Government and had fulfilled all other conditions of sale except drawing up and registration of conveyance deed which was not a condition within his power to fulfill–Grantee transferred the subject land in favour of defendant, subsequent to registration of sale-deed in favour of plaintiff–Defendant contended to be a bona fide purchaser for value without notice and claimed protection of S. 27 of Specific Relief Act, 1877–Validity–Where grantee had paid all dues to Government, he had been vested with proprietary rights and was competent to transfer suit-land in favour of plaintiffs by means of registered sale-deed executed in their favour–When sale-deed in favour of plaintiffs was competently .made, subsequent transfer of said land by grantee in favour of third party was without legal authority–Mutation in favour of defendant and all subsequent transactions of exchange, or sale based upon such mutation were nullity–Both Courts below had rightly decided matter in favour of plaintiffs. PLJ 2002 Lahore 501

Court Decisions
Scope:–Board of Revenue can proceed against fraudulent transfers of tenancy rights obtained through misrepresentation under Ss. 16 & 30(2) of Colonization of government Lands (Punjab) Act, 1912, but not with regard to land permanently settled on the allottees —Where the respondents had paid the entire price of land, had deposited all the other incidental charges and had taken over the possession of the land, in such circumstances, their allotment could not be cancelled—Board of Revenue was not equipped with any authority even to cancel allotment in favour of the respondent, after receipt of price and execution of sale-deed.
Order of Board of Revenue based on the notification relating to the fact that the allotment to the respondents fell within the prohibitory zone of the Municipal limits was not a good ground to cancel the allotment because once land was made available for allotment and was transferred and settled on the respondents, it would supersede all the notifications imposing prohibitions— Presumption in law is that acts done by the statutory functionaries are done in good faith and in lawful manner, according to law applicable at that time—Under the principles of locus poenitentiae the Authorities were thus not justified in canceling land of the respondents through subsequent notifications. 2004 M L D 441
Court Decisions
Tawan–Recovery of–Auction of land under tenancy of Petitioners–Challenge to–Under second part of Section 28, sums due on account of fines, confiscations, costs and penalties under Act were made recoverable as arrears of land revenue–It seems undisputed position that recovery of sum involved was under Section 34 and not under Sections 32 and 33–Under sub-clauses (i) to (iii) of Section 34, there is no imposition in form of penalty because either growing or confiscated crop or a sum which might be assessed as value thereof, could be recovered from delinquent–Held: Appellant’s land under lawful tenancy could not be auctioned by support or under cover of provisions of Sections 18, 28, 32, 33 and 34 of Act–Appeal accepted in terms of memorandum (of compromise). PLJ 1990 SC 337
Court Decisions
Essentials-Transfer of tenancy rights under S. 19 of Act of 1912 is different from sale after obtaining full proprietary rights in & tenancy-Rejection of petition for transfer of rights on the ground that same was intended to defeat realization of Government dues on transfer, needs reconsideration in that. Government dues on transfer at the time of conveyance deed would have to be paid by purchaser however, requiring tenants or their legal heirs to first acquire proprietary rights, get conveyance deed executed and then transfer tenancy rights through registered deed, would defeat object for which S. 19 was provided in Act of 1912-Tenant can seek transfer of tenancy at any time after declaration of eligibility for conferment of proprietary right without even payment of any cost of land or at any stage thereafter, as be comes to acquire right and vested interest in tenancy at the time he was declared eligible for conferment of proprietary rights from a particular date. PLD 2003 Revenue 10
Allottee could not transfer any interest in land without written consent of commissioner in view of statutory embargo created by S. 19 of the Colonization of Government Lands (Punjab) Act, 1912—Lease in favour of allottee could be terminated only after service of mandatory notice under S. 24 of the said Act . PLD 2003 Kar. 237

Specific performance. An agreement for transfer of corpus alongwith transfer of possession would not amount to a sale nor would it render agreement void if permission required under S. 19 of Act was not obtained. Likewise a decree for specific performance would be enforceable at law after original transfer i.e., the grantee had been clothed with proprietary rights in land in question by Government. After clearing above legal proposition there will be no difficulty to say that first agreement between parties had sanctity of law and, as such, was legally valid and binding upon parties. In presence of that agreement subsequent agreement and sale deed based on it would not be valid particularly when some of parties to the subsequent agreement were also party in previous agreement and had full knowledge that an agreement for sale ‘existed regarding the subject matter of suit. P.L.J.2000 Lah. 1678.
It has authoritatively been settled by S.C. that want of sanction under Section 19 of Act prior to execution of an agreement of sale, is not fatal and a decree for specific performance of such a contract can be granted. P.L.J.1993 Lah. 139.
Allegations made by predecessor of appellants for declaring decree as invalid for want of sanction under Section 19 of Act, were unfounded. Impugned Judgment of High Court does not suffer from any legal infirmity or misreading or non-reading of evidence. P.L.J.1993 SC 50.
Suit for specific performance of agreement. Allotment of land to allottee and execution of agreement by him subject to execution of sale deed on acquiring proprietary rights. Agreement to sell with some other party on acquiring proprietary rights. Suit for specific performance. Whether right to sue hit by provisions of Section of Act, 1912. Grantee did not sell rights and interest in property while executing aforesaid document but only promised to alienate same in favour of plaintiffs on acquiring proprietary rights. Thus agreement to sell right to sue occurred. It is not hit by provisions of section 19 of Act, 1912. P.L.J.1999 Lah. 1424.

Execution of subsequent agreement on acquiring proprietary rights. Whether subsequent sale deed made in form of petitioners is inoperative against their rights. Property having already been agreed to sell through Ex. P-l, allottee could not execute sale deed in favour of petitioners. Aforesaid sale deed Ex. P-4 is ineffective on rights of respondents. They have already paid entire price and were waiting for grant of proprietary rights to original allottee for execution of sale deed in their favour. Subsequent sale made in favour of petitioners by him is in¬operative against their rights.-P.L.J.1999Lah. 1424.

Amendment in written statement. Bar under section 19 of Act was against alienation and not against agreement which could be enforced through specific performance after grant of proprietary rights. In such a situation, courts below have rightly come to the -conclusion that even if amendment was allowed, it would be an exercise in futility because suit for specific performance of agreement in question was maintainable in eye of law. P.L.J.1997 Lah. 646 = 1997MLD1750.

Defendant was not owner of land in question, when such agreement was executed. Defendant having subsequently acquired proprietary right, of land in question, effect of previously executed agreement to sell. Agreement to sell, by grantee of property vesting in Government would become effective after vesting of property in grantee. Such transaction was not hit by S. 19, Colonization of Government Lands (Punjab) Act 1912. Agreement of sale had to be proved or disproved on its own and previous litigation between executant and plaintiffs sons had no bearing on it. Agreement in question, has to be decided in the light of evidence brought on record as to whether such agreement was ever executed by alleged vendor in favour of plaintiff or not. Plaintiff had fully discharged onus of proving agreement to sell in his favour by producing cogent evidence. Defendants having failed to rebut such evidence, presumption has to be drawn, against them-and in favour of genuineness of such disputed documents. Only conclusion -which could be drawn from evidence available on record was, that vendor had executed agreement to sell in favour of plaintiff, therefore, wrong and illegal conclusion had been drawn by First Appellate Court Judgment and decree of First Appellate Court dismissing plaintiffs suit was set aside while, that of trial -Court decreeing plaintiff’s suit was resorted. P.L.J.2000 Lah. 682.
Tenants holding state land under different Schemes would not fall in ambit of S. 19 of Act of 1912, to seek transfer of tenancy right unless Government in Colonies Department had issued statement of Conditions entitling tenants to be eligible for conferment of proprietary rights, PLD 2003 Revenue 10
Specific performance of contract–Suit for–Suit decreed by trial Court but decree set aside in appeal–Challenge to–Ratio decidendi of authorities is that in case deed in question reflects a complete sale and deed has been executed without prior sanction from competent authority, same shall be void and not enforceable through Court of law, but if it reflects merely an agreement to sell or only a sale of corpus and not allotted/granted rights, same is valid in law–Contents of deed Ex.P1 leave no doubt in mind that it is a deed which reflects complete alienation of allotted/granted rights and nothing has been left to be done by allottee to complete sale–Held: Document Ex.P1 being complete deed of surrender of rights, is void and suit on basis thereof, has rightly been dismissed by appellate Court–Petition dismissed. PLJ 1994 Lahore 317 1994 SCMR 470, PLD 1982, Lahore 716 & 647 and PLJ 1978 Lahore 135 rel.
Setting up of Tube well sinking scheme by Govt. land allotted to various allottees for temporary cultivation with aid of irrigation by means of tube wells–Allottees entered into transaction of sale of their rights–Application moved before Collector for permission of sale of tenancy rights–Petition moved for deletion of names of vendees on ground of non-payment of consideration was accordingly allowed and new vendees substituted who took possession and acquired status of tenants–Deletion of names from earlier permission challenged, but same could not find favour with collector on ground that permission was only effective for period of six months and as mutation was not attested within said period, permission automatically lapsed–Appeal failed before Commissioner–Suit for declaration that both orders were without jurisdiction and in violation of Act V of 1912 and were ineffective upon rights of plaintiffs, dismissed by Civil Court–Validity–Period of six months contained in clause 64 of Part IV of Colony instructions was merely directory in nature and was primarily for guidance of officials performing functions under Act V of 1912–It did not lay down prescribed period of limitation as was understood under law of limitation–Non-completion of mutation within period of six months shall not ipso facto nullify permission granted for alienation–Act of collector in passing his order is also nullity in eyes of law as he did passing such order–Procedure undertaken by collector was wholly without authority and offended against principle of natural justice and were null and void–Collector acted as delegate of commissioner U/S. 19 of Act V of 1912–As delegate he could not exercise any power of cancelling or revoking permission once granted–Agreement admittedly executed by “A” in favour of Respondent No. 2 to 7 was fully enforceable at law and could not be defeated upon basis of permission or otherwise U/S. 19 of Act V of 1912–Respondents Nos. 2 to 6 who were appellants in RSA No. 42 of 1986 were fully entitled for specific performance of agreement in their favour–Suit of Respondents Nos. 2 to 6 could not be barred by time as they were admittedly in possession of property in question and in whose favour Mutation No. 235 was also attested–Civil petition allowed. PLJ 2002 Lahore 993
Alienation of property not effected in accordance with terms of Power of Attorney–Person holding Power of Attorney In terms of Power of Attorney was bound to have obtain registered sale-deed in the name of his principal from concerned authority–Transfer was effected without obtaining such sale deed–Transfer of properly being in non-compliance of terms of Power of Attorney was thus, of no effect and not binding on parties–High Court having drawn right conclusions, no interference was warranted in the judgment–Leave to appeal was refused in circumstances. PLJ 2002 SC 207
Agreement without sanction–Specific performance–An agreement or transfer of corpus along with transfer of possession would not amount to a sale for would it render agreement void if permission required under S. 19 of Act was not obtained–Lick-wise a decree for specific performance would be enforceable at law after original transfer i.e., the grantee had been clothed with proprietary rights in land in question by Government- After clearing above legal proposition there will be no. difficulty to say that first agreement between parties had sanctity of law and, as such, was legally valid and binding upon parties–In presence of that agreement subsequent agreement and sale deed based on it would not be valid particularly when some of parties to the subsequent agreement were also party in previous agreement and had full knowledge that an agreement for sale existed regarding the subject matter of suit. PLJ 2000 Lahore 1678
Agreement to sell–Specific performance of agreement to sell was postponed to a date when the grantees would acquire the proprietary rights–Effect–Such a reservation in the deed itself showed the awareness of the prohibition, the recognition of its legal effect and an effort on the part of contracting parties to keep themselves well within the confines of law and to act in accordance with the requirements of law–Such agreement to sell was not violative of either the express provisions of S. 19 of Colonization of Government Lands (Punjab) Act, 1912, or of the public policy behind such statutory provisions. PLJ 2003 Karachi 196
Transfer/alienation of tenancy rights–Tenants holding state land under different schemes would not fall in ambit of S. 19 of Act of 1912, to seek transfer of tenancy right unless Government in Colonies Department had issued statement of Conditions entitling tenants to be eligible for conferment of proprietary rights. PLJ 2003 Revenue 10 [P. 13] A
Colonization of Government Lands (Punjab) Act, 1912 –Ss. 10 & 19–Allotment of land owned by Government–Mode of transfer to third person–Right to acquire such property is a grant by the Government–Dominant discretion of Government to select person as transferee of colony land is so important that even original allottee cannot transfer or sell such land to third person unless permitted by Collector in terms of S. 19 of Act V of 1912–As to which person is eligible or entitled to acquire land, is a matter to be determined and approved by Government in the light of all attending circumstances prevailing with reference to Ss. 10 and 19 of the Act V of 1912. PLJ 2003 SC 649
Transfer of tenancy rights–Essentials–Transfer of tenancy rights under S. 19 of Act of 1912 is different from sale after obtaining full proprietary rights in a tenancy–Rejection of petition for transfer of rights on the ground that same was intended to defeat realization of Government dues on transfer, needs reconsideration in that, Government dues on transfer at the time of conveyance deed would have to be paid by purchaser however, requiring tenants or their legal heirs to first acquire proprietary rights, get conveyance deed executed and then transfer tenancy rights through registered deed, would defeat object for which S. 19 was provided in Act of 1912–Tenant can seek transfer of tenancy at any time after declaration of eligibility for conferment of proprietary right without even payment of any cost of land or at any stage thereafter, as be comes to acquire right and vested interest in tenancy at the time he was declared eligible for conferment of proprietary rights from a particular date. PLJ 2003 Revenue 10 [P. 16] B
Sale of tenancy rights by allottee whether not pre-emptible–Right to acquire or purchase property in colony area is right specifically permitted by Government and such right cannot be substituted by ignoring provisions of S. 19 of Act V of 1912–Thus, so long as any property in colony area was owned by Government and not by a private party, any transaction done under S. 19 of Act V of 1912, would not be pre-emptible–Besides, owing to non-withdrawal by Government of Punjab of Notification No. 74 dated 12.6.1944, issued by the then Government of Bahawalpur, land in colony area falling within the ambit of Act V of 1912 remains non-pre-emptible–Impugned judgment of High Court to that effect does not warrant interference. PLJ 2003 SC 649
Court Decisions
Succession to tenancy of stat land :– Provisions of S.19-A of Colonization of Government Lands (Punjab) Act, 1912 would not be applicable, where original allottee died as a lessee and not as a grantee or tenant of land. 2004 C L C 108
Civil Procedure Code (V of 1908), S. 115–Plaintiffs failure to prove that land in question was in favour of their father and that he had cultivated the same–No material was available on record to entitle plaintiff to decree on basis of inheritance–Defendant however, successfully proved that land in question, was in his possession and he cultivated the same and got allotment thereof–Court below had thus, erroneously passed decree in favour of plaintiff which being not sustainable was set aside. PLJ 2002 Lahore 1431
Conferment of proprietary rights–Bars Reclamation Scheme having been promulgated on 12.12.1945, envisaging conferment of proprietary rights over half of reclaimed area allotted under scheme Period of 8 years was given for bringing barren land under plough–Allotee applied for conferment of proprietary rights in 1960, contending that he had fulfilled conditions under scheme–Original scheme did not contain any concept of prohibited limits–If petitioners scheme had been processed, with reasonable speed, same would have been completed long before establishment of Town committee concerned, bringing land under prohibited zone–District Collector was directed to process petitioners case for conferment of proprietary rights in accordance with law to the extent of their share. PLJ 2003 Revenue 8
Court Decisions
Whether rule of inheritance contained in Section 20 would be applicable to case governed by S. 21 There” is nothing in language of Section 21 to support contention that succession, to tenancy in cases falling within scope of section 21 will be governed under section 20. Rule of inheritance contained .in Section 20 deals with succession of tenancy rights of original tenant, would not be applicable to case governed by S. 21 Succession to tenancy of original tenant of agricultural land is governed in accordance with provisions of S. 20 on death of original tenant. P.L.J.1996 SC 503 = PLD 1995 SC 686.
Court Decisions
Allotment of land to army officer—State land, availability of—Notification for allotment of disputed land was issued in favour of appellant who was an army officer while the land had already been allotted to the respondents—High court in exercise of constitutional jurisdiction set aside the notification issued in favour of the appellant on the ground that the land was not available for allotment as the same had already leased out after completion of all mandatory formalities as enumerated in the Notification No. 3369/67-198-C. 1.1., dated 7-2-1968, could not have been declared as “land available”, hence the question of its further allotment without getting the same cancelled could not arise—respondents were admittedly landless tenants to whom land was leased out in accordance with the then prevalent policy and physical possession was also handed over to them which could not have been cancelled by one stroke to pen without affording them proper opportunity of hearing as envisaged in Para. 23 of Notification No. 3369/67-198-C.1.1., dated 7-2-1968— Issuance of notification of allotment in favour of the appellant was in violation of the principles of natural justice, fairplay and equity—Judgment of High court being well based and unexceptionable did not warrant interference—Appeal was dismissed. P L D 2004 SC 271
Resumption of tenancy for breach of terms of lease by raising residential buildings on land leased out for cultivation and poultry farming purposes—Plea of petitioner was that he was not provided opportunity of hearing prior to cancellation of lease; and that Government had lost its rights over the land after its acquisition by Karachi Development Authority and then its allotment to petitioner by the Authority on further payments towards allotment—Validity—No agreement fro acquisition of such land by the Development Authority or provision of law applicable thereto had been pointed out—No person could be treated as a tenant, unless he had taken possession of land with permission of the Collector—Petitioner had been in possession of land since 1964, thus, Karachi Development Authority could not be treated as tenant of Government at any time thereafter—Karachi Development Authority had neither acquired such land as owner not could be treated as tenant of Government in respect thereof—petitioner could not transfer any interest in land without written consent of commissioner in view of statutory embargo created by S. 19 of the Colonization of Government Lands (Punjab) Act, 1912—Lease in favour of petitioner could be terminated only after service of mandatory notice under S. 24 of the said Act—High Court accepted constitutional petition, declared impugned order to be without lawful Authority and of no legal effect while leaving open to Government to take appropriate action against petitioner for having violated terms of tenancy. PLD 2003 Kar. 237

Deletion of petitioners’ names from Joint tenancy rights without notice to them and without affording them opportunity of being heard would not affect their rights in Joint tenancy. 1995 M L D 45

Acquisition of Land for Cloth Mills. Resumption. Even if it be assumed that property had lost its character and had vested in Provincial Government, even then Colony Assistant, on 17.5.1981 had no powers under Sections 24 and 30 of Act, to pass impugned order of resumption. Power stood delegated to Assistant Commissioners in various districts including Faisalabad and as such Colony Assistant was- denuded of its powers of Collector. It was directed in 1983 by Board of Rev. that Colony Assistant cannot be allowed to exercise powers of Collector. It was only on 14.1.1987 that Colony Assistants in Punjab were vested with powers of Collector under Colony Act. Impugned order having been passed by Colony Assistant assuming himself to be Collector under Colony Act; was without lawful authority, without Jurisdiction and nullity.-P.L.J.1996 Lah. 42 = PLD 1995 Lah. 219.

Cancellation. Respondent was not given any opportunity for-rectification of breach of conditions of agreement, if any, u/s 24 of colonization of Government Land Act. Secretary district Allotment Committee was not competent to cancel allotment on behalf of District Allotment Committee. Agreement shows that except clause 12 which relates to resumption of land, there is no other penalty provided for violation of any terms of agreement, this clause shows that Urban Rehabilitation Department or any officer in its service could resume Land. It does not say that secretary District Allotment Committee could resume land. District Allotment Committee only was competent to pass an order of cancellation of allotment. Secretary of District Allotment Committee under law was not competent to pass such an order. Appeal dismissed. P.L.J.1998 Lah. 925 = PLD 1998 Lah. 429.
Allotment of a plot–Cancellation of–Suit for declaration–Dismissal of–Appeal against-Acceptance of–Challenge to–Respondent was not given any opportunity for rectification of breach of conditions of agreement, if any, u/s 24 of colonization of Government Land Act–Secretary district Allotment Committee was not competent to cancel allotment on behalf of District Allotment Committee–Agreement shows that except clause 12 which relates to resumption of land, there is no other penalty provided for violation of any terms of agreement, this clause shows that Urban Rehabilitation Department or any officer in its service could resume Land–It does not say that secretary District Allotment Committee could resume land–District Allotment Committee only was competent to pass an order of cancellation of allotment–Secretary of District Allotment Committee under law was not competent to pass such an order–Appeal dismissed. PLJ 1998 Lahore 925
Revision petition filed against order passed by Executive District Officer (Revenue)–Resumption of land after expiry of terms of leases–District Officer (Revenue) is required to pass a detailed/speaking order by applying his conscious mind to the ground constituting resumption of land–Order of District Officer (Revenue) set aside by MBR (Colonies) and case remanded for passing orders afresh order. PLJ 2003 Revenue 33
Court Decisions
Tawan–Recovery of–Auction of land under tenancy of Petitioners–Challenge to–Under second part of Section 28, sums due on account of fines, confiscations, costs and penalties under Act were made recoverable as arrears of land revenue–It seems undisputed position that recovery of sum involved was under Section 34 and not under Sections 32 and 33–Under sub-clauses (i) to (iii) of Section 34, there is no imposition in form of penalty because either growing or confiscated crop or a sum which might be assessed as value thereof, could be recovered from delinquent–Held: Appellant’s land under lawful tenancy could not be auctioned by support or under cover of provisions of Sections 18, 28, 32, 33 and 34 of Act–Appeal accepted in terms of memorandum (of compromise). PLJ 1990 SC 337
Court Decisions
Proprietary rights, Board of Revenue had absolute discretion in grant of such rights and selection of grantees. 2004 C L C 108

Request of lessee for grant of proprietary rights in respect of land leased out to him under Temporary Cultivation Scheme, was finally turned down on the ground that land in question being Charagah land, proprietary rights for such land was not permissible under the policy of Board of Revenue— grant of proprietary rights to the lessees, was governed by the policy framed by the Board of Revenue on the subject—No Policy of Board of Revenue existed under which proprietary rights of Charagah lands could be granted to the lessees and grant of proprietary rights for Charagah lands had been specifically prohibited as such lands were required for public purpose—Request of lessee for grant of proprietary rights had rightly been turned down, in circumstances. 2004 C L C 215

Board of Revenue can proceed against fraudulent transfers of tenancy rights obtained through misrepresentation under Ss. 16 & 30(2) of Colonization of government Lands (Punjab) Act, 1912, but not with regard to land permanently settled on the allottees—Where the respondents had paid the entire price of land, had deposited all the other incidental charges and had taken over the possession of the land, in such circumstances, their allotment could not be cancelled—Board of Revenue was not equipped with any authority even to cancel allotment in favour of the respondent, after receipt of price and execution of sale-deed. Order of Board of Revenue based on the notification relating to the fact that the allotment to the respondents fell within the prohibitory zone of the Municipal limits was not a good ground to cancel the allotment because once land was made available for allotment and was transferred and settled on the respondents, it would supersede all the notifications imposing prohibitions— Presumption in law is that acts done by the statutory functionaries are done in good faith and in lawful manner, according to law applicable at that time—Under the principles of locus poenitentiae the Authorities were thus not justified in canceling land of the respondents through subsequent notifications.
No notice of hearing served on the respondents under S. 30(2) of Punjab Colonization of Government Lands (Punjab) Act, 1912 before cancellation of allotment– Provision of notice of hearing before cancellation was a statutory provision and respondent being a lawful transferee was entitled to notice as well as hearing, thus, the order was bad in law.
Power under S. 30(2) of Colonization of Government Lands (Punjab) Act, 1912 given to the Board of Revenue could not have been delegated by it, but instead without holding any inquiry and after passing the order of cancellation against the respondent it remitted the case to its subordinates—Course adopted by the Board of Revenue was not permissible under the law and, in the absence of proof of fraud or misrepresentation, the order of cancellation was void, contrary and ultra vires of the provisions of S. 30(2) of Colonization of Government Lands (Punjab) Act, 1912. 2004 M L D 441
Colony Assistant, on 17.5.1981 had no powers under Sections 24 and 30 of Act, to pass impugned order of resumption. Power stood delegated to Assistant Commissioners in various districts including Faisalabad and as such Colony Assistant was- denuded of its powers of Collector. It was directed in 1983 by Board of Rev. that Colony Assistant cannot be allowed to exercise powers of Collector. It was only on 14.1.1987 that Colony Assistants in Punjab were vested with powers of Collector under Colony Act. Impugned order having been passed by Colony Assistant assuming himself to be Collector under Colony Act; was without lawful authority, without Jurisdiction and nullity.-P.L.J.1996 Lah. 42 = PLD 1995 Lah. 219.
Land acquired under Act — Resumption of — Challenge to — Board of Revenue is empowered to pass order of resumption of land if it is satisfied that tenancy rights were obtained by means of fraud or misrepresentation — Enquiry resulting in resumption order must be held by Board of Revenue itself — Power to resume land depends upon establishment of jurisdictional fact as to whether there was fraud or misrepresentation — No such inquiry was held by Member, Board of Revenue — Held: Member, Board of Revenue exceeded his powers under Section 30(2) of Act and his order was ultra vires that section — Petition dismisses. PLJ 1993 Lahore 207
Mutation of inheritance–Attestation of–Review of–Prayer for–Refusal of–Challenge to–A perusal of Khasra Girdawari and relevant record shows that respondent No. 1 has remained in possession of suit land throughout–From perusal of general power of attorney and agreement to sell both dated 2.9.1971, only logical conclusion which can be drawn, is that deceased had alienated his right in land to respondent No. 1 having received consideration from him and authorised him to dispose it of in any manner–Held: Collector has correctly advised recourse to civil court–Held further: Impugned order does not suffer from any illegality or irregularity or infirmity and no interference therein is warranted–Petition dismissed. PLJ 1993 Revenue 49
)–Allotment of land–Appellant assailed allotment on ground that had already been allotted to him under Grow More Food Scheme which allotment was cancelled by Board of Revenue under provisions of S. 30 (2) of Colonization of Government Lands (Punjab) Act, 1912–High Court in exercise of Constitution jurisdiction net aside order of Board of Revenue and allotment was restored in favour of respondents–Validity–Record did not show that land in question was even allotted to appellant under Grow More Food Scheme–Respondents has been dragged unnecessarily by appellant in litigation–Judgment passed by High Court was based on accepted principles and there was no irregularity or illegality therein requiring interference by Supreme Court. PLJ 2002 SC 536
Court Decisions
Allottee of land–Allottee died before obtaining proprietary rights–Inheritance of–Whether appellant acquired her share as full owner or limited owner–Question of–Mst. Bakhtawar’s case was not of an estate’s devolution to a female from a male last holder under Section 30-A(1)(a) or (b)–Her case was covered by Section 30-A (2) of Act–Held: On obtaining proprietary rights, Mst. Bakhtawar shall have to be treated as full owner of property in dispute–Appeal accepted. PLJ 1993 SC 406
Court Decisions
Trespasser in possession of Government Land. Collector’s power to remove trespasser and resume possession of such land on behalf of Government. Collector in terms of S. 32, Colonization of Government Lands Punjab, Act 1912, was empowered to enter upon such land and resume possession of ‘ same on behalf of Government. Powers vested in collector is to safe guard interest of state and to save state land from illegal occupation by squatters and trespassers. Matter in question, was, however, still sub-Judice before collector who was competent to make final order in such matter. P.L.J.2000 Lah. 867
Tawan–Recovery of–Auction of land under tenancy of Petitioners–Challenge to–Under second part of Section 28, sums due on account of fines, confiscations, costs and penalties under Act were made recoverable as arrears of land revenue–It seems undisputed position that recovery of sum involved was under Section 34 and not under Sections 32 and 33–Under sub-clauses (i) to (iii) of Section 34, there is no imposition in form of penalty because either growing or confiscated crop or a sum which might be assessed as value thereof, could be recovered from delinquent–Held: Appellant’s land under lawful tenancy could not be auctioned by support or under cover of provisions of Sections 18, 28, 32, 33 and 34 of Act–Appeal accepted in terms of memorandum (of compromise). PLJ 1990 SC 337
initiation of proceedings against illegal occupant of Government land–Petitioner claimed entitlement to grant of proprietary rights–Petitioner being illegal occupant cannot be deemed to be subtenant–Entitlement of original tenant should first be fulfilled and if any land in original tenancy was left and after satisfying claim of tenant in terms of specified scheme, it would be considered for allotment where provided–Petitioner being illegal occupant he could not be considered sub-tenant–Finding to that effect rendered by Commissioner would not warrant interference. PLJ 2003 Revenue 25

Court Decisions
Tawan–Recovery of–Auction of land under tenancy of Petitioners–Challenge to–Under second part of Section 28, sums due on account of fines, confiscations, costs and penalties under Act were made recoverable as arrears of land revenue–It seems undisputed position that recovery of sum involved was under Section 34 and not under Sections 32 and 33–Under sub-clauses (i) to (iii) of Section 34, there is no imposition in form of penalty because either growing or confiscated crop or a sum which might be assessed as value thereof, could be recovered from delinquent–Held: Appellant’s land under lawful tenancy could not be auctioned by support or under cover of provisions of Sections 18, 28, 32, 33 and 34 of Act–Appeal accepted in terms of memorandum (of compromise). PLJ 1990 SC 337
Court Decisions
Initiation of proceedings against illegal occupant of Government land–Petitioner claimed entitlement to grant of proprietary rights–Petitioner being illegal occupant cannot be deemed to be subtenant–Entitlement of original tenant should first be fulfilled and if any land in original tenancy was left and after satisfying claim of tenant in terms of specified scheme, it would be considered for allotment where provided–Petitioner being illegal occupant he could not be considered sub-tenant–Finding to that effect rendered by Commissioner would not warrant interference. PLJ 2003 Revenue 25
Tawan–Recovery of–Auction of land under tenancy of Petitioners–Challenge to–Under second part of Section 28, sums due on account of fines, confiscations, costs and penalties under Act were made recoverable as arrears of land revenue–It seems undisputed position that recovery of sum involved was under Section 34 and not under Sections 32 and 33–Under sub-clauses (i) to (iii) of Section 34, there is no imposition in form of penalty because either growing or confiscated crop or a sum which might be assessed as value thereof, could be recovered from delinquent–Held: Appellant’s land under lawful tenancy could not be auctioned by support or under cover of provisions of Sections 18, 28, 32, 33 and 34 of Act–Appeal accepted in terms of memorandum (of compromise). PLJ 1990 SC 337
Court Decisions
Ouster of Jurisdiction:– Where in matters of allotment or grant of lease of land, there is an obvious avowed or express interference in favour of a particular person by a superior Government official or a person holding an important political office, in supersession or relaxation of Rules to detriment of another person, pursuance of departmental remedies provided under relevant statutes, would be an exercise in futility because of increasing trend of obsequiousness amongst Government officials. Such officials hearing appeal/review, are likely, to be hesitant to apply their minds to cases Judiciously in view of intimidating . influence of their departmental or political superiors. Ousted Jurisdiction of Civil Courts, by Section 36 of Colonization of Government Lands (Sindh) Act, 1912 would not be barred in such circumstances. P.L.J.1999 Kar. 510 = 1999CLC123. Bar of jurisdiction of Civil Court–Extent of–Civil Court would ordinarily have jurisdiction to decide whether or not act purporting to have been done in exercise of power conferred by Act V 1912, could be validly done under Act–Language of S. 36 of Act V of 1912 does not indicate that jurisdiction had been taken away from Civil Courts by that section–Provisions of S. 36 of Act V of 1912, does not divest jurisdiction of Civil Court to adjudicate what legal effect order of a Revenue officer validly passed under Act V of 1912, would have on the rights of parties before it. PLJ 2003 Lahore 1273

Extent. Civil Court being Court of general Jurisdiction although, could entertain disputes regarding rights’ or title or interests of persons in immovable property yet Civil Procedure Code, 1908, also provides under O.VII, R. 11 C.P.C. that where Civil Court has Jurisdiction to peruse plaint and it does not disclose cause of action or is barred by law, may reject the same., Jurisdiction of Civil Court in colony matter, is barred in any matter in which Collector, Additional Commissioner or Board of Rev. is empowered to dispose of that matter and those matters stood disposed of within their lawful authority and exclusive Jurisdiction. Civil Court would not interfere or entertain matters disputes falling within hierarchy of Rev. Courts. Concurrent finding of Courts below being that Civil Court had no Jurisdiction to entertain or decide those matters which were within exclusive Jurisdiction of Rev. Courts, such finding would not warrant interference or entertain matters/disputes falling within hierarchy of Rev. Courts. Concurrent finding of Courts below being that civil Court had no Jurisdiction to entertain,, or decide those matters which were within exclusive Jurisdiction of Rev.. Courts, such finding would not warrant interference in revisional Jurisdiction” of High Court.-P.L.J.1999 Lah. 1784. Colonization of Government Lands (Punjab) Act 1912, does not divest Civil Court of jurisdiction to adjudicate what legal effect, order of Revenue Officer validly passed under Colonization Act 1912, could have no rights of pal-ties before it–Civil Courts are empowered to decide whether or not act purporting to have been done under Act of 1912 could be validly done–Where suit was based on claim to occupancy tenancy by adverse possession, Civil Courts cannot confer any grant or any right on plaintiff which is conferred by functionaries under Act V of 1912. PLJ 2003 Lahore 1217
Court Decisions
Land–Consolidation of–Shamilat land–Partition of–Procedure for–Findings of Supreme Court cannot be construed to refer to Misal-e-Haqiat of 1913-14 to be adopted as measure for partitioning of Shamilat land–Principle laid down for partitioning of Shamilat land in Sham: Wajibul An of 1865 which was repeated in Sharat Wajibul An of 1891-92, was rightly adopted as measure of partitioning by Consolidation Authorities while confirming consolidation scheme–Held: Observation of Hon’ble Supreme Court that measure of partition of Shamilat land is to be Sharat Wajibul An of 1891-92 obviously meant jamabandi which was in vogue at that time and not one which was to be prepared after second settlement and matured in 1913-14–Petition dismissed. PLJ 1993 Revenue 36

Land–Consolidation of–Challenge to–Determining point in impugned order is special oath taken on holy Quran by Allah Bakhsh–Recourse to Divine Book though not specifically provided, can still be resorted to provided there is an express commitment to such a method by both parties–Allah Bakhsh is not a party to proceedings and no concession or commitment by petitioners’ party was made in court for accepting averment to be made by him on special oath–Report of Consolidation Officer after visit to spot was that crop of Tara Meera was found on disputed land which was cultivated by petitioners–This report was prepared in presence of three respectables of village out of whom one was Councilor and respondents did not challenge it to falsify it–Held: It is dearly proved that petitioners have been unjustly deprived of their land–Petition accepted. PLJ 1993 Revenue 33

Court Decisions
Land–Consolidation of–Whether Minister for Consolidation can interfere with confirmed Consolidation scheme–Question of–Under Ordinance, authorities who could act were Collector, Commissioner and Board of Revenue–Statutory functionaries alone could have interfered with orders challenged before then–Held: Minister, not being such a functionary, had no jurisdiction to deal with matter in any manner–Held further: His action, for this additional ground, was also void ab-initio and could not at all be acted upon. PLJ 1990 SC 503
Land–Consolidation of–Whether order of Board of Revenue was an independent order–Question of–It is clearly stated in order of Board off’ Revenue that under orders of Minister for Consolidation, Member (Consolidation), Board of Revenue, Punjab, has been pleased to allow re-consolidation in village—1t is further strengthened by direction of Board of Revenue that District Authorities were required to comply with above orders and submit a report for information of Minister–Held: Member, Board of Revenue did not act according to his own independent judgment–Held further: Impugned judgment of High Court being unexceptionable, there is no justification for grant of leave–Petition dismissed. PLJ 1990 SC 503

Land–Consolidation of—Whether order of Minister was cured by order of Board of Revenue–Question of–Contention that in addition to order of Minister, Board of Revenue had also passed independent order which would cure defects in order passed by Minister–Order of Minister was coramnon judice–held: it (order of Minister) could not at all be cured by any functionary even if he was acting under law in purported exercise of his own jurisdiction. PLJ 1990 SC 503

Consolidation

Agricultural land–Assuming character of residential/commercial area–Whether such land could be subject matter of consolidation proceedings–Question of–Idea behind consolidation of holdings is re-distribution of land in an estate so as to reduce number of plots–Disputed land is being used for commercial purposes since more than twenty years prior to initiation of consolidation proceedings–Held: Land in dispute could not conveniently be included in consolidation proceedings primarily meant for agricultural property. PLJ 1992 SC 365

Sanctioned scheme of Consolidation of holdings– –Setting aside of on direction of Minister–Challenge to–Contention that there was no material before High Court to show that Additional Commissioner (Consolidation) was ever directed by Minister to pass any order one way or other–Very order of Additional Commissioner (Consolidation) contains a reference to direction issued by Minister–Held: High Court rightly held that proceedings taken by Additional Commissioner in pursuance of order of Minister were wholly void and not sustainable–Petition dismissed. PLJ 1992 SC 116 PLJ 1990 SC 503 rel.
Court Decisions
Right of way and public passage—Distinguished—Public right of way being unconnected with a dominant tenement is a right in gross and clearly distinguishable from easement, 2002 Lawvision 140 = 2002 CLC 318
Court Decisions
Creation of public street/passage—Principles—Even if a street or a passage over land is not a declared public street within the meaning of Municipal Laws, a public street can come into existence by express dedication of the owner of the land for the use by public. Qazi Muhammad Ishaq v. Abdul Waheed PLD 1975 Pesh. 82; Jatindra Nath Borat and another v. Corporation of Calcutta AIR 1931 Cal. 433; Rana Ganpat Singh v. Kangra Valley Slate Co. 62 PR 1898 and Kumman and another v. Sujan Singh AIR 1938 Lah. 61 9 ref. 2002 Lawvision 140 = 2002 CLC 318 Dispute was with regard to use of suit land as public streets/passages— Defendants claimed to have purchased the whole Khasra Nos. and no public street was included in the same—Trial Court, on the basis of evidence available on record, was of the view that the previous owners had abandoned the suit land for the purpose of public streets and the area used as streets was not included in. the sale-deed executed in favour of the defendants, hence, the suit was decreed—Appellate Court reversed the findings recorded by the Trial Court and allowed the appeal—Validity—Where suit land was established to be a passage for the residents dedicated by the previous owners and the defendants had not purchased the entire area of the Khasra No., the defendants had no right to convert the disputed land to their exclusive use by closing the streets—Appellate Court had erred in assuming that the plaintiffs were before the Court to enforce a right of easement when in fact they were seeking injunction against obstruction of public passage—Judgment and decree passed by the Appellate Court were set aside. 2002 Lawvision 140 = 2002 CLC 318

A right of easement accrues in respect of property owned by someone else–Plea of right of easement would negate respondents’ claim that compound of market vested in them–Approximately 12 feet space inclusive of platform is available in front of each shop–For beneficial enjoyment of respondents’ shops, use of 12 feet wide space comprising platform and passage is enough–Held: Appeal is accepted to extent that respondents’ right of easement is confined only to platform and passage ranging between 10 to 12 feet. PLJ 1991 SC 485

Court Decisions
Suit relating to public nuisance filed without permission of Advocate-General—Maintainability— Construction of high rise building consisting of ground floor plus loft and seventeen upper floors—Plaintiffs being residents of adjoining building alleged blockade of their easement rights of air, light and privacy apart from public nuisance in shape of pollution, traffic jam and shortage of amenities—Held: objection as to maintainability of suit on account of bar under S.91 would not be valid—Plaintiffs could maintain cause without seeking permission of Advocate-General. Kajjam Lakshminarasamma v. Tanniru Seshayya and others AIR 1951 Mad. 491 and Naz Shaukat Khan v. Mrs. Yasmin R. Minhas 1992 CLC 2540 ref. 2003 Lawvision 59 = 2003 CLC 632

Court Decisions
Principles—Even if a street or a passage over land is not a declared public street within the meaning of Municipal Laws, a public street can come into existence by express dedication of the owner of the land for the use by public. Qazi Muhammad Ishaq v. Abdul Waheed PLD 1975 Pesh. 82; Jatindra Nath Borat and another v. Corporation of Calcutta AIR 1931 Cal. 433; Rana Ganpat Singh v. Kangra Valley Slate Co. 62 PR 1898 and Kumman and another v. Sujan Singh AIR 1938 Lah. 61 9 ref. 2002 Lawvision 140 = 2002 CLC 318 Defendants claimed to have purchased the whole Khasra Nos. and no public street was included in the same—Trial Court, on the basis of evidence available on record, was of the view that the previous owners had abandoned the suit land for the purpose of public streets and the area used as streets was not included in. the sale-deed executed in favour of the defendants, hence, the suit was decreed—Appellate Court reversed the findings recorded by the Trial Court and allowed the appeal—Validity—Where suit land was established to be a passage for the residents dedicated by the previous owners and the defendants had not purchased the entire area of the Khasra No., the defendants had no right to convert the disputed land to their exclusive use by closing the streets—Appellate Court had erred in assuming that the plaintiffs were before the Court to enforce a right of easement when in fact they were seeking injunction against obstruction of public passage—Judgment and decree passed by the Appellate Court were set aside. 2002 Lawvision 140 = 2002 CLC 318
Court Decisions
Difference between a ‘lease’ and ‘license’ is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. 2004 Lawvision 126 Agreement granted license for one year – Appellant in possession for 20 years and running a shop without interference from owner – Held, agreement created a lease not license. 2004 Lawvision 126
Where right to use premises was not assignable or transferable in any way, plaintiffs did not have exclusive possession of premises and entry of plaintiffs in Airport and into shops/premises was subject to permission by defendant every day and no interest, whatsoever, in property had been transferred to plaintiffs, relationship between parties was held to be that of licensee and licensor and agreement executed between them was clearly a license agreement. PLJ 1999 Karachi 337
Court Decisions
License, revocation of—Provisions qua licenses under Easements Act, 1882, relate to immovable property—Such licenses can be revoked at the pleasure of the licensor, unless falling within the purview of S.60(a)(b) of Easements Act, 1882. 2002 Lawvision 137 = 2002 CLD 77
Plaintiffs (a private concern against Civil Aviation Authority) had not been transferred interest of property and no work of a permanent character could be executed by them–Execution of such work by plaintiff, held, would become property of defendant after termination of agreement. PLJ 1999 Karachi 337

Encroachment

Order to shift workshop–Whether covered by term encroachment–Question of–From language of notices, it appears that applicant was directed to shift his workshop to some other place–Mere parking of vehicles in front of shop is not encroachment as road or street is partly used for transport parking–Held: Non-applicants were not empowered to force applicant to shift his workshop from his own premises. PLJ 1991 Cr.C (AJK)- 324

Public street–Encroachment of–Removal of encroachment–Notice of–Challenge to–Petitioner got a portion of leased property on rent but also encroached a portion of public street–Multan Cantonment Board by a general notice through press media called upon intruders and encroachers to quit–Contention that Board itself granted permission, and if petitioner was required to vacate, notice under Section 185(2) of Cantonment Board Act, was must–Whether petitioner is guilty of encroachment or not, is a question involving a factual inquiry–Held: Petitioner has allegedly been guilty of a patent encroachment and he cannot get benefit in aid of his mis-doing–Held further: Writ petition, on face of it, is misconceived–Petition dismissed. PLJ 1994 Note 41

Court Decisions
1. Agreement of association between petitioner and respondent—Legality
2. Allotment based on fraud and misrepresentation
3. Allotment of property in question, to respondent after repeal of evacuee law
4. Building sites
5. Cancellation of allotment of land
6. Collector of District have no Jurisdiction
7. Competency to examine record
8. Delayed verification of claims
9. Entitlement of Access land
10. Findings of Chief Settlement Commissioner coupled with decision of Civil Court
11. Jurisdiction of Notified Officer
12. Jurisdiction of Notified Officer—Extent
13. Jurisdiction of Settlement Authorities–Extent
14. Land in possession of Forest Department
15. Locus Standi to challenge allotment
16. Observation/direction of Supreme Court
17. Pending proceedings
18. Petitioner’s claim for garden land
19. Proceedings without notice
20. Property was not available for allotment being pendent lite
21. Surrendering of excess units
22. Transfer of evacuee property after repeal of evacuee laws

1. Agreement of association between petitioner and respondent—Legality:- Respondent having been allotted property in question, he was required to pay specified amount by a certain date as a result of his failure to pay the amount in question, his allotment was cancelled–Respondent, thereafter, entered into agreement of association with petitioner who paid the entire price and got the property restored in the name of respondent–Agreement of, association envisaged 51/56 share of property in question, in favour of petitioner and 5/56 in favour of respondent–Such agreement being legal and enforceable, petitioner was entitled to 51/56 share of property in question, while respondent was entitled to 5/56 share of the same in terms of agreement of association–Notified Officer was directed to issue title documents in favour of petitioner to the extent of 51/56 share and to the extent of 5/56 share in favour of respondent. PLJ 2003 Lahore 1610
2. Allotment based on fraud and misrepresentation:- Cancellation of allotment of land in favour of petitioners–Petitioners had never made any effort or approached any competent Authority for delivery of possession or for implementation of allotment in revenue record which furnished sufficient proof to infer that allotment in question was not genuine and result of fraud and his representation–Allotment in favour of petitioner being based on fraud and misrepresentation and being without jurisdiction, High Court would not exercise its discretionary constitutional jurisdiction in favour of petitioners to annul order of cancellation of allotment even if the same was without jurisdiction. PLJ 2004 Lahore 1298
3. Allotment of property in question, to respondent after repeal of evacuee law:- Legality–High Court in earlier writ petition between the same parties had issued direction for disposal of application of petitioner therein on merits according to law–Such direction could not be construed as conferring jurisdiction which Chief Settlement did not possess under the Law–Allotment in favour of respondent was, thus wholly, without jurisdiction being not a pending proceeding in terms of S.2(2) of the Act of 1975. PLJ 2002 Lahore 930 Respondents and Board of Revenue being successors of Rehabilitation officer and chief settlement commissioner having control over record can on basis of earlier record make enquiry and do the needful with regard to fraudulent allotment–Allotment in question was proposed in specific Khata on 22.9.1961 while allotment in next Khata was proposed to have been made in 1960, which showed that entries in Register R.L. II either had been made ante-dated or that leaf of R.L.II had been changed–No interference was thus, warranted in impugned order of cancellation of allotment. PLJ 2004 Lahore 1298 Admittedly by petitioners failed to place on record any order passed by Competent Authority in favour of petitioners after repeal of evacuee laws coupled with fact that petitioners were only entitled for allotment of land to the specified extent as maintenance–Petitioners got allotted area in excess of limit to which they were entitled and they have not come to Court with clean hands, therefore, Court was not inclined to exercise its discretion in favour of petitioners. PLJ 2002 Lahore 1848
4. Building sites:- All evacuee agricultural (urban) property situated in Province of Punjab having been declared “building sites” on 16.5.1973 and relevant notification to that effect having been held valid for all intents and purposes by Supreme Court, claimants could not claim relief against evacuee agricultural land, which was temporarily allotted to them or alternative land which had been granted in their favour by Notified Authority/Chief Settlement. Commissioner. PLJ 2002 SC 540
5. Cancellation of allotment of land:- Land in question, was allotted to predecessor-in interest of petitioner in lieu of his un-satisfied claim–Such allotment was cancelled after death of original allotted on the report of Patwari that allotment in question was result of fraud and misrepresentation–Register R.L. II, in specific Khata contained note of receipt of certificate with regard to specified units but such note was without any signature of Authority and un-dated–Petitioners failed to produce any proof that their predecessor-in-interest had got his units transferred with regard to land in question vide valid order passed by competent Authority–Respondent officials have denied receipt of transfer certificate on un-satisfied units of petitioners–Concurrent findings of Deputy Commissioner and appellate authority to the effect that about in question was result of fraud and misrepresentation and was void ab initio, could not be disturbed by High Court in exercise of constitutional jurisdiction. PLJ 2004 Lahore 1298
6. Collector of District have no Jurisdiction:- Order of cancellation of allotment passed by Collector of District, assailed on the ground of want of jurisdiction–Collector of District neither had power under repealed Law i.e. Displaced Persons Land Settlement) Act 1958, nor he had authority and power under repealing law i.e. Act XIV of 1975 to deal with evacuee property–Order of Cancellation of land passed by Collector was thus, without jurisdiction–Total lack and want of jurisdiction cannot be condoned nor countenanced–Assumption of jurisdiction un-warranted by law can be corrected by Court in writ jurisdiction, therefore, impugned order was set aside. PLJ 2003 Lahore 1194
7. Competency to examine record:- Competency of Deputy Settlement Commissioner to examine record in his custody and decide whether any document was forged–Deputy Settlement Commissioner being custodian of settlement record was competent to examine record in his custody to determine whether any document was forged–Petitioners who claimed to be purchasers of evacuee plots in question, in open auction, were admittedly proved to be in possession of forged document and they even failed to prove that any price of land had been paid by them–Deputy Settlement Commissioner’s order to the effect that documents in possession of petitioners were forged and that they had not paid any price of land was, thus, eminently correct, just and was fully commensurate with ground-realities of case.PLJ 2000 Lahore 6
8. Delayed verification of claims:- Delayed verification of claims and issuance of entitlement certificates being unjust and iniquitous to penalize respondents for inaction of the Department concerned could not be a cause to penalize respondent claimants–Entitlement certificates were although issued after repeal of settlement laws in compliance with the directive of High Court issued on 18.12.1984, but such circumstance cannot stand in the way of settlement of verified claims of respondents and taking final adjudication by forum of competent jurisdiction to its logical conclusion because cases have not been deemed to be pending on account of non-issuance of entitlement certificates–Directive of High Court with regard to entitlement certificates was issued after and not before repeal of settlement laws when pending cases concerning verification of claims of respondents were finally disposed of–Impugned judgment, therefore, does not warrant interference to the extent of such cases. PLJ 2003 SC 997
9. Entitlement of Access land:- Petitioners were transferred steel Re-Rolling Mills having area measuring 3-16 KM comprising Khasra No. 333–Petitioners thus, could not lay claim to any other area over and above their own transferred premises–Area claim by petitioners had not been considered as part of National Steel Re-Rolling Mills nor can same be considered so, in presence of record. PLJ 2002 Lahore 1750 Respondent had himself accepted that transfer order had been issued in excess of area that was transferred to him and that he was ready and willing to pay price for the same so that Transfer order issued to him remain intact–As per such admissions, concessions and stance of respondent, he could not be deemed to be transferee of area in question and could not take such position later on before Settlement Commissioner/Notified Officer or before High Court–Respondent was stopped in law and precluded from taking self contradictory position–Inconsistent and contradictory pleas can neither sustain in Court nor be contravened. PLJ 2002 Lahore 1750
10. Findings of Chief Settlement Commissioner coupled with decision of Civil Court:- Findings of Chief Settlement Commissioner coupled with decision of Civil Court as affirmed by Appellate Court, could not be examined in writ jurisdiction–Chief Settlement Commissioner who examined entire relevant record and reports of sub-ordinate officers conclusively found that mis-description of property was on account of printing mistake–Such finding was affirmed by Civil Court between parties when petitioners predecessor had approached civil Court wherein transfer in favour of respondents was not deemed to be result of any tampering–Such finding being based on proper appreciation of evidence on record could not be interfered with in Constitutional jurisdiction. PLJ 2000 Lahore 849 1986 CLC 54; 1981 CLC 543; 1982 CLC 2500; 1984 SCMR 228; 1984 SCMR 332; 1981 SCMR 899; 1981 SCMR 503; PLD 1984 Lah. 291; PLD 1982 Lah. 659.
11. Jurisdiction of Notified Officer:- Where no proceedings were pending at time of repeal of evacuee laws, Civil Courts alone, being Court of plenary jurisdiction, could entertain adjudication about status of subject property but not notified officer– PLJ 1999 Karachi 758
12. Jurisdiction of Notified Officer–Extent:- Notified officer exercises jurisdiction only in proceedings falling within ambit of S. 2(2) of the act XIV of 1975–No adjudication was required or warranted where matter related to merely implementation of is which had already been concluded. PLJ 2002 Lahore 893
13. Jurisdiction of Settlement Authorities–Extent:- Settlment Authorities after repeal of Settlement law through Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, have no jurisdiction to entertain any application for correction of any transfer order after 30th June 1974, except in cases saved by Section 2(2) of the Act i.e. cases pending on said date or remanded by High Court and Supreme Court. PLJ 2000 Lahore 849
14. Land in possession of Forest Department:- Land in possession of Forest Department stood excluded from allotment to refugee claim holders–Petitioners claim to allotment of such land–Order of Notified officer refusing to allotment land which was in possession of Forest Department was consistent with legal position on the subject–Mere possession of Forest Department whether notified on un-notified was sufficient enough to exclude land in question from allotment–Legal efficacy of directive of Chief Settlement Commissioner dated 27.2.1965 having already been examined by Supreme Court of Pakistan and upheld, Notified Officer in present case, thus, acted within his lawful authority to pass impugned order, wherein no interference was warranted. PLJ 2002 Lahore 1345
15. Locus Standi to challenge allotment:- Transfer in favour of allottees, had assumed finality with issuance of P.T.D. in 1968–Petitioner challenging such allotment/ transfer being not a party to those proceedings would have no locus standi to challenging same and allotment in question, having attached finality in 1968, cannot now be re-opened. PLJ 2003 Lahore 486
16. Observation/direction of Supreme Court:- Binding effect of–Observation/direction of Supreme Court is entitled to highest regard and respect and binds the parties–High Court is not in a position to ignore the same rather no one can be allowed to find faults with such clear mandate contained in judgment of Supreme Court–Notified Officer to whom such direction was issued was duty bound to have made independent inquiry enabling him to resolve disputed matter–Notified Officer in embarking upon such inquiry has, thus, not overstepped his jurisdiction as that aspect of matter stood clinched by Supreme Court. PLJ 2003 Lahore 1610
17. Pending proceedings:- Expression “pending proceedings” used in S. 2(2) of the Act of 1975 covers “pending cases” and not un-adjusted Produce Index Units” of verified claims for which specific mechanism in the shape of compensation was devised before promulgation of the Act XIV of 1975–Judgments passed relating to such claims by the High Court were wholly without jurisdiction and squarely hit by the expression “want of jurisdiction” used in S. 12(2) and thus, not sustainable. PLJ 2003 SC 997
18. Petitioner’s claim for garden land:- Whether a pending case– Claim of petitioner in respect of garden land was transferred for satisfaction in Karachi District as early as 1962, and was pending for satisfaction at time of repeal of Evacuee Laws–Held: Petitioner’s case was always considered to be pending case in terms of Section 2(2)(3) & (4) of Act–Held further: Survey No. 21 of Deh Bitti Amri is an unallotted and available evacuee land–Petition accepted and Respondents 1 & 2 directed to satisfy claim of petitioner out of said evacuee land. PLJ 1990 Karachi 476
19. Proceedings without notice:- Allotment of land in question, in favour of defendant’s predecessor who failed to pay price of the same despite notice–Land was resumed and plaintiff’s predecessor purchased the same in open auction–Settlement Authorities, thereafter, cancelled order of resumption of land without serving notice on predecessor of plaintiffs or to plaintiffs–Proceedings taken against plaintiffs without issuing them notice or without giving them opportunity of being heard and orders of allotment based thereon were thus, illegal and ineffective qua rights of plaintiffs–First Appellate Court had thus, rightly. decreed plaintiff’s suit which does not suffer from misreading, non-reading or jurisdictional defect therefore, the same was maintained. PLJ 2004 Lahore 82
20. Property was not available for allotment being pendent lite:- Persons claiming to be allottees of land in question, applying to be impleaded as party to Constitutional petition–Allotment claimed by applicants was, however, pendent lite, when same was not available for disposal–No such allotment could lawfully be made as per dictum of Supreme Court as laid down in 1997 SCMR 1635 and 2001 SCMR 1822–Claim of applicants being untenable, their application to be impleaded in writ petition was dismissed. PLJ 2002 Lahore 1750 1997 SCMR 1635; 2001 SCMR 1822; PLD 2000 SC 825; PLD 1987 SC 107;1975 SCMR 24 and 1975; SCMR 33 ref
21. Surrendering of excess units:- Judgment of Supreme Court whereby respondent was given option to surrender excess land got allotted by him related to 491 units and not only to 251 unit–Impugned order, has precisely the same effect, therefore, single Judge has rightly declined to interfere in judgment order which was in compliance of direction of Supreme Court. PLJ 2002 Lahore 175
22. Transfer of evacuee property after repeal of evacuee laws:- Petitioners claimed that property in question, was common passage, therefore, could not have been allotted as residual property–Property in question was however, allotted to respondents as residual property by settlement hierarchy and order in question was maintained by High Court–Validity–Leave to appeal was granted to consider whether property in question, could be treated as residual property. PLJ 1999 SC 1076 Respondent’s claim to allotment having been decided after repeal of evacuee laws, her entitlement certificate was issued thereafter–Notified officer treating respondent’s case to be pending, allotted her specified land–Status–Respondent’s claim for allotment of land admittedly not being pending when evacuee laws were repealed with effect from 1-7-1974, she was not entitled to allotment of land–Only remedy available to respondent after repeal of evacuee laws was to apply for cash compensation for which relevant Department was ready to make payment–Order of allotment made after repeal of evacuee laws, was declared to be illegal and set aside. PLJ 1998 Lahore 391
Court Decisions
1. Allotment after repeal of laws
2. Cancellation of auction
3. Cancellation of Temporary allotment
4. Entitlement of rival claimants
5. Finality to PTD,
6. Jurisdiction After repeal
7. Locus standi to challenge sale
8. Order of Notified officer
9. Principle of laches—Applicability
10. Proceedings Pending
11. Remand of Case
12. Scope of Write
13. Time Barred Petition by Province

1. Allotment after repeal of laws:- After repeal of evacuee laws, there was no jurisdiction left to make any such allotment–Direction issued by Member Board of Revenue for allotment of land in favour of respondent was, thus, manifestly illegal and contrary to law–Allotment in question, would have no effect as it had no legal backing of contemporaneous law nor the allotment made pursuant thereto would have any legal efficacy. With repeal of evacuee laws, property in question, had vested in the Province which can successfully defend its title–Order in question passed by Member Board of Revenue having been passed after repeal of evacuee law being not sustainable in law was declared to be of no legal effect–Allotment made on basis of order in question was set aside in circumstances. PLJ 2002 Lahore 1275 Allotment of land in question, to respondents in satisfaction of their non-satisfied claim under evacuee laws, assailed- Provincial Government had purchased land from central government including land in question, for allotment of pending claim holders and allotted the same through its notified officer, therefore, no exception can be taken to such allotment–Even otherwise, petitioners, who were in cultivating possession on temporary cultivation scheme, could not make grievance against allotment of such land under permanent scheme–Petitioners were thus, not entitled to relief claimed. PLJ 2004 Lahore 1282 Valuable agricultural land was transferred to respondents within 8 ‘ days of application of respondent, for purchasing the same at a much lower rate which would give impression of collusion between official respondents and private respondents inter-se–Offer of appellant of much higher rate was turned down by official respondent–Custodian of government property had thus, not safe-guarded interest of state while selling the same at much cheaper rate although much higher offer was available–After repeal of settlement laws, respondent official however, had no jurisdiction under S. 12 of Displaced Persons (Land Settlement) Act 1958 to transfer available property to respondents–Official respondent could exercise his jurisdiction only in pending matters or in cases which were remanded by the High Court or the Supreme Court–Transfer of residual evacuee property in favour of respondents being not warranted was set aside in circumstances. PLJ 1999 Lahore 1405
2. Cancellation of auction:- Leave to appeal was granted to consider contentions that High Court had wrongly assumed that petitioners had not complied with direction of High Court and appeal under O.XLVII, R. 1 was dismissed; that Senior Member, Board of Revenue had no intention to cancel auction and notice was issued only for realisation of arrears which were paid before such cancellation and, Thus, Board of Revenue could not have cancelled auction and that Senior Member Board of Revenue had no jurisdiction under S. 3(2) of the said Act ()UV of 1975), or under parkas. 3 & 3(A) of Settlement Scheme (Revised) No. VIII to cancel auction, and that relevant provisions of law if pressed, petitioner was entitled within 30 days of cancellation, to apply and pay balance amount and as the amount had already been paid question of application or cancellation did not arise. PLJ 1999 SC 180
3. Cancellation of Temporary allotment:- Land in question was allotted in favour of appellant on temporary basis, which could not have been allotted to respondents and consequently its subsequent allotment made in favour of respondents was cancelled in view of provisions contained in Paragraph 24 of Supplementary Scheme read with paragraph 20 of Rehabilitation Settlement Scheme–High Court accepted Writ Petition filed by respondents and set aside order of Settlement Commissioner– Held: No illegality whatsoever had been made by Settlement Commissioner–There was no jurisdictional defect or any other flaw which make said order unlawful or illegal–Question of any injustice did not arise, because land in dispute was temporarily allotted in favour of appellant, when respondents were not in field–Order of Settlement Commissioner could not have been reversed by High Court in exercise of Constitutional jurisdiction and temporary allotment of land in question had rightly been confirmed by Settlement Commissioner–Appeal accepted and order of Settlement Commissioner was restored. PLJ 2001 SC 1203
4. Entitlement of rival claimants:- Order dated 6.6.1961, passed by settlement Commissioner having attained finality being well based and in accordance with law would be kept intact–Godown in question, would be disposed of by means of open auction and appellant can participate in the same–Appeal was rejected and impugned order, up-to extent of deceased claimant was declared to be without any legal effect. PLJ 2002 SC 1076
5. Finality to PTD:- pre-supposes existence of jurisdictional facts therefore, when PTD was shown to have been issued in respect of property which was not available for allotment, then finality could not be attached to such order and settlement Authorities do not become functus officio–Land in question, having been shown to be adjusted in favour of respondents, by settlement authorities, the same was not available for allotment in favour of allottee who had transferred such land in favour of petitioner–Settlement Authorities thus had jurisdiction to set aside such transfer–Order in question which order being in accord with consideration of equity, was neither arbitrary nor suffered from any jurisdictional defect, therefore, no interference was warranted in impugned order. PLJ 2001 Lahore 1108
6. Jurisdiction After repeal:- After issuance of notification dated 16.5.1973 and promulgation of Repeal Act 1975 Chief Settlement Commissioner Punjab or Notified Officer did not possess any power to make allotment of any agriculture land in Urban Areas of Punjab–No one in settlement Department was, therefore, competent to transfer or consent for giving any land much less an “alternate land” for adjustment of Produce Index Units” specially when they did not even assert possession over any portion of such land—Additionally, by virtue of notification dated 16.5.1973 entire agriculture urban laud was declared as building site and subsequently on account of repealing enactment all utilized properties by operation of law were transferred to Government of Punjab in consolidated pool, which would only be disposed of in accordance with procedure prescribed under regular schemes. PLJ 1997 SC 1446
7. Locus standi to challenge sale:- Petitioner having made offer to purchase disputed property at much higher rate than the price paid by respondents and his offer having been rejected was aggrieved person against such arbitrary and fanciful transfer–Besides, plundering of public. property through illegal, collusion and malafide manner having come, to notice of Court, it was duty of Court to adopt measures for its protection from mis-appropriation by such persons–Objection of petitioner’s locus standi was, therefore, of no substance–Property in question was Ordered to be “resumed by Provincial Government for disposal thereof, in accordance with S. 3, of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1973. PLJ 1999 Lahore 1405
8. Order of Notified officer:- No further appeals revision or review was maintainable under Evacuee Property and Displaced Persons Laws (Repeal) Act 1975–However, all such cases remanded by Superior Courts to notified officer after repeal would be disposed of in accordance with law–Order impugned was passed by Additional Deputy Commissioner (General) who was neither notified officer nor authorized any superior Court to decide matter in question, therefore, he was not competent to decide the same. PLJ 2004 SC 422
9. Principle of laches–Applicability:- Notified officer admittedly had decided case finally vide his order dated 2.2.1993, while writ petition against his decision was filed on 9.9.1996–Single Judge was, thus; justified to) dismiss the same on the principle of laches—Notified officer after proper appreciation of evidence had given finding of fact and the same was affirmed by Single judge–High Court has no’ jurisdiction to substitute its own finding in place of finding of Tribunal below in Constitutional jurisdiction–Single judge was, therefore, justified to uphold finding of Notified Officer–single judge had given finding of fact that appellant’s possession over land in question was un-authorized- Relief through extra-ordinary Constitutional jurisdiction was to be granted to aggrieved person, while un-authorized occupant was not aggrieved person–Property in question, was not available land under S. 3, Evacuee Property and Displaced Persons Laws (Repeal) Act 1975, therefore, the same could not be disposed of as residual property- Notified Officer and single judge were justified to non-suit appellants in as much as, the same had been validly allotted to respondent’s predecessor much earlier–Appellants, being unauthorized occupants, had not ome to Court with clean hand, therefore, they were rightly non- suited by Single Judge–No illegality or irregularity having been pointed out in judgment of single judge, appeal against the same was dismissed in circumstances. PLJ 2000 Lahore 2009
10. Proceedings Pending:- Leave to appeal was granted to consider contention of petitioner that there was no authentic proof on record to show that any second revision application in facts, was submitted by deceased against order of Settlement Commissioner which was pending on date, Evacuee Laws were repealed–Conduct of deceased that be remained completely silent for a period of about over 13 years after filing alleged second revision showed that either no such proceedings were pending or that he had given up his right in respect of transfer of godown in question which already stood transferred in favour of petitioner under order of Chief Settlement Commissioner dated 12.10.1961 as clarified on 28.12.1961–There being no valid proceedings pending, order which had attained finality, could not by set aside be Administrator Residual property in record revision application. PLJ 2002 SC 1076
11. Remand of Case:- Division Bench had remanded case to Notified Officer concerned for decision afresh after hearing parties concerned- Division Bench rightly in its own wisdom did not decide case on merits, keeping in view factual aspects of case, such as nature of property and whether same can be segregated, which aspect of case can be decided legally after going through facts by concerned authority–By remand of case, no loss has been caused to any of contesting party–No mis-reading or non-reading of any material available on record was pointed out–Impugned judgment was not open to exception and thus, was maintained. PLJ 2003 SC 644 Allotment order of Central Government slightly modified on basis of compromise of parties by Court–Settlement Commissioner while implementing such order erroneously treated petitioner to be fresh allottee–Such view was neither warranted by facts or law in as much as, petitioner had been cited as allottee alongwith his co-allottees–Settlement Commissioner while ordering issuance of transfer documents failed to determine proportionate shares of allottees out of respective shares determined by Court on basis of compromise–Such being question of fact has to be determined by Notified Officer–Case was remanded to Notified officer for determining shares of parties in accordance with material on record and their liability to pay the valuation in accordance with their proportionate shares. PLJ 2002 Lahore 580
12. Scope of Write:- Direction to provide to claimants alternate property in the form of urban land issued in earlier with the law and writ in the nature of mandamus could not be issued in such matter–Court could only direct respondent in terms of Art. 199(1)(a)(i) of the Constitution to do that only as required by law to be done–Direction issued earlier was modified with the direction to Chief Settlement Commissioner to redress grievance of claimants to compensate them in accordance with law–Allotment of valuable land at low and negligible price was set aside–Cancellation of allotment made in favour of respondents would not ipso facto be considered to have established their entitlement. PLJ 2002 Lahore 299 1991 SCMR 1255, 1993 SCMR 732, 1997 SCMR 1635, 1999 SCMR 1719, 2001 SCMR 1822, PLD 1980 SC 139, PLD 1991 SC 691, PLD 1993 SC 418, 1986 SCMR 1090, 1981 CLC 1773, 1991 CLC 2533, PLD 1975 Lahore 7, 1987 SCMR 2059, 1984 CLC 503, Shorter Constitution of India, 13th Ed. 2001, Law of Writs by V.G. Ramachandran’s, 5th Ed. P. 679, 1993 SCMR 732 ref
13. Time Barred Petition by Province:- Order passed by notified officer on 3.5.1995, was assailed by petitioner on 10.4.2000–Reasoning advanced for belated filing of application were not convincing and believable mainly for the reason that evacuee land transferred in the names of respondents and others were initially exchanged with state land belonging to petitioner and petitioner Province itself for the first time filed writ petition in 1987 challenging judgment dated 19.4.1987, passed by Appellate Court, Faisalabad–Reasoning of petitioner was further believed from the order dated 23.10.1988 passed in writ petition where in Advocate General appearing on behalf of petitioner, had undertaken to examine PTDs issued in favour of respondents in light of direction given in judgment passed in earlier writ petition–Petitioner Province thus, had knowledge of entire litigation therefore, application in question being belatedly filed was dismissed as time barred. PLJ 2004 SC 422
Court Decisions
14. Conditions of Sale deed:- Whether condition that plaintiffs would not use their plots for purposes other than residential, is a valid condition–Question of–Object of Act and its sections 2 and 3 was to empower Government to make a grant or transfer of land in favour of any person subject to restrictions, conditions and limitations and to declare that restrictions, conditions or limitations “shall be valid and take effect according to their tenor” notwithstanding any rule of law, statute or enactment to contrary–Held: It follows inevitably that condition in sale deeds that plaintiffs would use property in suit for residential purposes only, was a valid condition. PLJ 1991 Lahore 168
15.
16.
17.
18.
19.
Government Tenants (Punjab) Act, 1893
20. Inheritance from original tenant–Whether tenancy is to be treated as agricultural land, if so under what law right of succession to tenancy would be governed–Question of–S. 21 of Colonization of Government Lands (Punjab) Act, 1912 clearly provided that while considering question of succession to tenancy of deceased tenant, tenancy is to be considered agricultural land acquired by original tenant–However, when tenant who had succeeded tenancy from original tenant dies, his tenancy is to be treated as agricultural land acquired by original tenant for purpose of determining right of succession of his heirs–Only provision which is applicable after land has been acquired by tenant, is Section 30–Held: Right of succession to tenancy would be governed under general law of inheritance. PLJ 1996 SC 503

Grow More Food Scheme
Proprietary rights:- Suit dismissed but High Court accepted revision petition–Challenge to–No infirmity or illegality is pointed out in order of High Court–Held: Impugned order is just and in accordance with law and no interference is called for–Petition (340-L of 1991) dismissed. PLJ 1992 SC 49
Court Decisions
Competent Authority has to exercise its independent mind and determine question of transaction in accordance with law after hearing affected parties-In present case, such criteria has been fully met, Perusal of order of Chief Land Commissioner would show that officer had applied his mind to facts and circumstances of Case. PLJ 2003 SC 676
Deceased land owners estate was mutated in favour of his son, where upon respondent ladies filed civil suit which was decreed and their shares in the estate were mutated in their names in according with injunctions of Islam- Petitioners filed declaration forms in terms of Land Reforms Act, 1977, whereupon Land Commission. found that respondent’s land could not be included in the holding of petitioners–Excess land of petitioners was resumed–In subsequent proceeding land owned by respondent ladies was included in the holding of petitioners and excess area was resumed- Petitioner’s revision against resumption of Land was rejected—Land owned by last male owner came to vest in his heirs including petitioners and respondent ladies the moment their father breathed his last—Fact that mutations were entered late or that ladies approached the Court after the date stipulated in Land Reforms dispensation was wholly irrelevant–Impugned order whereby respondent’s land was included in the ownership of petitioners and resumed was not, only illegal but was also without lawful authority–Initial order of Land Commission wherein respondent’s land was not included in the ownership of petitioner would remain intact. PLJ 2000 Lahore 1874

Determining of holding and resumption of excess land. District in which lands were situated and record pertaining to the proceedings under Land Reforms Laws were maintained Authorities of such district had jurisdiction to proceed under S. 7(5) of Land Reforms Act, 1977. PLJ 2001 Peshawar 187
Effect–Petitioners had filed their declaration under West Pakistan Land Reforms Regulation, 1959, in the year 1959 and the land was ordered to be resumed in the same year–Resumption proceedings were suspended when on 5.7.1965 the produce index units were reduced by the Authorities declaring the owners of Kaghan Valley to be unaffected–Such order was set aside by the Commissioner, Federal Land Commission in year 1976 and the old resumption proceedings were revived–Petitioners had made their declaration and order Supreme Court of 1984 (1984 SCMR 669) “decisive steps” had been taken by the petitioners and the Authorities under Land Reforms Laws–Implementation of orders passed by the Authorities as affirmed by Supreme Court only remained to be implemented under “self-executory provisions” of Land Reforms Laws–Proceedings against the petitioners were not affected by the decision in Qazilbash Waqfs case PLD 1990 SC 99–Orders passed by the Authorities for implementation of earlier orders for the resumption of lands owned by the petitioners under the Land Reforms Laws were validly passed–Constitutional petition was dismissed accordingly. PLJ 2001 Peshawar 187
Impugned judgment whereby land in question, gifted to. petitioners, was ordered to be resumed–Validity. Respondent official who passed impugned judgment had no authority to decide revision petition as the same stood abated under Section 25 of Land Reforms Act, 1977. PLJ 2004 Lahore 946
Impugned order of resumption of land passed in revisional jurisdiction by official Respondent Legality–Impugned judgments passed by official respondents being violative of principle of natural justice and being without jurisdiction were set aside. PLJ 2004 Lahore 946
Land situated in Kaghan valley–Issuance of notice under S. 7(5) of Land Reforms Act, 1977–Decision of Supreme Court in Qazilbash Wagf’s case PLD 1990 SC 99—
Repugnancy to injunctions of Islam–Decisive step under provisions of Land Reforms Act, 1977 had already been taken before the target date i.e. 23.3.1990, when judgment of Supreme Court was to become effective–Matter in question, being past and closed transaction was not affected by the judgment of Supreme Court (PLD 1990 SC 99). PLJ 2003 Lahore 406
Surplus area declared by land owner–Sale of a portion of land after surrendering excess area by such declarant–Legality–Embargo placed under S. 6(1) of Land Reforms Act, 1977, was not applicable to land which had been retained/left with declarant after surrendering excess area–Declarant could, thus, rightly sell any portion of property which had been retained by her after surrendering excess area, therefore, sale transaction by such declarant was not hit by S. 6 (1) of Land Reforms Act, 1977.PLJ 2003 Peshawar 161
Transaction of sale and gift by declarant. Validity of such transaction assailed on the touchstone of S. 6 of Land Reforms Ordinance 1977–Two transactions one of gift and other of sale made by declarant on 5.1.1977, were void by operation of S. 6 of Land Reforms Ordinance which was enforced with effect from 5.1.1977. PLJ 2003 SC 676
Where such steps were taken when decision in Qazilbash wagf’s case reported as PLD 1990 SC 99, became effective, proceedings under Land Reforms Laws would continue and taken to the legal conclusion and remained unaffected by the decision in Qazilbash Wagfs case–Decisive steps might be filing of declaration form by declarants or when no such declaration was made, determination by the Authorities under Land Reforms Laws, that a person’s holding was in excess of the limits prescribed by the Land Reforms Laws, or order of resumption of excess land made by the Authorities. PLJ 2001 Peshawar 187

Land Reforms Ordinance , 1977

Determining of holding and resumption of excess land. District in which lands were situated and record pertaining to the proceedings under Land Reforms Laws were maintained Authorities of such district had jurisdiction to proceed under S. 7(5) of Land Reforms Act, 1977. PLJ 2001 Peshawar 187 Where such steps were taken when decision in Qazilbash wagf’s case reported as PLD 1990 SC 99, became effective, proceedings under Land Reforms Laws would continue and taken to the legal conclusion and remained unaffected by the decision in Qazilbash Wagfs case–Decisive steps might be filing of declaration form by declarants or when no such declaration was made, determination by the Authorities under Land Reforms Laws, that a person’s holding was in excess of the limits prescribed by the Land Reforms Laws, or order of resumption of excess land made by the Authorities. PLJ 2001 Peshawar 187 Land situated in Kaghan valley–Issuance of notice under S. 7(5) of Land Reforms Act, 1977–Decision of Supreme Court in Qazilbash Wagf’s case PLD 1990 SC 99–Effect–Petitioners had filed their declaration under West Pakistan Land Reforms Regulation, 1959, in the year 1959 and the land was ordered to be resumed in the same year–Resumption proceedings were suspended when on 5.7.1965 the produce index units were reduced by the Authorities declaring the owners of Kaghan Valley to be unaffected–Such order was set aside by the Commissioner, Federal Land Commission in year 1976 and the old resumption proceedings were revived–Petitioners had made their declaration and order Supreme Court of 1984 (1984 SCMR 669) “decisive steps” had been taken by the petitioners and the Authorities under Land Reforms Laws–Implementation of orders passed by the Authorities as affirmed by Supreme Court only remained to be implemented under “self-executory provisions” of Land Reforms Laws–Proceedings against the petitioners were not affected by the decision in Qazilbash Waqfs case PLD 1990 SC 99–Orders passed by the Authorities for implementation of earlier orders for the resumption of lands owned by the petitioners under the Land Reforms Laws were validly passed–Constitutional petition was dismissed accordingly. PLJ 2001 Peshawar 187 Deceased land owners’ estate was mutated in favour of his son, where upon respondent ladies filed civil suit which was decreed and their shares in the estate were mutated in their names in according with injunctions of Islam- Petitioners filed declaration forms in terms of Land Reforms Act, 1977, whereupon Land Commission. found that respondent’s land could not be included in the holding of petitioners–Excess land of petitioners was resumed–In subsequent proceeding land owned by respondent ladies was included in the holding of petitioners and excess area was resumed- Petitioner’s revision against resumption of Land was rejected—Land owned by last male owner came to vest in his heirs including petitioners and respondent ladies the moment their father breathed his last—Fact that mutations were entered late or that ladies approached the Court after the date stipulated in Land Reforms dispensation was wholly irrelevant–Impugned order whereby respondent’s land was included in the ownership of petitioners and resumed was not, only illegal but was also without lawful authority–Initial order of Land Commission wherein respondent’s land was not included in the ownership of petitioner would remain intact. PLJ 2000 Lahore 1874 Impugned order of resumption of land passed in revisional jurisdiction by official Respondent Legality–Impugned judgments passed by official respondents being violative of principle of natural justice and being without jurisdiction were set aside. PLJ 2004 Lahore 946 Impugned judgment whereby land in question, gifted to. petitioners, was ordered to be resumed–Validity. Respondent official who passed impugned judgment had no authority to decide revision petition as the same stood abated under Section 25 of Land Reforms Act, 1977. PLJ 2004 Lahore 946
Surplus area declared by land owner–Sale of a portion of land after surrendering excess area by such declarant–Legality–Embargo placed under S. 6(1) of Land Reforms Act, 1977, was not applicable to land which had been retained/left with declarant after surrendering excess area–Declarant could, thus, rightly sell any portion of property which had been retained by her after surrendering excess area, therefore, sale transaction by such declarant was not hit by S. 6 (1) of Land Reforms Act, 1977.PLJ 2003 Peshawar 161
Repugnancy to injunctions of Islam–Decisive step under provisions of Land Reforms Act, 1977 had already been taken before the target date i.e. 23.3.1990, when judgment of Supreme Court was to become effective–Matter in question, being past and closed transaction was not affected by the judgment of Supreme Court (PLD 1990 SC 99). PLJ 2003 Lahore 406
Transaction of sale and gift by declarant. Validity of such transaction assailed on the touchstone of S. 6 of Land Reforms Ordinance 1977–Two transactions one of gift and other of sale made by declarant on 5.1.1977, were void by operation of S. 6 of Land Reforms Ordinance which was enforced with effect from 5.1.1977. PLJ 2003 SC 676 Competent Authority has to exercise its independent mind and determine question of transaction in accordance with law after hearing affected parties–In present case, such criteria has been fully met–Perusal of order of Chief Land Commissioner would show that officer had applied his mind to facts and circumstances of Court. PLJ 2003 SC 676

Court Decisions
Ejectment of tenant:– Tenant can be ejected ,if a Revenue Court finds that he failed to pay rent due, despite anything to the contrary contained in any law:– No restriction to eject a person in pursuance to a decree of ejectment is envisaged by S. 42, Punjab Tenancy Act (1887). P L J 1980 Lahore 591
Land Reforms Regulation (1972)-MLR. 115-Provisions do not create new right but lay down priority given to claim of tenant as first preemptor-Disputed land situated in colony area where right of preemption was suspended by notification during certain period Held: in the circumstances question of right of prior purchase during such period did, not arise. P L J 1981 Tr. C. (Revenue) 217

Court Decisions
Alienation of Agricultural land:- Chairman Federal Land Commission in exercise of suo moto powers declared transactions invalid–Challenge to–Alienation made in favour of legal heirs were immune from scrutiny under proviso (iii) to para 7 of Regulation–Alienees being necessary party were not given notice–Order passed by Chairman Federal Land Commission in their absence, was wholly without jurisdiction–Held: Same cannot be sustained and is declared to have been passed without any lawful authority and no lawful consequences. PLJ 1996 Lahore 95 Whether High Court rightly exercised its jurisdiction under Article 199 of Constitution — Question of — Although transaction was fraudulent, it could not be interfered with by Civil Court — Subject matter was within power and jurisdiction of Land Commission authorities — Civil Court as well as two authorities in hierarchy of Land Reforms System had declared transaction as fraudulent — There was no alienation at all — Held: Findings of Civil Court and Federal Land Commission regarding fraudulent nature of transaction having not been disturbed by High Court, it was not a fit case for exercise of discretion in writ jurisdiction. PLJ 1993 SC 236 Impugned gift was declared to be void by Settlement hierarchy–Chairman Federal Land Commission just countersigned orders of his subordinates without applying his independent mind–Order of Chairman Land Commission was not sustainable. PLJ 2002 Lahore 899
Validity of Transfer of land- Transfer of land and creation of right or interest in or encumbrance on land made between target dates to. be deemed to be void irrespective of legality or, illegality of transaction-Land in such case to be deemed to be owned or possessed by person by whom it was owned or possessed immediately before date of transaction-Further held, transaction by which alienation of land made need not strictly be dejure-Alienation de facto in nature, held. effective even if requirement of registration of deed not complied with P L J 1981 Karachi 522
Gift of Agricultural land, Whether gift was bonafide–Question of–Para 7(1)(b) of Regulation provided that land gifted to a person who is not heir of donor, could not be declared bonafide transaction–Petitioner admittedly, being a step-son, cannot be treated as heir of donor–Held: On very face of it, transaction in favour of petitioner would be hit by proviso added to Para. 7(1)(b) of Regulation–Held further: Newly added proviso is not violative of any Fundamental Rights and is competently promulgated–Petition dismissed. PLJ 1991 Karachi 291
Explanation III-Provisions cover not only transfers of lands but also of transactions creating any right or interest in or encumbrance on any land in tiny manner whatsoever by concerned person-Agreement to sell land in pursuance whereof possession delivered to purchaser, creates rights in favour of purchaser-Right left with seller is right to claim balance consideration and obligation to execute sale deed-Thus transactions which are not complete sales but create right and interest in land also envisaged by Para. 7 (I) (b) Expln, lll. P L J 1981 Karachi 177 if in respect of any land, any right, interest or encumbrance is created by declarant in favour of third party and such transaction is held bona fide then such land may not be considered part of holding of declarant for purposes of determining his holding under the Regulation. P L J 1981 Karachi 177 Not sole basis for rejecting transaction as not bona file—Transaction not to be rejected If other considerations mentioned in Explanation III denote the same as bona fide. P L J 1980 Karachi 20

Court Decisions
De facto nature of alienation made by petitioner by way of oral gift, accompanied by delivery of possession and mutation of names as well as bona fides of transaction not being disputed by. respondent-Alienation de facto in nature, held, effective even if requirement of registration not complied with Order of respondent declaring alienation made by petitioner as void, held, passed without lawful authority P L J 1981 Karachi 522

Court Decisions
Acquisition of land by Government servant-Actuation should be by declarant though standing in the names of his sons-Finding not given by Land Commission that dispute land was in fact an acquisition of petitioner though sale was shown in the name of G. who subsequently gifted to petitioner’s son-Purchase made five years before target date-Orders of Land Commission qua resumption of land, set aside as without lawful authority PLJ 1981 Labor. 23
Grant of land to Government servant– Resumption of land under MLR 115–High Court setting aside resumption–Challenge to–Whether grantee could affect sale–Question of–Transaction itself shows that it was not a transfer but it was a contract of sale to take effect after proprietary rights had been acquired–Till then, future purchaser enjoyed interest in land only as an attorney of Grantee–Held: Grantee himself not being proprietor but only purchaser under an agreement to sell visualised in form of Grant, could not confer more rights on contracting party than he himself possessed. (Per majority). PLJ 1991 SC 242 Grantee sold land to respondents–Resumption of land under MLR 115–High Court setting aside resumption–Challenge to–Whether prospective purchasers, i-e. respondents have any equitable right–Question of–Even if Government Grants Act was not there, transferee under a contract of sale from one who himself derives interest from a contract of sale, creates no right in land at all–Held: Prospective purchaser has no independent right and cannot have any in land so as to be recognized either under terms of Grant or under Land Reforms Regulation- (Per majority) PLJ 1991 SC 242 PLD 1990 SC 99=PLD 1989.SC 600 not attracted. Constitutionality of-Not challengeable as no. Constitution existed when the Regulation (1972) was legislated-Decision by Commission that Government Servants from whom land is acquired shall not be required to pay unpaid installments in respect of price of land-Those who paid in excess entitled to be reimbursed in respect of it-Respondents, ordered, to reimburse to petitioner amount equal to amount due from him on date when Regulation was promulgated-Federal Land Commissioner’s Letter No. F5(26)/FLC/73-Decision of Commission not to refund, held, illegal and without lawful authority. P L J 1981 Lahore 155

Court Decisions
Right of Choice–Declarant is obliged to exercise his choice in regard to area to be retained before resumption of his excess land–A declarant surrendering Land of his own choice cannot be allowed to turn around and withdraw his choice and persons acquiring rights in ` surrendered Land cannot be left to his whims. PLJ 1999 Peshawar 23

Court Decisions
A declarant surrendering Land of his own choice cannot be allowed to turn around and withdraw his choice and persons acquiring rights in ` surrendered Land cannot be left to his whims. PLJ 1999 Peshawar 23

Court Decisions
Provisions apply to persons holding land as Adna Maliks before 3rd March 1959—Orders of first appellate Court, neither based on Wajibul Arz nor any other evidence, held erroneous—Held also that Ala Malik., could be treated as Adna Monks for purpose of the Regulation (1959) if no other Adna Malkiyat right had intervened before its enforcement. PLJ 1980 Lahore 91

Court Decisions
Jurisdiction of Land Commission hierarchy—Limited jurisdiction with no powers to confer on itself by wrong decision that certain state of facts exist upon which limits of jurisdiction depends—Authority though clothed with exclusive powers in a particular matter not acting within four corners of statute—Orders of such authority not exempted from attack by civil Court—Sale of land whether effected by bar contained in pars 24 (4) not adverted to by Land Commissioner—Title to land can be determined by declaration under S. 42, Specific Relief Act . PLJ 1980 Lahore 124
Land less than subsistence holding–Alienation of–Whether bonafide requirement is relatable to needs of alienee or alienor–Question of–In interpreting previous clause (a) of sub-para (6) of para 24, it was clearly held that this clause referred to a transaction where land was being sold by an alienor to a person who was already owner in village and who required land bonafide for building purposes–Held: Object of amendment in law was not to make bonafide requirement applicable to alienor; rather it was to clarify position and to sustain interpretation of High Court and to make it clear that bonafide requirement was relatable to needs of alienee–Held further: Judgment of Lahore High Court appears to be legal and in order and does not call for any revision–Appeal dismissed and mesne profits ordered to paid to respondents 4 to 7. PLJ 1990 SC 354

Court Decisions
Right of Pre-Emption of a Tenant:- Provision do not define what is a right of preemption and how it Is to enforced or procedure therefor but simply grant preferential pre-emptory status to tenants regarding land comprised in their tenancy—Such tenants have been given “first right” and other classes entitled to preempt placed below and next to them—Provisions impliedly have become part of S. 15, Pb. Pre-emption Act (1913) and as such suit by tenant to enforce his ‘first right’ of preemption can rightly be called ‘suit to enforce right of preemption under the Act (1 of 1913). PLJ 1980 Supreme Court 458 There is neither any doubt nor dispute that lessee as such had no right of pre-emption conferred in para 25 of MLR 115–Revenue Authorities recorded possession of appellant as “ghair dakhilkar” which in context denoted merely a lessee–Held: Only logical conclusion is that appellant was in possession under a lease from Mst. Sarwat Ara and was not her tenant within meaning of para. 25 of MLR 115–Appeal dismissed. PLJ 1992 SC 85 Suit decreed by Collector but dismissed in appeal–Board of Revenue again decreed suit of tenant–Challenge to–Oral as well as documentary evidence indicates that respondent (plaintiff) was in possession of land on payment of rent without any restriction as to period of occupation–Held: He was a tenant having first right of pre-emption–Petition dismissed. PLJ 1991 Lahore 505 Whether certain area having been excluded from right of pre-emption under Section 8(1) or 8(2) of Act, 1913, tenant’s suits for pre-emption under para.25(3) (d) can succeed–Question of–According to para.3 of MLR its, provisions of Regulation have over-riding effect–MLR 115 is a Federal Law whereas Punjab Pre-emption Act, 1913 is a Provincial Law–Article 143 of Constitution provides that in case of conflict between Federal and Provincial Law, former shall prevail–Held: There is conflict between para 25(3) of MLR 115 and Section 15(c) of Pre-emption Act, 1913 and former provision will prevail–Held further: Right of pre-emption granted by MLR 115 cannot be frustrated or whittled down by Section 8 of Punjab Pre-emption Act, 1913–Both appeals accepted.PLJ 1991 SC 522 Collector decided issue of tenancy against petitioner, in his previous order–In appeal, Additional Commission decided issue of tenancy in favour of petitioner and remanded case for fresh decision on merits which meant decision on issues other than issue of tenancy–It was necessary for respondents to challenge this decision on this vital point of fact, but they failed to do so–Collector was right when he assumed (in his order after remand) that Additional Commissioner had already decided factum of tenancy–In appeal (against second order of Collector), Additional Commissioner wrongly took up this issue and gave decision against petitioner–Held: Regardless of jurisdictional defect, impugned decision of Additional Commissioner, even on merits, is erroneous with regard to possession/tenancy of petitioner over Khassa No. 215/19. PLJ 1991 Revenue 14 Whether Collector is to follow Civil Procedure Code — Question of — Expression “deem” is commonly used to create legal fiction and introduce an artificial conception — Court is entitled to ascertain object for which legal fiction is created — Object of words “shall be deemed to be a civil court” seemingly is to put beyond reasonable doubt availability of such power to forums entrusted with hearing of suits under para 25 of Regulation — Held: For pronouncement upon rights of parties, Collector and other functionaries have to imperatively investigate and determine facts objectively and apply law thereto like a civil court and are bound by procedure laid down in PLJ 1993 SC 300 Tenant’s right of preemption—Exercise- able by making application to Collector claiming such right under R.3(1), Sind Land Commission (Preemption) Rules (1974)—Tenant to establish that he was tenant of disputed land at time of sale because no specific period prescribed in Rules (19741 to qualify for claiming the right—Tenancy rights to be decided by ‘Tribunal & Mukhtiarkar’ constituted under Sind Tenancy Act (1950)—Also bold that ‘tenant’ under Land Reforms Regulation (1972) is distinguishable from ‘Permanent tenant’ under Sind Tenancy Act (XX of 1950), S. 4. P L J 1980 Tr. C. (Revenue) 193 Whether Civil Court had jurisdiction to interfere with orders passed by revenue authorities and declare them without lawful authority–Question of–Combined effect of paragraphs 25 and 26 of MLR 115 is that jurisdiction to try a suit for pre-emption based on right of tenancy, vests exclusively with Collector–Decision of revenue authorities on any matter in such proceedings under MLR 115, cannot be brought under challenge in a civil court–Held: Learned Judge in Chamber was right in holding that Civil Judge and District Judge had no jurisdiction to examine validity of pre-emption decree passed in favour of respondent No.1, by Collector and confirmed by Additional Commissioner in appeal–Petition dismissed. PLJ 1993 SC 422
Para 25(3)(d) gives first right of pre-emption to a tenant in respect of land comprised in his tenancy–It does not refer to entire holding or share of a landowner in a joint Khata/holding–There is no doubt or dispute that khasra No.1844/623/1 measuring 21 kanals 5 Marlas, was in tenancy of petitioner–Held: Petitioner would have superior right of pre-emption on 1/4th share sold from this khasra number under his tenancy without reference to alienated share in joint holding over which petitioner was not a tenant–Held further: Suit having been decreed before 31.7.1986, present petition is not affected by judgment of Federal Shariat Court–Petition accepted. PLJ 1992 Revenue 12 PLJ 1986 SC 576 ref. Preemption-Right of tenant to preempt-Contention that Collector had no jurisdiction to order for deposit of preemption money as such condition was not envisaged by MLR115Contention repelled and held that MLRI 15 though provides substantive right but not procedure-Enforcement of such tight by relevant Preemption Act-Collector competent to reject plaint in suit for preemption for non deposit of money under S. 23, P L J 1981 Supreme Court 389 Para 25(3)(d) gives first right of pre-emption to a tenant in respect of land comprised in his tenancy–It does not refer to entire holding or share of a landowner in a joint Khata/holding–There is no doubt or dispute that khasra No.1844/623/1 measuring 21 kanals 5 Marlas, was in tenancy of petitioner–Held: Petitioner would have superior right of pre-emption on 1/4th share sold from this khasra number under his tenancy without reference to alienated share in joint holding over which petitioner was not a tenant–Held further: Suit having been decreed before 31.7.1986, present petition is not affected by judgment of Federal Shariat Court–Petition accepted. PLJ 1992 Revenue 12 PLJ 1986 SC 576 ref. Preemption-Right of tenant to preempt-Contention that Collector had no jurisdiction to order for deposit of preemption money as such condition was not envisaged by MLR115Contention repelled and held that MLRI 15 though provides substantive right but not procedure-Enforcement of such tight by relevant Preemption Act-Collector competent to reject plaint in suit for preemption for non deposit of money under S. 23, P L J 1981 Supreme Court 389
Order passed under Regulation 115 of Martial Law–Neither Civil Court nor Revenue Officer would be having jurisdiction to declare a transaction to be violative of provisions of M.L.R. 115 PLJ 2002 Lahore 1512
Purchase of land by Tenant– Whether by purchasing land under his tenancy, appellant had lost his right under para 25(3)(d) of Regulation–Question of–According to Section 21-A of Punjab Pre-emption Act, 1913, a pre-emptor cannot defeat a vendee by improving his status after sale and before institution of suit, but no such bar exists to a vendee improving his status after sale but before suit for pre-emption is instituted–Held: Tenant’s plea that superior right as tenant was available to him, was entitled to be accepted- PLJ 1991 SC 457 PLD 1983 SC 181 rel.PLD 1983 SC 265 not approved.

Court Decisions
Combined effect of paragraphs 25 and 26 of MLR 115 is that jurisdiction to try a suit for pre-emption based on right of tenancy, vests exclusively with Collector–Decision of revenue authorities on any matter in such proceedings under MLR 115, cannot be brought under challenge in a civil court–Held: Learned Judge in Chamber was right in holding that Civil Judge and District Judge had no jurisdiction to examine validity of pre-emption decree passed in favour of respondent No.1, by Collector and confirmed by Additional Commissioner in appeal–Petition dismissed. PLJ 1993 SC 422

Court Decisions
Resumption of land on account of non-payment of installments–High Court declaring respondents entitled to benefit of Paragraph 28–Challenge to–Benefit of discharge from liability of any installments payable under Paragraph 19 of Land Reforms Regulations, 1959 was made available to person who was a grantee of land on 11.3.1972 when Land Reforms Regulation, 1972 was issued–Grant of Land to respondents was subsisting on 11.3.1972 and they were entitled to benefit of Para 28–Held : High Court was legally correct in extending benefit of Para 28 of Regulation to respondents. PLJ 1996 SC 1545

Court Decisions
Under para 29, revisional court is empowered to summon record of subordinate authorities for satisfying itself about correctness/validity of their orders/actions–Alienations made by way of gifts or transfers by declarant to his legal heirs enumerated in proviso to para 7(b) are immune from scrutiny of Land Reform Authorities–From perusal of impugned order, it becomes crystal clear that Federal Land Commissioner did not at all scrutinise order of Deputy Land Commissioner who had found transactions as valid–Held: Approach of Federal Land Commissioner in his suo mow power, being clearly illegal and beyond parameter of para 29, his order is without any lawful sanction and cannot be sustained. PLJ 1994 Lahore 72
Powers conferred on Federal Government who may authorise any person to exercise the same—Notification No. 7/18/72 Cord. 1 dated 23-10-1973 authorises Chairman and Members Land Commission as authorised person—Commission competent to issue any direction to Provincial Land Commission or officers sub-ordinate to them to ensure proper implementation of Regulation, P L J 1980 Karachi 20
Decrees passed by Court of competent jurisdiction will be binding unless set aside by Court of competent jurisdiction–Senior Member Federal Land Commission had no jurisdiction to set aside or ignore decrees of Courts which are binding between decree-holders and Abdul Latif Khan declarant–If Provincial Government was aggrieved of these decrees, then it is provincial Government to proceed under Code of Civil Procedure for setting aside these decrees–All the decrees of Court of competent jurisdiction are to be given lawful sanctity even if same are passed in irregular manner, otherwise there will be utter confusion in administration of justice–Held: Member Federal Land Commission had no jurisdiction and lawful authority to ignore and set aside decrees. PLJ 1994 Peshawar 33
Directions to Deputy Land Commissioner by Chairman, Federal Land Commission to direct heir of Nawab (a former Nawab of a State) to file fresh declaration forms under MLR-64 in respect of property of Nawab Muhammad Fareed Khan and his heirs giving them choice including land provisionally transferred to forest department–Order passed by Deputy Land Commissioner allowing land to donees as per area mentioned in LC-I & II including Forest area–Challenge to–Whether order passed in matter was without jurisdiction–Careful reading of paragraph 29 of MLR-115 would show that revisional powers contained in main paragraph 29 of MLR-115 are not unfettered, but are controlled by three provisos appended to it–Chairman, Federal Land Commission as well as Deputy Land Commissioner passed orders in utter disregard of proviso to paragraph 29 of M.L.R. 64 as they failed to afford any opportunity of hearing to Forest Department before passing orders which adversely affects interest of Forest Department–Similalry, application invoking revisional jurisdiction under Paragraph-29 of MLR-64 was moved by respondent No. 6 before Chairman Federal Land Commission on 2x.7.1990–On same date Head of N.W.F.P Inspection Team Federal Land Commission, Peshawar, submitted his detailed report in continuation of his preliminary to Secretary, Federal Land Commission in case of Nawab in exercise of his suo moto revisional jurisdiction–Order of Chairman, Federal Land Commission passed on 7.8.1990 in exercise of his revisional jurisdiction Paragraph 29 of M.L.R. 115 was wholly without jurisdiction and so was order passed by DLC–Held: Order passed by Chairman, Federal Law Commission and that of Deputy Land Commissioner are without lawful authority and of no legal effect–Appeals allowed–Per: Saiduzzam Siddiqui, J. (Majority view) PLJ 1998 SC 785

Court Decisions
1. Appeal under S. 3, Law Reforms Ordinance 1972
2. Intra Court Appeal
3. Intra Court appeal–Competency
4. Intra-Court-Appeal–Maintainability of
5. Whether Intra Court appeal is not competent
6. High Court appeal
7. Acceptance of Constitution petition
8. Appeal against Acceptance of Writ
9. Constitutional jurisdiction whether Civil Jurisdiction
10. Derogatory remarks passed against appellant by Single Bench
11. Auction
12. Establishment of coach/bus stands–
13. Expression “original order
14. Failure in one paper of M.A. English
15. Levy of excise duty and sales tax on production capacity procedure
16. Maintainability of Appeal
17. Punjab Local Council Election Rules 2001
18. Recommendation for appointment as Police Inspector
19. Registration of Trade Union
20. Scope-
1. Appeal under S. 3, Law Reforms Ordinance 1972, was maintainable in two eventualities i.e. where decree or final order was passed by single Judge of High Court in exercise of its original civil jurisdiction and against an order under Art. 199 (1) of Constitution passed by Single Judge–Present case does not fall under any one of such eventualities, therefore appeal against disposal of contempt application by Single Judge was not maintainable under S. 3 of Law Reforms Ordinance 1972. PLJ 2003 Lahore 1464
2. Intra Court Appeal—Order or decree of lower Court not against party—Such party cannot be allowed to file appeal—Party appealing against a finding should get such finding embodied in order or decree–Party can be allowed .to raise new point if there is no real prejudice to opposite party and point is requiring no evidence—Objection as to jurisdiction apparent on face of record or plea going to root of case or a question of law or constitutional issue raised for first time upon facts admitted or proved—Such pleas can be entertained in interest of justice–Att. 199 Constitution (1973). P L J 1980 Lahore 665 School teachers–Appointment of–Salaries withheld–Writ petition accepted–Appeal to–Respondents are school teachers–By virtue of their status in society and requirement of their office, they need clean clothings–They also require health, care, shelter and food for themselves and their families–For all these things, they ought to get their monthly salary in lieu of their duties–But they have been for years together denied their lawful right to receive salaries, although they are being made to perform their duties–Held: These cases do provide apt example of contravention of fundamental rights–Held further: Concerned functionaries of Government have not refused their regularisation, which will be presumed that Government has no objection to their appointments–Hence, appellants have neither legal nor moral basis for withholding salaries of respondents, as salary is no longer bounty of state–Appeals, therefore, dismissed. PLJ 1996 Lahore 819
3. Intra Court appeal–Competency–Intra Court appeal was not maintainable in view of proviso of S. 3(2) of Law Reforms Ordinance, 1972. PLJ 2002 Lahore 2059
4. Intra-Court-Appeal–Maintainability of–A plain reading of proviso to subsection (2) of S. 3 means that no appeal will be available or competent before a bench of two or more judges of a High Court from an order made by a single judge of that court in a constitutional petition, if such petition arises out of “any proceedings” in which law applicable provided for at least one appeal against original order–Reference is clearly to proceedings taken under any statute which prescribes an hierarchy of officers or authorities for carrying into affect purposes of such statute including enforcement of rights, if any, created thereunder. PLJ 1996 Lahore 1501
5. Whether Intra Court appeal is not competent– True that writ petition had arisen out of proceedings under Criminal Procedure Code, but bar contained in Section 3(2) is not attracted merely for reason that law out of which proceedings have arisen, provides for an appeal or revision–In order to take away tight of appeal, it has to be shown that original order in proceedings was appealable or revisable–Held: Mere fact that against certain other orders which were not under challenge, an appeal or revision is provided by Cr.P.C., cannot take away right of appeal against learned single Judge. PLJ 1996 Lahore 82
6. High Court appeal—Suit was filed by beneficiaries against Mutawallis and their servants to restrain them from carrying out any development or construction in respect of Trust property—Application for grant of interim injunction was also filed alongwith the suit by plaintiffs which application was granted by High Court in original jurisdiction and contract for construction of property arrived at between Mutawalli and the builder was suspended—Mutawallis had filed High Court Appeal against order of Single Judge of High Court—Plaintiff had alleged mismanagement of the Trust properties—Act of Mutawalli in amalgamation of suit properties with other property was against the object/intention expressed by donor in the deed—Even if it was accepted that mode of use of suit properties by lapse of time or non-existence of lineal male descendants was capable of being carried out that would not give the Manager of properties to use the same in any other form except with the leave of the Court under Doctrine of Cypres—Suit properties had been demolished for construction/whereby nature of properties and mode of use was being changed by converting same for commercial project which use would be against the wishes of donor of said property—Majority decision or beneficial nature of proposed project would not bring actions of defendants/Mutawallis within mandate of law—High Court in order to preserve suit property from further erosion, had suspended operation of contract—Discretion had been exercised by Single Judge who had not only inherent power to grant injunction in fit case even if case did not fall within the four corners of principles for grant of injunction under O.XXXIX, Rr.1 & 2, C.P.C. to prevent the ends of justice from being defeated by an order specified in S.94(e), C.P.C. but had also such power in its disciplinary jurisdiction over the Waqf properties—Order of Single Judge could not be interfered with in High Court Appeal, 2003 Lawvision 69 = 2003 CLC 771
7. Acceptance of Constitution petition–Appeal against–Whether appeal is maintainable–Question of–A plain reading of Section 8 of Industrial Relations Ordinance, 1969 shows that its sub-section (3) provides a right of appeal to trade union if registration is not done by Registrar in violation of provisions of this section–Registration of a trade union can he cancelled by Labour Court upon a complaint made in writing by Registrar of Trade Unions–Section 3(2) of Law Reforms Ordinance, 1972 only speaks about one appeal, one revision or one review to any court, tribunal or authority against original order–Held: Right of appeal having been provided under relevant law in this case, present appeal is not competent. PLJ 1993 Karachi 457
An order which promotes equitable consideration and washes out injustice inflicted on not less than 44 persons, cannot be held to be illegal especially when no right of appellant has been infringed–Held further: Such an order cannot be allowed to be questioned in constitutional jurisdiction–Appeal dismissed. PLJ 1990 Lahore 16
8. Appeal against Acceptance of Writ — Selection was being made by Punjab Public Service Commission and it was within its domain to ensure that candidates who appeared before them possessed requisite qualification–From tenor of public notice it is evident that teaching experience must be in regular capacity–There was no post of Additional Resident Medical officer in Urology Department of Nishtar Hospital Multan and arrangement under which Dr. N performed services appears to have been made only to accommodate him and same cannot be equated with that of regular employee of department, according to Manual of Policy Decisions of Punjab Public Service Commission (Revised 1986 Edition) Page, 27–Appeal dismissed. PLJ 1998 Lahore 293
9. Constitutional jurisdiction whether Civil Jurisdiction–Constitutional jurisdiction though original jurisdiction is distinct from Civil Jurisdictional as per dictum of Supreme Court in Ahmad Khan’s case PLD 1968 SC 171. PLJ 2002 Lahore 799
10. Derogatory remarks passed against appellant by Single Bench- Setting aside of–Division Bench found nothing on record to indicate as to what material found favour with the Single Judge to disbelieve appellant’s statement and pass impugned order–Appellant (S.H.O.) was neither issued any show-cause notice to explain his conduct nor to file written reply–Observation and direction against appellant given in impugned order were, thus, arbitrary and not sustainable in law- Impugned order of single judge was, thus, set aside in circumstances. PLJ 2002 Lahore 325
Appellant an employee of Education Department case of promotion not being considered due to pendency of enquiry and adverse ACR–Writ Petition filed dismissed–Appeal against–Impugned order challenged on the ground of mis-reading and non-reading of record–Held–Learned single Judge admitted claim of appellant that un-communicated adverse remarks could not be considered against appellant for deferring his case for promotion yet dismissed his petition–It is settled principle of law that Public functionaries are bound to act in accordance with law–High Court while allowing inter-court appeal directed that case of appellant be placed before competent authority for appropriate orders–I.C.A. allowed. PLJ 2003 Lahore 1242
Appellant never came up with requisite consideration money which was a pre-condition involved in opening of letter of credit within 21 days of contract–A contract for sale of goods is not a contract–In relation to such a contract, a permanent injunction under Specific Relief Act cannot be issued–Where a permanent injunction cannot issue, an interim injunction also does not arise to be administered–Moreover in relation to contract of sale of goods, compensation in terms of money would be adequate consideration, and, therefore, no element of irreparable loss would subsist, again coming in way of grant of interim injunction relative to such contract–No cause for interference in impugned order–Appeal disposed of. PLJ 1998 Karachi 318
11. Auction–Rejection of bid of petitioner without assigning any reason and without providing opportunity of hearing to him–Effect–Matter was ‘referred to appropriate Authority with direction to provide opportunity of hearing to petitioner and for taking decision that such Authority may deem fit and proper while keeping in view principles of fairness and justice. PLJ 2001 Lahore 963 AIR 1985 SC 1147; 1970 SCMR 542; 1971 SCMR 533; 1972 SCMR 63; 1974 SCMR 337; 1993 MLD 1500; 1994 SCMR 1758; AIR 1986 SC 1527; PLD 1994 Lahore 315; Rookke’s (1598), 5 Co. Rep. 99(b); (1891) A.C. 173; (1945) 69 CLR 613; 1985 All ER l ref
12. Establishment of coach/bus stands–Environmental atmosphere whether polluted, being question of fact, jurisdiction of High Court under Art. 199 of the Constitution would not be attracted. PLJ 2002 Lahore 908
13. Expression “original order”–Object and scope–Expression “original order” used in proviso is to distinguish same from appellate or revisional order, or an order passed in exercise of review jurisdiction–Where law applicable to proceedings giving rise to Constitutional petition provides for one appeal, one revision or one review against original order, proviso to Section 3 (2) of Law Reforms Ordinance, 1972, is not applicable. PLJ 2001 SC 1542
14. Failure in one paper of M.A. English–Writ against–Orders for re-evaluation of said paper–Marks in two questions changed–IInd Petition for declaration of result based on re-evaluated script–Dismissal of–Appeal against–High Court noted `glaring irregularities’ in marking of script of appellant and has found `mala fide’ on record, hence, there was good ground made out for further inquiry in terms of law laid down in PLD 1975 SC 331–Respondents were directed to declare result of appellant based on re-evaluated script in accordance with university regulations–Appeal allowed PLJ 1999 Lahore 1569
Higher qualification of respondent has already been taken into account by giving him B.S-6–He is having qualification of a diploma holder in dispenser course–He has not enhanced his qualification by passing F.Sc examination, neither persons of his qualification are included in the relevant notification dated 27.7.87–Authority which can pass order, can vary, amend, alter or rescind that order–Held: Respondent not entitled to advance increments–Impugned order held to be valid and operative–Appeal accepted. PLJ 1996 Lahore 1136
It is settled law that a tenant cannot be evicted from his tenement without due process of law–Appellants were tenants of Municipal Committee– But their shops were sold to respondents–Relationship between appellants and respondents was that of a landlord and tenants and was governed by provisions of Punjab Urban Rent Restriction Ordinance, 1959, but appellants were evicted from their tenement without any order from forum of competent jurisdiction—Action of dispossession was neither appealable U/S. 116 of ord. 1979, nor there was any other remedy available except U/S. 9 of Specific Relief, Act, which is not adequate- Appellants were put back to possession–Impugned order set aside- Appeal allowed. PLJ 2000 Lahore 271
Judgment of Single Judge whereby respondents constitutional petition was accepted and petitioners were directed to issue them appointment letters, assailed–Respondent passed written test and interview conducted by appellants–Appellants sent summary to Chief Minister who had approved same and observed that recruitment was made on merit and that appointment letter be issued–Thereafter, respondent Authority re-submitted summary to Chief Minister with submission that matter may be looked into keeping in view economy measures whereupon petitioners were asked whether their department can do without those 15 posts–No summary thereafter, having been submitted, earlier order of Chief Minister remained in field–Action of appellants to withhold appointment letters of respondents was, thus, without lawful authority–Order of Single Judge directing appointment of respondents, being in accordance with law and within jurisdiction would not warrant interference. PLJ 2003 Lahore 725
Learned single judge has observed that no such list of 13282 workmen was filed with petition–No such list was ever verified or prepared by Registrar as envisioned in Section 22 (5) of I.R.O–No challenge prior to poll on issued list was raised–Even after poll, no specific prayer in petition was made, questioning dimension of voter’s list–Total number of employed workmen in section 22 (9) cannot be indefinite list of voters prepared under section 22 (5) of I.R.O.–Allegations of rigging, such as they may have been, ought to have been raised at level of departmental functionaries and an enquiry ought to have been solicited–It was only against outcome of such exercise or refusal to process it that relevant grievance could be brought to High Court under Art. 199 of Constitution of Pakistan–Normally corrective measure being confined to proper, further or additional enquiry, leading to appropriate and lawful rights rather than holding of enquiry in High Court, itself–Held: Respondent No. 2 Union, which polled 4330 votes seem to have qualified the required limit in first proviso to Section 22 (9) I.R.O.–Appeal not maintainable and accordingly dismissed. PLJ 1998 Karachi 150
Leave to appeal was granted to consider the questions whether the High Court Appeal could be dismissed in limine without sending for the record and whether O. XLI, R. 11(1), C.P.C. was invoke able 2000 Lawvision 2
15. Levy of excise duty and sales tax on production capacity procedure–Withdrawal by C.B.R.–Demand of Additional Tax Penalties–Validity–Appellants withdrew excise duty and Sales Tax on basis of production capacity–Respondents filed writ petitions, but withdrew on statement of counsel of appellants assuring relief–Subsequent Constitutional petition filed by Association accepted by Single Judge in chamber of High Court–Challenge through I.C.A.–Promissory estoppel–Concept of–Maintainability of I.C.A.–Question of–In case letters are put in juxta-position then it is Crystal clear that appellants did not make any representation to respondent in order to find estoppel, representation i.e. party’s, declaration act or omission must be clear, definite, unambiguous, unequivocal–Person making representation should so conduct himself that reasonable man would take representation to be true and believe that it was meant that he should act upon it–Subsequent letters also did not reveal that any commitment was made by appellant with respondents–Learned counsel for respondents failed to bring case of respondents within parameters prescribed by Supreme Court–Aforesaid provisions of law prescribed conditioned precedent to levy aforesaid tax by issuing notification in official gazette–In present case no notification was issued by competent authority under provisions of aforesaid laws–Therefore, certain correspondence between appellants and respondents did not bring case of respondents under doctrine of promissory estoppel–Promissory estoppel cannot be invoked for directing doing of thing which was against law when representation was made or promise held out–Contention of appellants counsel has no force that respondents were entitled relief. till 31st May, 1994 keeping in view financial year–Court has only jurisdiction to interpret law and has no jurisdiction whatsoever to take role of legislature or policy maker–It is settled principle of law that if exemption from payment of excise duty or any other tax has been granted for specific period on certain conditions and if person fulfils those conditions, he acquires vested right–He cannot be denied exemption before expiry of specific period through executed instrument like notification–Keeping in view contents of writ petition and correspondence between appellants and respondents, vested right did not accrue to respondents–Appellants had authority to levy and collection of duty and impose sales tax–Impugned order in Constitutional petition of appellants by respondents was not appealable before Higher authority of appellant–Held : I.C.A. is maintainable and bar under proviso of Section 3(2) of Law Reforms Act, 1972 is not attracted–I.C.A. accepted. PLJ 2002 Lahore 1066
16. Maintainability of Appeal– Appellant requested for pre-mature retirement which was approved by respondent–Later on appellant requested for cancellation of retirement order and request was not accepted by respondent–Petitioner filed a petition under section 25-A, IRO, 1969 before Punjab Labour Court No. 9, Multan which was allowed–On revision order was set aside and interim relief was dismissed by Punjab Appellate Tribunal whereupon W.P. No. 1702/88 was instituted by appellant with prayer that his retirement benefits should be calculated on basis of his last pay drawn i.e. on 16.4.1988 and not on 3.5.1987, which was dismissed–This I.C.A. is not competent in view of proviso of section 3 (2) of Law Reforms Ordinance 1972–Above provision of law has been considered by Supreme Court of Pakistan in Mst. Karim Bibi vs. Hussain Bakhsh and others (PLD 1984 S.C. 344) and Muhammad Abdullah vs. Deputy Settlement Commissioner Central Lahore (PLD 1985 Supreme Court 107) wherein it has been held that an I.C.A. is not maintainable where against original order, provision of appeal, revision or review is provided under relevant statute–Held : Relying upon above stated judgments of Supreme Court, appeal is dismissed as not maintainable–Appeal dismissed. PLJ 1996 (Lahore) 567
No restraints on the powers of Division Bench such as those construed qua Single Judges having Regular First Appeals governed by High Court (Lahore) Rules and Orders, Vol. V, Chap. 3-B, R. 1, noris there any restrictive practice — Original side jurisdiction from which the High Court appeal was occasioned , is peculiar to the High Court of Sindh and may not be saddled with the technicalities under kO. XLI, C.P.C. applicable stricto senso to appeals mandated by sec. 96, C.P.C. — High Court , while exercising jurisdiction under S. 3, Law Reforms , Ordinance, 1972, has to apply its mind to the controversy involved and , if and when finding necessary , have the original side record placed before it— principles. 2000 Lawvision 2
Non-association of appellant in proceedings before Respondent No. 1 before registration of respondent No. 4 challenged in writ petition–Intra Court appeal–Whether maintainable–Question of–Question whether members of respondent No.4 were workmen or not and they were not employees of Mill, being a question of fact, can be agitated before Labour Court by moving Registrar, and could not be subject matter of proceedings under Article 199 of Constitution–Held: Appellant having alternate remedy for action under Section 10 of I.R.O., could not avail remedy of Writ Petition, and appeal against order of cancellation of registration having been provided under Section 11 of I.R.O., Intra Court Appeal is not competent–Appeal dismissed. PLJ 1994 Note 73
Private respondents as alleged by them were closely related to Mst. Sardar Begum, the original owner of property, as such could not raise a plea that they remained unaware of acquisition proceedings initiated in 1965 and dispossession of owners from premises—LDA tribunal was not vested with jurisdiction to entertain reference at the instance of respondents, therefore, liable to be quashed being void–Appellant was given a solemn under taking by authorities that he would be compensated by giving him suitable plot in lieu of property in dispute if he did not object to acquisition proceedings–Held : Appellant being a third party claiming rights in property not as one of heirs of owner, therefore, can maintain constitutional petition to question of jurisdiction of L.D.A. Tribunal–Held further : Conduct of private respondents of not appearing on scene at any stage of proceedings is such that in fact their predecessor-in-interest was not brother of Sardar Begum as alleged Begum Almas Daultana and after her death her heirs categorically denied that Ghulam Muhammad was brother of Mst. Sardar Begum, hence, both appeals accepted, proceedings commenced on reference made by Respondents declared to be without of lawful authority with affection to respondent No. 1 to 3 to further compensate appellant in terms of agreement dated 28-11-1981. PLJ 1996 Lahore 759
17. Punjab Local Council Election Rules 2001–Appellants returned candidates, Nazim and Niab Nazim, Union Council respectively–Election results declared void by Election Tribunal on the grounds that majority of voters could not cast votes due to “Hala Gula” procession–Thus results materially effected–Challenged in writ petition which was dismissed–Intra-Court appeal there against–Orders challenged on grounds–Results not materially effected–Mere allegations of Hala Gula procession not sufficient to hold that results materially effected–Judgment of the election tribunal vague–Recovery memo relied upon by tribunal not admissible in evidence–Verification of annexures to the election petition not dealt with properly–Contentions repelled–geld : Since election process was obstructed and voters could not cast their votes, the election results has been materially effected–Further held admissibility or otherwise of the recovery memo would be of no relevance no illegality in the orders impugned found–ICA dismissed. PLJ 2002 Lahore 1808
18. Recommendation for appointment as Police Inspector–Withdrawal of recommendation on ground that appellant submitted revised matriculation certificate with revised date of birth–Writ against–Dismissal of–Appeal against–Appellant has passed written and oral test and was recommended for appointment and there is no finding of any misconduct or corrupt practice against appellant–A.G. has failed to quote any particular rule which prohibits appellant to provide his revised particulars after closing date and such revised particulars are not accepted by PPSC–Appellant can obtain revised documents after getting some wrong entries corrected in accordance with law, which appellant has done in this case–Appeal allowed. PLJ 1999 Lahore 1536
19. Registration of Trade Union– Non-association of appellant in proceedings before Respondent No. 1 before registration of respondent No. 4 challenged in writ petition–Intra Court appeal–Whether maintainable–Question of–Question whether members of respondent No.4 were workmen or not and they were not employees of Mill, being a question of fact, can be agitated before Labour Court by moving Registrar, and could not be subject matter of proceedings under Article 199 of Constitution–Held: Appellant having alternate remedy for action under Section 10 of I.R.O., could not avail remedy of Writ Petition, and appeal against order of cancellation of registration having been provided under Section 11 of I.R.O., Intra Court Appeal is not competent–Appeal dismissed. PLJ 1994 Note 73
20. Scope–Proceedings assailed before High Court in exercise of Constitutional jurisdiction–Where law applicable to proceedings, subject-matter of petition under Article 199 of Constitution, provided for at least one appeal, or one revision, or one review to any Court, Tribunal or Authority against original order, there would be no appeal to a Bench of two or more Judges of High Court from order made by a Single Judge of same Court under Article 199 of Constitution. PLJ 2001 SC 1542
Single Bench of High Court in exercise of her constitutional jurisdiction allowed her interim relief to appear said examination which she, however, passed–Validity–Single Bench’s judgment appeared to be influenced by reading of Pars 23 of the Rules which is wrong interpretation of the same–Para 23, caters for cases of such candidates only who pass all subjects of Part I in one go but were unable to appear in examination of Part II in the year following–Para 23 of the Rules thus, would not cover case of respondent who admittedly failed in one subject in Part I examination, therefore, it was mandatory for her to take examination said subject alongwith all subjects of Part II of the intermediate–Nothing was brought on record to suggest that any discrimination had been resorted to in enforcement of said Rules–Impugned judgment of Single Bench was set aside and respondent on payment of requisite fee was directed to be allowed by appellant to take Part I and Part II examination of Intermediate in immediate following annual or supplementary examination to be conducted by appellants for said course. PLJ 2000 Lahore 1
Single Judge in their respective orders had seen to it that exemption is to be enjoyed by importers within four corners of Notification in question, and upon fulfillment of all conditions thereof and not otherwise. PLJ 2003 Lahore 87

Material Law Regulation, 1959

Allotment of land by Border Area Committee—Confirmation of such allotment subsequently after scrutiny by Border Area Committee in favour of predecessor of petitioner—Border Area Committee after fifteen years set aside allotment on miscellaneous application—Legality—Matter of allotment having become past and closed transaction. Border Area Committee could not have reviewed its earlier adjudication or nullify legal efficacy thereof—Mere existence of power to scrutinize did not authorize the committee to make repeated scrutinies leaving matter of allotment all the time open for scrutiny and leaving the sword hanging on the head of allottee—There has to be finality at some stage—Doctrine of res-judicata may not apply directly, yet the principle underlying the same was appropriately attracted in such like matters. 1981 SCMR 1180; 1989 SCMR 452; 1988 CLC 2289; PLD I987 SC 145; 1987 CLC 2378 and 1988 CLC 2277 ref. 2003 Lawvision 106 = PLJ 2003 Lahore 515

Court Decisions
Transferee bonafide believing to be rightful owner and making improvements in property–Compensation for–Claim of–Option to sell interest -in property to occupant or to purchase interest of person in occupation–Under second part of Sections 2 and 51 of both Acts, option is given to owner but he is to purchase interest of person under threat of eviction–Owner is sole arbiter whether to sell his interest in property at hands of occupant or to purchase interest of latter–Held: In this case, trial as well as second appellate court have deprived owner of suit land to exercise such an option, by application of principle of promissory estoppel. PLJ 1992 SC 139

1. Attestation of mutation whether conveyed title to vendee/donee
2. Burden of proof
3. Controversy relating to entitlement to inheritance and impugned mutation
4. Correction of entries in Revenue Record
5. Correction of mutation
6. Entries of mutation—Effect
7. Evidentiary value of Entries in duly sanctioned mutation:
8. Gift by deaf and dumb persons
9. Gift mutation, assailing of
10. Inheritance
11. Mortgage of land against loan
12. Mutation
13. Mutation by Pardahnashin Ladies
14. Mutation confers no title
15. Mutation of exchange, Requirements
16. Mutation register
17. Mutation, attestation of
18. Mutation, legality of
19. Proof of Mutation attestation
20. Purpose
21. Reasonableness of Transaction of exchange
22. Requirements
23. Sanction of mutation in pursuance of decree
24. Sanction of Mut
25. Scope
26. Status of Mutation entries
27. Transaction embodied in mutation
1. Attestation of mutation whether conveyed title to vendee/donee—Mere attestation of mutation does not convey any title to vendee/donee—Such transaction must be proved independently through cogent evidence by beneficiary claiming title thereunder—Entries in revenue record are maintained for fiscal purpose alone—NO independent evidence had been brought on record to prove making of gift/tamleek by alleged donor in favour of defendants—Defendants had failed to establish through independent evidence factum of making of tamleek of land in question in their favour, therefore, they have failed to discharge legal onus which law had placed on them. P L J 2004 Pesh. 14 Whether mutations were of gift or of sale–Question of–In these mutations words ‘Hibbs’ and ‘Wahiban’ in relevant columns of mutation, were cut and overwritten as ‘Bai’ and Its. 1,000/- was inserted as sale consideration for land in each of these mutations though area covered by them greatly varied lt was, therefore, rightly observed by learned High Court that if parties to transaction had changed their mind, revenue authorities were required to reject mutation of sale after recording such report in ‘Roznamcha Waqiati’, as required under Section 42 (1) of West Pakistan Revenue Act, 1967, at instance of owner and then all formalities required for completion of transaction of sale should have. been completed before attestation of sale mutation–Neither such report was made to Patwari nor any entry was made in ‘Roznamcha’ wherefrom it can be gathered that both parties had changed their mind and agreed to convert gift transaction into that of sale–Held : Purpose behind these mutations, was to get suit land partitioned in manner that each one of them shall become owner of specific Khasra number to exclusion of others, for that gift mutations were resorted to as a device to achieve that end. PLJ 1996 SC 58
2. Burden of proof—Held, in order to prove the existence of a transaction of exchange through mutation, the party that relies on such mutation was bound to prove the both—Failure of party relying on the mutation to discharge its burden was a blow to the existence of any exchange transaction between the parties. PLD 2003 SC 688 Leave was granted by S.C to examine contentions that two illiterate sisters had been deprived of their land in collusion with Patwari and Courts below had ignored some basic features of case while upholding legality of impugned mutation that at time of attestation of mutation none of male relatives of women was present, that they were alleged to have been identified by a person who was Lambardar of a different village who did not state as to how he was acquainted with two sisters residing in a different village; that according to one of vendees who appeared on behalf of other vendees at trial consideration for sale was paid before Tehsildar while attesting officer denied that it was so paid and that neither mutation register nor relevant page of Patwari’s Roznamcha Waqiati bore thumb-impressions of two sister. P.L.J. 2002 SC 427 Where pleas of fraud, deception and misrepresentation had been taken by the illiterate Pardahnashin ladies in alleged disposal of their properties, the onus in such cases lay on the person who had taken advantage of the transaction to prove the genuineness and bona fides of the document through which transaction had been executed and the contents of such documents were fully conceived and understood by the executant independently and freely, Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642 ref. 2001 Lawvision 130 = 2001 SCMR 1591 Where pleas of fraud, deception and misrepresentation had been taken by the illiterate Pardahnashin ladies m alleged disposal of their properties, the onus in such cases lay on the person who had taken advantage of the transaction to prove the genuineness and bona fides of the document through which transaction had been executed and the contents of such documents were fully conceived and understood by the executant independently and freely, 2001 SCMR 1591 Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642 ref.
3. Controversy relating to entitlement to inheritance and impugned mutation–Trail Court had taken into consideration evidence in support by sect of parties–Appellate Court was not right in holding that those proceedings before Revenue Officer could not be considered by Trial Court, in view of fact when presence and participation of close relatives of parties and his statement against his interest that deceased (his uncle) was to Shia by faith was not disputed by plaintiff. AIR 2003 Lawvision 158 = PLJ 2003 Lahore 9951936P.C.60;1989 CLC 2412;1989 CLC 1591;1989 CLC 1712; 1994 CLC 1942; 1990 MLD 2399; 1998 MLD 1857; PLD 1994 SC 291; PLD 1996 SC 267; 1997 SCMR 1139 AND 1989 MLD 1013 ref.
4. Correction of entries in Revenue Record—Total area of land in question was allotted to two allottees respectively—Total land was exhausted, but in two entries in Register R.L.II additional area was created and said additional area, which in fact did not exist, was allotted to predecessors-in-interest of the petitioner—On application of successor-in-interest of allottee of land. Authorities corrected entries of Revenue Record—Additional area created in Register R.L.II factually being none-xistent, Authorities rightly ordered for correction of Revenue Record as fictitious entries could not be allowed to stay in the revenue documents. 2001 Lawvision 2 Burden of proof that such entries were correct was on the party in whose favour such entries existed and not on the party challenging correctness of such entry. P L D 1993 Pesh. 127
5. Correction of mutation –It was recommended by Tehsildar and A.C. that respondents may be directed to seek remedy in competent court as change had been made in consolidation proceedings–Ignoring these proposals, District Collector directed correction through Seat Intimal without assigning any reason and without hearing concerned parties. He did not apply-his mind to point whether such a correction was warranted after confirmation of consolidation scheme of revenue estate–Held: Petitioners having been condemned unheard, order of District Collector is liable to be set aside on this score only–Petition accepted and case remanded. PLJ 1992 Revenue 86
6. Entries of mutation—Effect—Entries of mutation which were not incorporated in Jamabandi would not carry presumption of truth—Such entries were intended to keep record for collection of land revenue—Such ,entries, however, having been prepared by officials in discharge of their official duties were admissible in evidence and were entitled to great weight according to circumstances of each case—Onus to prove evidential value of such entries was upon those who were beneficiaries of those entries. 1994 M L D 1269
7. Evidentiary value of Entries in duly sanctioned mutation:- Entries in duly sanctioned mutations which were still not incorporated in the record of rights, would not carry presumption of truth Nature of mutation proceedings being summary in nature, they were intended to keep record of collection of land revenue ¬Mutations, however, were admissible evidence and were entitled to weight dependent upon circumstances of each case To prove factum of admission as recorded in the entries of mutation, person relying upon such entries has to prove admission in consonance with the principles of Anon e Shahabad which are applicable to prove admissions Initial onus of proof of a transaction embodied in mutation is essentially upon the beneficiary of the mutation. 1993 C L C 1374 Nageshar Bakhsh Singh v. Mst. Ganesha AIR 1920 PC 46; Nirman Singh v. Thakur Lai Rudra Partab AIR 1926 PC 100; Wali Muhammad v. Muhammad Bakhsh AIR 1930 PC 91; Gurunath Radhaswami v. Bhimappa PLD 1948 PC 123; Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411; Habibur Rehman and another v. Mst. Wahdania and others PLD 1984 SC 424; Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan PLD 1986 Kar. 74; Muhammad Bakhsh v. Ziaullah and others 1983 SCMR 988; Mst. Hawa v. Muhammad Yousuf and others PLD 1969 Kar. 324; National Bank of Pakistan, Kar. v. Dawood Yousuf Mithani and 2 others PLD 1978 Kar. 42; National Bank of Pakistan v. Mst. Hajra Bai and 2 others PLD 1985 Kar. 431; Karamat Ali and another v. Muhammad Younus Haji and others PLD 1963 SC 191; Abdul Majid and others v. Khalil Ahmad PLD 1955 FC 38; Pathana v. Mst. Wasai and another PLD 1965 SC 134; Sikandar v. Sultan Muhammad PLD 1974 SC 11; Khera Din and 6 others v. Taza Din and 46 others 1968 SCMR 1027; The Province of West Pakistan through the Deputy Commissioner, Khairpur v. Imam Bukhsh 1970 SCMR 465; Muhammad Hussain and others v. Ahmad Khan and another 1971 SCMR 296; Azhar Saleem v. Muhammad Anwar Khan and others 1974 SCMR 484; Haji Noor Muhammad v. Ghulam Masih Gill PLD 1965 BJl; Muhammad Amin and others v. Mian Muhammad PLD 1970 BJ 5;. Bhagoji v.. Bapuji (1888) 13 Born. 75; Gangabai v. Fakirgowadda AIR 1930 PC 93; Gurunath Radhaswami v. Bhimappa AIR 1948 PC 210; Mst. Aisha Bibi and others v. Muhammad and others PLD 1957 Lah. 371; Muhammad and others v. Sardul PLD 1965 Lah. 472 and Hakim Khan v. Nazeer Ahmad Lughmam and 10 others 1992 SCMR 1832 ref. Entries in duly sanctioned mutations which were yet to be incorporated in the record of rights, would not carry presumption of truth-Nature of mutation proceedings was summary in nature and was intended to keep record of collection of land revenue Such entries made under S.42, West Pakistan Land Revenue Act, 1967 were admissible under Art.49, Qanun¬ e Shahadat, 1984 Entries in mutation being admissible. in evidence were entitled to weight dependent upon circumstances of each case; parties relying upon entries in mutation were required to prove admission of other parties in consonance with principles of evidence which were applicable to prove admissions Initial onus of proof of a transaction embodied in mutation was essentially upon beneficiary of the mutation. P L D 1993 Lah. 33
8. Gift by deaf and dumb persons- One of petitioners was produced in court on direction of court–He could not respond to questions put by court and there was no response either when he was given a paper containing Urdu writing–He can only understand simple signs connoting eating, drinking water etc.–Other petitioner having not been produced, presumption is that his state may be worse–Petitioners are found unable to understand or to communicate either through spoken or written words–Question arises as to how they could understand or comprehend higher questions of practical life such as ownership, property, gift etc.–At time of attestation of mutation, Revenue Officer found that parties had accepted fact of alienation of land–Held: Both petitioners being unable to speak or express themselves, both reports of patwari and Revenue Officer fail to meet provisions of Section 42(2)(7) and (8) of Land Revenue Act. PLJ 1993 Revenue 18
9. Gift mutation, assailing of—Suit-land was transferred in favour of the defendant by her husband vide gift mutation attested on 25-1-1932—Plaintiffs were legal heirs of one of the daughters of the donor and they assailed the mutation in civil suit filed on 31-7-1984— Contention of the plaintiffs was that the defendant was entitled only to the extent of l/8th share in the suit property—Trial Court decreed the suit in favour of the plaintiffs whereas the Appellate Court allowed the appeal and dismissed the suit—Validity—Plaintiffs failed to point out any misreading or non-reading of evidence on record—Appellate Court had appreciated the evidence on record and the inference drawn by such evidence was lawfully made—Judgment and decree passed by the Appellate Court did not suffer from any illegality or infirmity—High Court declined to interfere with the same. 2002 Lawvision 149 = 2002 MLD 500
10. Inheritance:- Plaintiff claiming to be entitled to inherit entire estate of deceased as his sole legal heir/brother, challenged mutation of inheritance sanctioned in favour of defendants as daughters of deceased to extent of 2/3rd share as void and ineffective on his rights—Plaintiffs alleged that defendants’ mother was married with one MD son of GM. who died in India before partition and defendants were born from the wedlock in India; and thereafter defendants’ mother married with plaintiff’s brother (deceased) namely MD son of ID—Trial Court decreed the suit—Appellate Court set aside the decree and dismissed the suit, which decision was upheld by High Court in revision—Validity—Plaintiffs could not prove that defendants were the daughters of said MD son of GM, with whom their mother had married in India—Both the Courts below had given much weight to defendants’ evidence being more relevant in comparison to the plaintiff’s evidence and had rightly found the defendants to be the daughters of deceased—Appellate Court had correctly appreciated and believed the evidence of two defendants’ witnesses hailing from same village, where marriage of defendants’ mother had taken place with MD son of ID—Defendants had placed on record copies of Nikahnamas and identity cards to establish that they were daughters of MD (brother of plaintiff)—Copy of Nikahnama produced did not require production of witnesses to prove the same—Inheritance mutation had been sanctioned by Revenue Officer in ‘Jalsa Aam’ after having verified that defendants were daughters of deceased MD—Lambardar in whose presence mutation was attested had supported the defendants’ version—Plaintiff had not challenged inheritance mutation before revenue hierarchy, which remedy was available to him according to law—Plaintiff could not point out any illegality in impugned judgment justifying interference by Supreme Court—Petition was dismissed and leave to appeal was refused in circumstances. Rasul Bibi v. Waryam 1992 SCMR 1520 ref. 2002 Lawvision 194 = 2002 SCMR 1408 Dispute was with regard to Shari share in the property left by father and uterine brother of the plaintiff—Uterine brother who was also co-sharer in the property left by the father of the plaintiff was holding the same for and on behalf of all the co-sharers— Contention of the defendants was that the suit was time-barred—Validity—Assailing of adverse entry in Revenue Record was not barred by limitation and could not amount to ouster of a co-sharer in the property—Brother, on the basis of such entry, could not legally claim adverse possession against his sister—Suit was not time-barred in circumstances. Mst. Namdara and 3 others v. Sahibzada and others 1998 SCMR 996 ref. 2002 Lawvision 34 = 2002 CLC 1539 Where mutation was attested on 25-1-1932 and the writ was filed on 31-7-1984. such suit was barred by time. 2002 Lawvision 149 = 2002 MLD 500
11. Mortgage of land against loan- It is significant to note that redecessor-in-interest of petitioners, during his life time, had raised plea of fraud in civil court but his suit was dismissed as withdrawn after his death—His thumb marks on various documents are also not denied but plea of fraud is being emphasised to escape his liability–His blindness has also been stressed although no such evidence is on record–Held: Attestation of mutation is a summary proceeding and intricate and complex questions of law and fact cannot be inquired into by attesting Revenue Officer–Held further: Mutation has correctly been entered and attested–Petition dismissed. PLJ 1992 Revenue 7
12. Mutation :– sanctioning of mutation or reporting oral gift to Revenue Authorities. Same would be a strong circumstance in support of transaction of gift. 2004 C L C 33 Mutation proceedings are intended primarily for fiscal purposes for collection of land revenue and they are by no means judicial proceedings in which right and title of property is to be determined. PLJ 2004 Lah. 193
13. Mutation by Pardahnashin Ladies :- Where pleas of fraud, deception and misrepresentation had been taken by illiterate Pardahnashin ladies in alleged disposal of their properties, onus in such cases lay on person who had taken advantage of transaction to prove genuineness and bona fides of document through which transaction had been executed and contents of such documents were fully conceived and understood by executant independently and freely. P.L.J. 2002 SC 427 Pardahnashin ladies emphatically denied sale and their appearance before Revenue Officer or receipt of any sale consideration – Where evidence of beneficiaries in record was not only unsatisfactory but was incredible, such evidence could not be attached any credence–Pardahnashin ladies, in circumstances, were not a party to mutations and they were totally kept in dark about transactions and fictions mutations were got attested with connivance of Revenue Staff–Mutation proceedings wherein two ladies had denied their participation were not only in gross violation of S. 42(7) of West Pakistan Land Revenue Act, 1967 but were also false and fictitious, as such, mutations being illegal, entire structure built on them would fall to ground–Fraud vitiates even most solemn transaction as such any transaction based on, fraud would be void and notwithstanding bar of limitation matter could be considered on merits so as not to allow fraud to perpetuate. P.L.J. 2002 SC 427 Two illiterate women had been deprived of their land in collusion with the Patwari and the Courts below had ignored some basic features of the case while upholding tile legality of the impugned mutation; that at the time of attestation of mutation none of the male relatives of the women was present, that they were alleged to have been identified by a person who was Lambardar of a different village who did not state as to how he was acquainted with the two women residing in a different village; that according to one of the vendees who appeared on behalf of other vendees at the trial consideration for the sale was paid before the Tehsildar while the attesting officer denied that it was so paid and that neither the mutation register nor the relevant page of the Patwari’s Roznamcha Waqiati bore the thumb-impressions of the two women, 2001 SCMR 1591
14. Mutation confers no title—Once a mutation is challenged, the party that relies on such mutation in bound to revert to the original transaction to prove such original transaction which resulted into the entry or attestation of such mutation in dispute—Mutation not being a title deed, is merely an evidence of some original transaction between the parties that had been struck somewhere prior to entry of a mutation—Person relying on such mutation, in the present case, had failed to revert back to any transaction and bring on record any oral or documentary evidence thereof—Burden squarely lay on the said person to prove the transaction because the existence thereof had throughout been alleged by him in the affirmative and he was bound to fail in the event of the non-proof of the transaction. PLD 2003 SC 688 Once a mutation is challenged, the party that relies on such mutation is bound to revert to the original transaction to prove such original transaction which resulted into the entry or attestation of such mutation in dispute—Mutation not being a title deed, is merely an evidence of some original transaction between the parties that had been struck somewhere prior to entry of a mutation—Person relying on such mutation, in the present case, had tailed to revert back to any transaction and bring on record any oral or documentary evidence thereof—Burden squarely lay on the said person to prove the transaction because the existence thereof had throughout been alleged by him in the affirmative and he was bound to fail in the event of the non-proof of the transaction. 2003 Lawvision 224 = PLD 2003 Supreme Court 688
15. Mutation of exchange, Requirements— Mere entry of Roznamcha Waqiati alone was not the only requirement of S. 42, West Pakistan Land Revenue Act, 1967 but numerous steps were also to be necessarily taken. PLD 2003 SC 688
16. Mutation register Mutation register is document forming part of official record¬ Certified copies of official record would be receivable in evidence Par seeking to dislodge truth of, or genuineness of contents of sup document, held, would bear burden to prove same Where origin register could not be produced by Authority, production of certified copy thereof, by person, affected thereby, would be admissible evidence. 1986 M L D 979
17. Mutation, attestation of – Lambardar who was supposed to identify the transferors qua the land had to be to the village concerned and not at all form the Patwar circle which includes numerous villages and the people of which were not at all acquainted with the people of other villages—Identification by a Lambardar of unconcerned village was a factum that indicated doubtful nature of the transaction. PLD 2003 SC 688 Total land of illiterate Pardahnashin ladies was got mutated at their back – Ladies emphatically ‘denied the sale and their appearance before the Revenue Officer or the receipt of any sale consideration – Lambardar of the concerned village was available to witness the mutations but Lambardar of another village was presented for the purpose who had not explained as to how he knew the Pardahnashin ladies-Neither the register of mutations nor the mutation bore the thumb-impressions of the two ladies who were allegedly identified/by the Lambardar of another village – Revenue Officer while attesting the mutations had not insisted for the presence of the male relatives of the ladies who could identify them and the presence of respectables of the locality preferably the Lambardar of the area as required by S.42(7) of the West Pakistan Land Revenue Act, 1967 – Beneficiary party, in circumstances, had to establish by a strong and reliable evidence that the documents i.e. disputed mutations were genuine and bona fide and had been voluntarily and freely entered and attested at the free-will of the executants – Where the evidence of the beneficiaries in the record was not only unsatisfactory but was incredible, such evidence could not be attached any credence – Pardahnashin ladies, in circumstances, were not a party to the mutations and they were totally kept in dark about the transactions and fictitious mutations were got attested with the connivance of the Revenue Staff – Mutation proceedings wherein the two ladies-had denied their participation were not only in gross violation of S.42(7) of the West Pakistan Land Revenue Act, 1967 but were also false and fictitious, as such, the mutations being illegal, the entire structure built on them would fall to the ground – Fraud vitiates even the most solemn transaction as such any transaction based on fraud would be void and notwithstanding the bar of limitation, the matter could be considered on merits so as not to allow fraud to perpetuate, 2001 SCMR 1591 Whenever an exchange was entered into it was always for certain material considerations weighing with the parties—Appellants, in the present case, neither owned any property in the relevant village with which the land could have been consolidated nor they had any relationship at that village for whose sake they could have migrated—Comparative valuation of both the properties had no comparison whatsoever, one being sixteen times higher in value than the other – Validity—Reasonableness of an exchange transaction could be gone into by the Court like it did in a case of gift— Reasonableness of a transaction of exchange thus was a very strong as well as relevant consideration. PLD 2003 SC 688 Acquisition of proprietary right of inheritance, was not dependant on the attestation of mutation in Revenue Record—Mutation itself would not create any right, so its authenticity could not be doubted simply because it was not given effect in Revenue Record. 2003 Lawvision 128 = 2003 MLD 702 Where pleas of fraud, deception and misrepresentation had been taken by the illiterate Pardahnashin ladies m alleged disposal of their properties, the onus in such cases lay on the person who had taken advantage of the transaction to prove the genuineness and bona fides of the document through which transaction had been executed and the contents of such documents were fully conceived and understood by the executant independently and freely, Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642 ref. 2001 Lawvision 130 = 2001 SCMR 1591 Total land of illiterate Pardahnashin ladies was got mutated at their back—Validity—Ladies emphatically ‘denied the sale and their appearance before the Revenue Officer or the receipt of any sale consideration—Lambardar of the concerned village was available to witness the mutations but Lambardar of another village was presented for the purpose who had not explained as to how he knew the Pardahnashin ladies-Neither the register of mutations nor the mutation bore the thumb-impressions of the two ladies who were allegedly identified/by the Lambardar of another village—Revenue Officer while attesting the mutations had not insisted for the presence of the male relatives of the ladies who could identify them and the presence of respectables of the locality preferably the Lambardar of the area as required by S.42(7) of the West Pakistan Land Revenue Act, 1967—Beneficiary party, in circumstances, had to establish by a strong and reliable evidence that the documents i.e. disputed mutations were genuine and bona fide and had been voluntarily and freely entered and attested at the free-will of the executants—Where the evidence of the beneficiaries in the record was not only unsatisfactory but was incredible, such evidence could not be attached any credence—Pardahnashin ladies, in circumstances, were not a party to the mutations and they were totally kept in dark about the transactions and fictitious mutations were got attested with the connivance of the Revenue Staff—Mutation proceedings wherein the two ladies-had denied their participation were not only in gross violation of S.42(7) of the West Pakistan Land Revenue Act, 1967 but were also false and fictitious, as such, the mutations being illegal, the entire structure built on them would fall to the ground—Fraud vitiates even the most solemn transaction as such any transaction based on fraud would be void and notwithstanding the bar of limitation, the matter could be considered on merits so as not to allow fraud to perpetuate, 2001 Lawvision 130 = 2001 SCMR 1591 Mutation—Onus to prove—Transfer by Pardanashin lady—Burden of proof lies on every vendee who claims title under mutation much less a Pardanashin lady in whose case such burden is much aggravated. 2002 Lawvision 22 = 2002 CLC 300
18. Mutation, legality of – Leave to appeal was granted by the S.C to examine the contentions that two illiterate women had been deprived of their land in collusion with the Patwari and the Courts below had ignored some basic features of the case while upholding tile legality of the impugned mutation; that at the time of attestation of mutation none of the male relatives of the women was present, that they were alleged to have been identified by a person who was Lambardar of a different village who did not state as to how he was acquainted with the two women residing in a different village; that according to one of the vendees who appeared on behalf of other vendees at the trial consideration for the sale was paid before the Tehsildar while the attesting officer denied that it was so paid and that neither the mutation register nor the relevant page of the Patwari’s Roznamcha Waqiati bore the thumb-impressions of the two women, 2001 SCMR 1591
19. Proof of Mutation attestation- Most important entities in connection with the attestation of mutation were the Patwari Halqa who had to enter the mutation and the Revenue Officer who was to attest the same— Both the said functionaries having not been produced and examined in the Court, the mutation in question could not be said to have been proved. 2003 Lawvision 224 = PLD 2003 Supreme Court 688
20. Purpose:- Mutation proceedings are intended primarily for fiscal purposes for collection of land revenue and they are by no means judicial proceedings in which right and title of property is to be determined-Mutation proceedings are summary in nature and entries thereof, are admissible under Art. 49 of Qanun-e-Shahadat Order, 1984. 2004 Lawvision 9 = PL J 2004 Lahore 193
21. Reasonableness of Transaction of exchange-Whenever an exchange was entered into it was always for certain material considerations weighing with the parties—Appellants, in the present case, neither owned any property in the relevant village with which the land could have been consolidated nor they had any relationship at that village for whose sake they could have migrated— Comparative valuation of both the properties had no comparison whatsoever, one being sixteen times higher in value than the other—Validity—Reasonableness of an exchange transaction could be gone into by the Court like it did in a case of gift—Reasonableness of a transaction of exchange thus was a very strong as well as relevant consideration. 2003 Lawvision 224 = PLD 2003 Supreme Court 688
22. Requirements—Mere entry of Roznamcha Waqiati alone was not the only requirement of S.42, West Pakistan Land Revenue Act, 1967 but numerous steps were also to be necessarily taken. 2003 Lawvision 224 = PLD 2003 Supreme Court 688
23. Sanction of mutation in pursuance of decree :– as such the same was merely a formality and was not independent act and according to law did not by itself independently had the effect of creating any right—Revenue Authorities were bound to make changes in Revenue Record according to the decree of Civil Court. 2004 S C M R 117
24. Sanction of Mutation:–Petitioner applied for sanction of mutation of plot transferred by Settlement Department in his name–ADC(G), despite receipt of report of re-verification of transfer order from Secretary (Settlement & Rehabilitation) did not sanction mutation–Constitutional petition Maintainability of–Denial of right of petitioner and refusal to sanction mutation by keeping matter pending for about three years had conferred right on petitioner to invoke help of constitutional Court through filing of writ petition–Provisions of Art. 199 of Constitution 1973 confer very wide powers on High Court for enforcement of fundamental and legal rights- Article 199 of Constitution provides remedy for infringement of fundamental and legal rights of persons–However, condition precedent to granting of any relief under said Article of constitution depends on existing of fundamental and legal right of person and of infringement of such right–Right which is foundation of Article 199 of the Constitution is personal and individual right–Legal right may be statutory right recognized by law–Person could be said to be aggrieved when person was denied legal right by some one who had legal duty to perform relating to that right–Held: Writ petition was maintainable. PLJ 2000 Lahore 497
25. Scope:- judgment debtor on making a consent before trial court stood divested of all his rights in suit property decree holder on depositing decrial amount becomes absolute owner of suit property and sanctioning of mutation was only a formality to be done such decree was not required to be put to execution ownership of decree-holder would remain intact even if such decree was not put to execution revenue officer was under statutory obligation to implement in revenue record such decree even if its execution petition had become time barred or was dismissed by executing court. 2010, M. L. D. 187
26. Status of Mutation entries:- Mutation entries do not create title and always carry a rebuttable presumption–Mutation entries were entered in name of Appellant No. 1 in utter violation of principles of natural justice and during this period it has been proved that respondents were in possession of property in dispute–On the contrary appellants failed to substantiate their ownership over property in dispute–Conversely ‘ respondents by referring to settlement record of 1904-5 have proved that government did not own any property in said Mauza–Respondents have further substantiated their contention that even Government acquired land for purpose of Quetta-Killa Saifullah Road from respondents for which they were duly compensated–Thus issue regarding reversal of revenue entries has been rightly decided in favour of respondents–Since issues going to roots of case have been decided in favour of appellant; thus there is no need to dilate upon other issues. PLJ 1999 Quetta 98
27. Transaction embodied in mutation :- Onus of proof of a transaction embodied in mutation is upon beneficiary of such mutation—Rebuttable presumption in favour of party in whose favour of party in whose favour mutation was effected coupled with the fact that burden of proof lies on the beneficiary, in whose favour entry exists and not on a party challenging correctness of such entries—Mere mutation does neither create any right or extinguish existing right unless transaction/facts on basis of which the same had been sanctioned of denied were independently proved to have existed. PLJ 2004 Lah. 193

NWFP Pre-emption Act, 1950
S. 16–Pre-emption–Suit for–Dismissal of suit and affirmation by appellate court–In revision, High Court decreed pre-emption suit–Challenge to–Trial Court and first appellate court determined question of fact in favour of appellant–High Court ignored statement of Patwari, Roznanzcha report, mutation entry and attestation of mutation while upsetting finding of fact–This is not fair reading of record and evidence–Ultimate transferee had to legally establish himself as having a superior or equal right of pre-emption–Held: Appellant, ultimate vendee, satisfied requirements and it was against him that pre-emptor had to compete to establish his subsisting superior right of pre-emption which he failed to do–Appeal accepted. PLJ 1991 SC 366 1985 SCMR 1425 & 1989 SCMR 119 discussed.
S. 5(c)–Purchase of land for residential purposes–Pre-emption suit against—Whether sale was exempt from pre-emption–Question of–Vendees are all residents of village in sense that it is their native village and they have not taken up permanent abode elsewhere–They arc out in connection with their service/employment–Their animus revertendi is not absent or lacking–Held: High Court has taken a correct view of situation–Appeal dismissed. PLJ 1991 SC 375
S. 77, Second Group items (i) and (g) Default in payment of rent by tenant/lessee::– Suit for recovery of rent and eviction from agricultural land:– Revenue Courts competent to entertain the suit:– All Courts below recording verdict of default against lessee:– Contention that landlord had short delivered possession of land and plea of reduction of rent on its basis:– Contention not upheld:– Superstructure raised by tenant without consent of landlord cannot be compensated:– Held: High Court rightly maintained orders of Courts below- PLJ 1980 S.C. 346
NWFP Tenancy Act, 1950 (Act XXV of 1950)- —-Ss. 4, 4A and 83–Person not recorded as occupancy tenant and until such time, such a declaration has been obtained from such authorities as have been empowered to grant it–Held : Cannot become owner under sections 4 and 4-A of NWFP Tenancy Act. PLJ 1997 SC 459
S.56 read with para 25(7) of M.L.R. 115–Revision before Additional Commissioner–Acceptance of–Second revision before Board of Revenue- Whether competent–Question of–It is consistent view of Supreme Court that Board of Revenue possesses power of revision to satisfy itself as to correctness, legality or propriety of judgments/orders passed by subordinate revenue Courts/revenue officers under Section 56 of NWFP Tenancy Act as well as para 25(7) of M.L.R. 115–Obviously, question of law being involved, High Court, in normal course might have accepted writ petition and remitted case back to Board of Revenue for decision on merits–In view of concurrent finding of trial Court and lower appellate Court, petitioner is tenant and defaulter and Commissioner was not convinced about any illegality, misreading or non-reading of evidence by Courts below–Held: Board of Revenue is only competent to exercise revisional powers with regard to judgment of Commissioner, but Supreme Court is not bound to grant leave against each and every order unless it is satisfied that manifest injustice has occasioned- Both petitions dismissed. PLJ 1992 SC 472 PLD 1983 Peshawar 1, Set aside by 1985 SCMR 770, PLD 1984 SC 227 and 1991 SCMR 689 discussed. PLD 1982 SC 413, PLD 1991 SC 691, PLD 1991 SC 811 and PLD 1989 SC 166 rel. Mr. Z. Maltfuz Khan, A.O.R. for Petitioner (in C.P. 135-P of 1991). Respondents: Not represented (in C.P.135-P of 1991).

The
North-West Frontier Province Pre-emption
Act, 1987

Contents
Preamble
1. Short title, extent and commencement
2. Definitions
3. Interpretation
4. Act to override other laws
5. Right of pre-emption
6. Persons to whom right of pre-emption vests
7. Priorities in right of pre-emption
8. Joint right of pre-emption how exercised
9. Method of distribution of property where more than one person are equally entitled
10. Withdrawal of claim
11 . Sale of appurtenance of land
12. Notice of Intention to Sell
13. Demand of pre-emption
14. Demand by guardian or agent
15. Waiver of right of pre-emption
16. Death of pre-emptor
17. Abatement of right of pre-emption
18. Exercise of right pre-emption by a Muslim and non-Muslim against each other
19. Right of pre-emption non-transferable and indivisible
20. Where pre-emptor and vendee equally entitled
21. Improvements made by vendee
22. Improvement made in status of vendee defendant after institution of suit
23. No right of pre-emption in respect of certain properties
24. Plaintiff to deposit sale price of property
25. Deposit or refund of excess price
26. The sum deposited by pre-emptor not to be attached
27. Fixing of price for purposes of suit in case of sale
28. Market value how to be determined
29. The Government may exclude areas from Pre-emption
30. Appearance of Ullema in addition or instead of advocates
31. Limitation
32. Notice
33. Matters ancillary or akin to Provisions of this Act
34. Application of Civil Procedure Code and the law on evidence
35. Repeal
36. Rules

The
North-West Frontier Province Pre-emption
Act, 1987
[X OF 1987]

28th April, 1987

An Act to bring in conformity with the
Injunctions of Islam the law relating to Pre-emption

No. PA/N.-W.F.P./Legis./87/6163, dated 28th April, 1987. The North-West Frontier Province Pre-emption Act, 1987, having been passed by the Provincial Assembly of the North-West Frontier Province on the 21st April, 1987, and assented to by the Governor of the North-West Frontier Province on the 26th April, 1987, is hereby published as an Act of the Provincial Legislature of North-West Frontier Province.

Whereas the Council of Islamic Ideology, in consultation with the Law Division, has recommended that it is necessary to modify the existing law relating to pre-emption, so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur’an and Sunnah.
It is hereby enacted as follows: –

Court Decisions

–Preamble—Pre-emption right being a feeble right, pre-emptor seeking to exercise such right was bound to perform and fulfill its requirements meticulously and, any failure in that behalf would deprive him of success in getting pre-emption decree. 1994 SCMR 849; 1995 SCMR 135; 1997 SCMR 1267, 1987 MLD 2945; 1991 MLD 986; PLD 1960 Karachi 741; PLD 1960 Lahore 757; 1991 SCMR 716 and 2000 MLD 814 ref. 2003 Lawvision 25 = PLJ 2003 Peshawar 120

1. Short title, extent and commencement. (1) This Act may be called the North-West Frontier Province Pre-emption Act, 1987.

(2) It extends to the whole of the North-West Frontier Province.

(3) It shall come into force at once.
https://lawandlawyers.com.pk/displaycodes.asp?subcontentID=166 – CONTENTS#CONTENTS
2. Definitions. In this Act, unless there is anything repugnant in the subject or context-

(a) ‘immovable property’ includes land, building, house, shop, water tank and well;

(b) ‘pre-emptor’ means a person who has the right of pre-emption;

(c) ‘right of pre-emption’ means a right to acquire by purchase an immovable property in preference to other persons by reasons of such rights; and

(d) ‘sale’ means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of hiba-bil-iwaz or hiba-bi-shart al-iwaz but does not include-

(i) transfer of an immovable property through inheritance or will or gift, other than hiba-bil-iwaz or hiba-bi-shart al-iwaz;
(ii) a sale in execution of a decree for money or of any order of a civil, criminal, revenue or any other Court or a Revenue Officer or any local authority;
(iii) the creation of any occupancy tenancy by a landlord whether for consideration or otherwise;
(iv) exchange of agricultural lands for better management; and
(v) transfer of an immovable property for a consideration other than valuable consideration, such as the transfer of an immovable property by way of dower or composition in a murder or hurt case.

Court Decisions
Exchange of land –Exchange of land for better management-Phrase better management used in Cl. (iv) of S. 2 of North-West Frontier Province Pre-emption Act, 1987 was of somewhat wide connotation and amplitude-Exemption from pre-emption right in present from was conditional and was an exception to the rule regarding exchange of property-To claim valid exemption from the pre-emption on the basis of exchange of agricultural land, vendee was required to prove by evidence that exchange was necessary because of requirements of better management-No hard and fast rule could be laid of better management-No hard and fast rule could be laid down to define and interpret “better management”. 2004 C L C 359
Pre-emption–Suit for–Dismissal of suit but appeal accepted–Challenge to–Whether a voluntary sale made by a judgment debtor in execution of a decree for money not in conformity with procedure in C.P.C., is exempt from pre-emption–Question of–A compulsory sale is in fact a court sale which is invariably made in accordance with procedure prescribed by C.P.C.–Essentials of such a sale include attachment of property, appointment of an auctioneer, issuance of a proclamation, public auction and grant of sale certificate to purchaser, but none of these elements is present in this case–Held: There is no escape from conclusion that it is voluntary sale pure and simple and not a Court sale in execution of money decree-Held further: Only a court sale made in accordance with procedure laid down in C.P.C. is exempt from pre-emption and not a voluntary sale made by judgment-debtor–Petition dismissed. PLJ 1994 Peshawar 12 [Dera Ismail Khan Bench]

https://lawandlawyers.com.pk/displaycodes.asp?subcontentID=166 – CONTENTS#CONTENTS3. Interpretation. In the interpretation and the application of the provisions of this Act, the Court shall seek guidance from the Holy Qur’an, Sunnah and Fiqh.
https://lawandlawyers.com.pk/displaycodes.asp?subcontentID=166 – CONTENTS#CONTENTS
4. Act to override other, laws. The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force.
https://lawandlawyers.com.pk/displaycodes.asp?subcontentID=166 – CONTENTS#CONTENTS
5. Right of pre-emption.

Court Decisions
Pre-emption suit-Sale transaction was alleged by vendee-defendant to be gift—Suit was decreed by Trial Court and upheld by Appellate Court—Validity—Defendant had not produced alleged donor (vendor) to prove that transaction was gift and not sale—Alleged donor was alive and very much present, but such strong piece of evidence had been withheld by defendant for reasons best known to him—Article 129(g) of Qanun-e-Shahadat, 1984 provided that legal presumption would be that in case alleged donor had been produced, his deposition must have been against defendant—No relationship between alleged donor and defendant existed, on the basis of which suit property could be gifted to defendant—No-misreading or non-reading of evidence or any material irregularity or illegality or jurisdictional defect/error was found in impugned judgment/decree warranting interference—High Court dismissed revision petition. Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235 rel. 2003 Lawvision 38 = P L D 2003 Peshawar 189

The right of pre-emption shall arise in case of sale.

(2) Nothing contained in sub-section (1) shall prevent a Court from holding that an alienation purporting to be other than sale is in fact a sale.

(1) 6. Persons in whom the right of pre-emption vests. The right of pre-emption shall vest-

Court Decisions
Suit for pre-emption— Determination of sale price—Two different criteria for determination of sale price i.e. one year average or the registered sale-deed—Presumption of truth would be attached to the payment made through registered sale-deed because it was a public document—Where the value of a right, interest or title was stated in the document. Court would not go behind that value and would see whether the consideration for a deed was stated in terms of money—Question of liability to the registered deed must be determined with reference to the amount so entered and not the real value of the property, 2001 Lawvision 10 = 2001 CLC 576

(a) firstly in Shafi-Sharik;
(b) secondly in Shafi-Khalit; and
(c) thirdly in Shafi-Jar.

Explanation I. ‘Shafi-Sharik’ means a person who is a co-owner in the corpus of the undivided immovable property sold with other person or persons.
Explanation II. ‘Shafi-Khalit’ means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation.
Explanation III. ‘Shafi-Jar’ means a person who has a right of pre-emption because of owing an immovable property adjacent to the immovable property sold.

Court Decisions
Exemption from pre-emption right-Exchange of land for better management-Phrase better management used in Cl. (iv) of S. 2 of North-West Frontier Province Pre-emption Act, 1987 was of somewhat wide connotation and amplitude-Exemption from pre-emption right in present from was conditional and was an exception to the rule regarding exchange of property-To claim valid exemption from the pre-emption on the basis of exchange of agricultural land, vendee was required to prove by evidence that exchange was necessary because of requirements of better management-No hard and fast rule could be laid of better management-No hard and fast rule could be laid down to define and interpret “better management”. 2004 C L C 359
Plaintiff filed appeal against judgment and decree of Trail court through his attorney which was accepted-competency of appeal was challenged by defendant contending that attorney of plaintiff was not conferred with express powers to file appeal or revision vide deed of attorney-Contention of defendant was repelled for the reasons that all the acts performed right up to the High court by Attorney had been either expressly or impliedly confirmed and ratified by plaintiff/principal— Although deed of power of attorney was to be strictly construed and unless authority/power was conferred expressly, it could not be construed to be implied or inherent in the agent, but provisions of Ss. 196, 197 & 199 of Contract Act, 1872 were an exception to the general rule wherein principal had been given an option to ratify an act not expressly conferred on the agent-Such ratification could be either express or implied and once such acts of agent were ratified by principal, same would stand validated for all legal purposes and would bind principal himself-All acts performed and steps taken by attorney having been confirmed/ratified by plaintiff through his conduct both express and implied, same would be held to have been validly performed by attorney-Appeal filed through attorney was competent, in circumstances. 2004 C L C 359
Suit filed by pre-emptor was resisted by defendant on ground that time, place and names of witnesses of Talbs were neither given by plaintiff in plaint nor in notice of Talb-e-Ishhad which omission was fatal-Validity-Omission of time, place and names of witnesses from the plaint was not fatal to the case of names of witnesses from the plaint was not fatal to the case of plaintiff-Non-signing of notice of Talb-e-Ishhad by attesting witnesses was also not of much consequence because both witnesses appeared in the court and had confirmed that they had attested the original notice-Even in the written statement receiving of notice of Talb-e-Ishhad had not been denied by defendant-Omission to sign notice by attesting witnesses was a technical one. 2004 C L C 359

https://lawandlawyers.com.pk/displaycodes.asp?subcontentID=166 – CONTENTS#CONTENTS7. Priorities in the right, of pre-emption. (1) Where all the classes of pre-emptors referred to in section 6 are the claimants, the first class shall exclude the second and the second shall exclude the third:
(2) Where there are more than one participators in the special rights attached to the immovable property sold, the person having special right shall have precedence over a person having a general right.
Illustrations
A garden is irrigated by a watercourse which opens from a small canal. If this garden is sold, the person having right of irrigation from watercourse shall have precedence over a person having right of irrigation from the card. But if such garden is irrigated from the small canal. The person having right of irrigation from watercourse as well as the person having right of irrigation from the canal shall both have right of pre-emption.

3) Where there are more than on pre-emptors and one has right of passage and the other has right of passage of water attached to the immovable property sold, the person having right of passage shall have precedents over the person having right of passage of water.

(4) A participator in the special rights having his property on the basis of which he claims to be the pre-emptor nearer to the immovable property sold shall have precedence over the pre-emptor having such property not so nearer to the immovable property sold.
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8. Joint right of pre-emption, how exercised. Where a right of pre-emption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly, and if not exercised by them all jointly, by any two or more of them jointly, and if not exercised by any two or more of them jointly, by them severally.
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9. Method of distribution of the property. where more than one person equally entitled. Where more than one person are found by the Court to be equally entitled to the right of pre-emption the property shall be distributed amongst them in equal shares.
Illustration

A has one-half share in a house, B has one-third and C has one-sixth share in such house. If A sells his one-half share the other two partners, namely B and C shall have equal right of pre-emption in one-half of the house and this one-half shall be distributed between B and C in equal shares and not according to their respective shares in the house.
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10. Withdrawal of claim. Where there are more than one pre-emptors having sued jointly or severally and any of them withdraws his claim before the decision of the Court, the remaining pre-emptors shall be entitled to the whole property: –
Provided that the claim of the remaining pre-emptors was originally made for the whole property.

https://lawandlawyers.com.pk/displaycodes.asp?subcontentID=166 – CONTENTS#CONTENTS11. Sale of appurtenances of land. Where only trees or a structure of a building is sold without land, no right of pre-emption shall exist in such trees or the structure of a building, but where land is sold with trees and buildings on it, the trees and building shall ‘be deemed to be included in the land for the purposes of the right of pre-emption.
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12. Notice of intention to sell. (1) Where any person proposes to sell any immovable property in respect of which a right of pre-emption exists, he may give notice to all such persons having such right of the price at which he is willing to sell the property.

(2) The notice under sub-section (1) shall be given through any Court within the local limits of whose jurisdiction such immovable property is situated and shall be deemed sufficiently given if it be stuck upon the main entrance of mosque and on any other public place of the village, city or place where the property is situated].

Court Decisions
read with Punjab Pre-emption Act, 1991, Section 12–Right to revoke sale–Provision of–Whether repugnant to Injunctions of Islam–Question of–Vendees right to revoke sale has been challenged as repugnant to Injunctions of Islam, but no Hadith has been quoted in support thereof–Author of Badai Al Sanai writes that there is no right of pre-emption in property sold with stipulation of option of revocation of sale by vendor–Held: Section 12 of both Acts is repugnant to Injunctions of Islam (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
read with Punjab Pre-emption Act, 1991, Section 12–Right to revoke sale–Provision of–Whether repugnant to Injunctions of Islam–Question of–Vendees right to revoke sale has been challenged as repugnant to Injunctions of Islam, but no Hadith has been quoted in support thereof–Author of Badai Al Sanai writes that there is no right of pre-emption in property sold with stipulation of option of revocation of sale by vendor–Held: Section 12 of both Acts is repugnant to Injunctions of Islam (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
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13. Demand of pre-emption.

(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:-

(a) Talb-i-Muwathibat;
(b) Talb-i-Ishhad; and
(c) Talb-i-Khusumat.

Explanations. I. ‘Talb-i-Muwathibat’ means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he had come to know of the sale declaring his intention to exercise the right of pre-emption.
Note. Any words indicative of intention not exercise the right of pre-emption are sufficient.
Explanations. II. ‘Talb-i-Ishhad’ means demand by establishing evidence.
Explanations. III. ‘Talb-i-Khusumat’ means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat.

(3) [Subject to his ability to do so, where] a pre-emptor has made Talb-i-Muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section [32], or knowledge, whichever may be earlier, make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption:
Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses.

(4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2) and Talb-i-Ishhad under sub-section (3), he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption.

Court Decisions
Talb-i-Muwathibat–Proof—Minor contradictions with regard to such Talb, specially when statement of witnesses were recorded after long time, would be ignored. Abdul Qayyum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798 ref. 2003 Lawvision 38 = P L D 2003 Peshawar 189
Leave to appeal was granted by Supreme Court to consider; whether the High Court was not justified to have set aside the judgment of Lower Appellate Court in its revisional jurisdiction inasmuch as the pre-emptor had failed to make Talb-e-Muwathibat in accordance with S.13(l) of North-West Frontier Province Pre-emption Act, 1987 and had also omitted to mention the making of such Talb in the notice sent by him to appellant. 2002 Lawvision 218 = 2002 SCMR 219
Pre-emption suit—Requirement of mentioning Talb-i-Muwathibat in notice of Talb-i-Ishhad—Pre-emptor successfully established performance of both the Talbs by leading oral evidences—Trial Court decreed the suit and the findings of Trial Court were affirmed by High Court in exercise of revisional jurisdiction—Contention of the Vendee was that the pre-emptor failed to make any reference of Talb-i-Muwathibat in the notice issued in fulfillment of Talb-i-Ishhad—Validity—Personally apprising to vendee by pre-emptor about his right of pre-emption in suit-land tantamounted to mentioning of Talb-i-Muwathibat and thus the fact that the pre-emptor was also approached through Jirga clearly spelt out his intention of asserting his right of pre-emption, thus, using such phrases in the notice issued to vendee under Ss.l3(2) & 13(3) of North-West Frontier Province Pre-emption Act, 1987, was sufficient to hold that earlier performance of Talb-i-Muwathibat was duly mentioned—Where the pre-emptor had performed both Talb-i-Muwathibat and Talb-i-Ishhad according to S.13(1) of North-West Frontier Province Pre-emption Act, 1987, Supreme Court refused to interfere with the judgment passed by High Court, Muhammad Ramzan v. Lal Khan 1995 SCMR 1510; Mst. Shamim Akhtar v. Kh. Maqsood Ahmed and 3 others 1998 SCMR 2227; Sar Anjam v. Abdul Raziq 1999 SCMR 2167; 1992 SCMR 1886; PLD 1997 SC 366 and PLD 1997 SC 883 ref. Lawvision 218 = 2002 SCMR 219
Pre-emption suit—Original notice of Talb-i-Ishhad—Producing of such notice by vendee—Effect—Where such notice was tendered by vendee himself, its genuineness and contents mentioned therein were admitted to be true and correct for all intents and purposes—Vendee could not raise objection to such document as the same was primary document. Lawvision 218 = 2002 SCMR 219
Pre-emption–Suit for–Decree passed in–Challenge to–Whether Talabs had been correctly made–Question of–After sale mutation, respondent went to Patwari on 13.9.1987 and obtained copy of record of rights whereby he came to know about transaction–He immediately made announcement of his intention to lodge a pre-emption suit–Within a period of two weeks, he sent a notice to petitioner through registered A.D. post–Record shows that notice carrying Talb-i-Ishhad duly attested by truthful witnesses, had been sent to vendee on 21.9.1987–It is argued that respondent in fact had knowledge of transaction on 17.3.1987 and in support thereof, an attested copy of an application allegedly moved by respondent for obtaining copy of suit mutation, was placed on file of trial court–This document was not produced in evidence and exhibited in trial court and not even mentioned in pleadings by petitioner–This document cannot be considered at this stage–Held: Talabs were correctly made in time by respondent, findings of two forums below are based on evidence, and they cannot be said to have exercised jurisdiction illegally or with material irregularity–Petition dismissed. PLJ 1992 Peshawar 67
Suit for Pre-emption–Decreed to–Appeal against—Acceptance of–Appeal against–In order to succeed in a suit for pre-emption must establish ‘that three demands were made, namely, Talab-e-Muwathibat, Talb-e-Ishhad and Talab-e-Khushrnat in accordance with law–In notice dated 14.5.1990 no ‘ mention was made about “Talab-e-Muwathibat” exercised by appellant, nor in evidence of her attorney before Court
Right of pre-emption, exercise of—Talb-i-Ishhad—Object and scope—After having performed Talb-i-Muwathibat, the pre-emptor is required to confirm his intention to pre-empt the property during process of making Talb-i-Ishhad by sending a written notice to the vendee in obedience of S.13(2) of North-West Frontier Province Preemption Act, 1987. 1995 SCMR 1510; 1998 SCMR 2227 and 1999 SCMR 2167 ref Lawvision 218 = 2002 SCMR 219.
Notice of Talb-i-Ishhad—Format—No format has been prescribed to issue the notice as per requirement of S.13(2) & (3) of North-West Frontier Province Pre-emption Act, 1987, therefore, from language employed therein inference has to be drawn to gather the intention of the pre-emptor Lawvision 218 = 2002 SCMR 219.
Notice of Talb-i-Ishhad—Format—No format has been prescribed to issue the notice as per requirement of S.13(2) & (3) of North-West Frontier Province Pre-emption Act, 1987, therefore, from language employed therein inference has to be drawn to gather the intention of the pre-emptor Lawvision 218 = 2002 SCMR 219.
Pre-emption–Suit for–Whether, while making Talb-i-Ishhad, a reference to Talb-i-Muwathibat is essential necessity–Question of–On plain reading of Section 13 of Act, there is hardly anything in law indicative of necessity of a reference to be made to Talb-i-Muwathibat while making Talb-i-Ishhad–Held: A perspective pre-emptor may refer to making of Talb-i-Muwathibat in notice of Talb-i-Ishhad, if he so desires, but neither he is bound nor Section 13(3) of Act requires him to do so–Revision dismissed. PLJ 1991 Peshawar 48
read with Punjab Pre-emption Act, 1991, Section 13(3)–Talb-i-Ishhad–Provision of–Whether suit can be dismissed if pre-emptor fails to mention making of Talb-i-Muwathibat while making Talb-i-Ishhad–Question of–If pre-emptor can successfully and satisfactorily discharge burden of proving before Qazi that he had-made Talb-i-Muwathibat, his suit must be decreed–Held: If pre-emptor can prove that he had made Talb-i-Muwathibat, his suit cannot be dismissed on pretext that he had not mentioned Talb-i-Muwathibat while making Talb-i-Ishhad (Per Ibadat Yar Khan, J). PLJ 1992 FSC 53
NWFP Pre-emption Act, 1987 (X of 1987)- —-S.16 read with Punjab Pre-emption Act, 1991, Section 16–Pre-emption right–Survival of right after death of pre-emptor in certain cases–Provision of–Whether repugnant to Injunctions of Islam–Question of–Hanafi School of fiqh considers right of pre-emption to be a personal right which becomes extinct on death of pre-emptor, but according to other schools, this right relates to property–Legislature seems to have approved opinion of other schools of fiqh–Held: Provision of Section 16 of both Acts does not come into conflict with Injunctions of Islam (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
Making of Talbs-Plaintiff by producing evidence on record had fully proved that he had made Talb-i-muwathbat and Talb-i-Ishhad in time on receiving information with regard to transaction of suit-land-contention that Talb-e-Muwathibat as well as Talb-e-Ishhad were made much before the sale of suit property, was repelled. 2004 M L D 341
Suit filed by pre-emptor was resisted by defendant on ground that time, place and names of witnesses of Talbs were neither given by plaintiff in plaint nor in notice of Talb-e-Ishhad which omission was fatal-Validity-Omission of time, place and names of witnesses from the plaint was not fatal to the case of names of witnesses from the plaint was not fatal to the case of plaintiff-Non-signing of notice of Talb-e-Ishhad by attesting witnesses was also not of much consequence because both witnesses appeared in the court and had confirmed that they had attested the original notice-Even in the written statement receiving of notice of Talb-e-Ishhad had not been denied by defendant-Omission to sign notice by attesting witnesses was a technical one. 2004 C L C 359https://lawandlawyers.com.pk/displaycodes.asp?subcontentID=166 – CONTENTS#CONTENTS
¬Original notice of Talb i Ishhad Producing of such notice by vendee ¬Effect Where such notice was tendered by vendee himself, its genuineness and contents mentioned therein were admitted to be true and correct for all intents and purposes Vendee could not raise objection to such document as the same was primary document. 2002 S C M R 219
Sending of photo copy of the original notice Vendee under the provision of S.13(3), North West Frontier Province Pre emption Act, 1987 has, to be served with original notice of “Talb i Ishhad” Photo copy could. not be treated as original ¬Where the pre emptor retained the original notice with himself and sent photo copy of the same to the vendee, Lower Appellate Court dismissed the suit of the pre emptor Suit was rightly dismissed for want of non compliance of S.13(3), North West Frontier Province Pre¬emption Act, 1987. 2000 C L C 336
E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; PLD 1978 SC (AJ&K) 37 and E.A. Evans v. Muhammad Ashraf NLR 1979 (Civil) 178 ref.

14. Demands by the guardian or agent. Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf.
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15. Waiver of the right of pre-emption. The right of pre-emption shall be deemed to have been waived if the pre-emptor has acquiesced in the sale or has done any other act of omission or commission which amounts to waiver of the right of pre-emption.
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16. Death of pre-emptor. Where a pre-emptor has died after making any of demands under section 13, his right of pre-emption shall stand transferred to his legal heirs.

Court Decisions

16 read with Punjab Pre-emption Act, 1991, Section 16–Pre-emption right–Survival of right after death of pre-emptor in certain cases–Provision of–Whether repugnant to Injunctions of Islam–Question of–Hanafi School of fiqh considers right of pre-emption to be a personal right which becomes extinct on death of pre-emptor, but according to other schools, this right relates to property–Legislature seems to have approved opinion of other schools of fiqh–Held: Provision of Section 16 of both Acts does not come into conflict with Injunctions of Islam (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53

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17. Abatement of right of pre-emption. (1) Where a pre-emptor before the decree of a Court has alienated his property on the basis of which he is entitled to the right of pre-emption, his right of pre-emption shall abate.

(2) An alienee of the property under sub-section (1) shall also not be entitled to the right of pre-emption.
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18. Exercise of the right of pre-emption by a Muslim and a non-Muslim against each other. A Muslim and a non-Muslim may exercise the right of pre-emption against each other.
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19. Right of pre-emption non-transferable and indivisible. (1) Save as provided in section 16, the right of pre-emption shall be non-transferable and indivisible.

(2) The claim for pre-emption shall be made on the whole property pre-emptible.
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20. Where the pre-emptor and vendee equally entitled. Where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by them equally.

Court Decisions
Pre-emptor and vendee falling within same class of pre-emptors and having equal right of pre-emption-Court in such cases would grant decree in equal shares—In pre-emption suits, vendees even if having a right superior to that of pre-emptor takes plea simply to the effect that pre-emptor does not have superior right of pre-emption, Court must determine as to where do parties stand and what decision was ultimately to be taken in the light of what has come before it in the shape of evidence. 2003 Lawvision 215 = PLJ 2003 SC 778
Specific plea not taken in written statement by vendee that he had equal right of pre-emption with pre-emptor—Effect—Vendee is not bound to take specific plea under S. 20 of N.W.F.P. Pre-emption Act, 1987, in as much as, even if a vendee was proceeded ex-parte and even if there was no written statement on record. Court still was bound to grant decree in equal shares if intimately it was found in evidence that both parties belonged to same class of pre-emptors—Being possessed of a superior right, equal right or no right is although a question of fact be duly proved by evidence, yet consequence thereof being a question of law, Court can grant or refuse a decree in the light of S. 20 of Act of 1987. PLJ 1998 SC 710 ref. 2003 Lawvision 215 = PLJ 2003 SC 778
read with Punjab Pre-emption Act, 1991, Section 20–Equal rights of pre-emptor and vendee–Sharing of property equally by them–Provision of–Whether repugnant to Injunctions of Islam–Question of–There is no explicit verse of Holy Quran and Sunnah of Holy Prophet which may be put forward in support of proposition that law as framed under Section 20 is repugnant to Injunctions of Islam–However, provision is in conformity with Hanafi school of fqh–Held: Provision of Section 20 of both Acts is not repugnant to Injunctions of Islam. (Per Tanzilur Rahman CJ) PLJ 1992 FSC 53

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21. Improvements made by the vendee. Where a vendee has made any improvements in the immovable property before Talb-i-Ishhad is made by the pre-emptor under sub-section (3) of section 13, the vendee shall be entitled to the cost of such improvements.
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22. Improvement made in the status of the vendee-defendant after institution of the suit. Any improvement made in the status of a vendee-defendant after the institution of suit for preemption [otherwise than through inheritance] shall not affect the right of pre-emptor-plaintiff.

Court Decisions
read with Punjab Pre-emption Act, 1913, Section 21-A–Improvement in status of vendee after institution of suit not to effect right of pre-emption–Provision of–Whether repugnant to Injunctions of Islam–Question of–It appears that legislature consciously omitted excepting phrase “otherwise than through inheritance or succession” as contained in Section 21-A of Punjab Pre-emption Act, 1913–Subsequent improvement by conscious act of vendee may be objectionable but an improvement on account of natural phenomena, e.g. inheritance, requires exception–Held: Respondent is directed to add phrase “otherwise than through inheritance” in Section 22 of Act (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
Improvements made in property–Compensation to vendee.-Whether vendee is entitled to compensation for improvements made by him–Question of–Held: A proviso should also be added to Section 22 that if after acquiring property, some improvements are made by vendee in property out of necessity and he is losing property in favour of pre-emptor on account of decree, he should be entitled to a fair and equitable compensation for improvements made by him. (Per Ibadat Yar Khan J). PLJ 1992 FSC 53

23. No right of pre-emption in respect of certain properties. (1) No right of pre-emption shall exist in respect of sale or purchase of.

(a) a waqf property or a property used for charitable, religious or public purpose; or
(b) a property by the Federal or a Provincial Government or a local authority.

(2) A property acquired by the Federal or a Provincial Government or a local authority in pursuance of any law shall not be pre-emptible.

Court Decisions
Exemption from pre-emption of factory or an industrial undertaking–Provision of–Whether repugnant to Injunctions of Islam–Question of–If a property used for factory or industrial undertaking is owned by a person or group of persons or a company, it cannot be exempted from right of pre-emption–Held: Clause (c) of sub-section (1) of Section 23 of Act is repugnant to Injunctions of Islam (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53

24. Plaintiff to deposit sale price of the property. (1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix:
Provided that if no sale price is mentioned in the sale-deed or in the mutation, the Court, shall require the deposit of one-third of the probable value of the property.

(2) Where the plaintiff fails to deposit one-third of the same price of the probable value of the property within the period fixed by the Court, his suit shall be dismissed.

(3) Where the plaintiff withdraws the sum deposited under sub-section (1), his suit shall be dismissed.]

(4) Every sum deposited under sub-section (1) shall be available for the discharge of costs.

(5) The probable value fixed under sub-section (1) shall be available for the discharge of costs.

Court Decisions
24 read with Punjab Pre-emption Act, 1991, Section 24–Deposit of one-third of sale price–Provision of–Whether repugnant to Injunctions of Islam–Question of–This provision of law as enacted by Provincial Assembly, seems to be based on Ijtihad taking into account realities of time and place–Held: There is no repugnancy of said provision to Injunctions of Islam. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
Pre-emption–Suit for–Whether High Court has jurisdiction to declare that Section 24 of Act is un-Islamic–Question of–Provisions of Section 24 of Act cannot be said to be un-Islamic because object of enactment of NWFP pre-emption Act, 1987 was to bring pre-emption law in conformity with injunctions of Islam–Held: If any provision of Act is considered as un-Islamic, for that purpose High Court has no power to declare so. PLJ 1992 Peshawar 3 PLJ 1991 SC 95 rel.
Pre-emption–Suit for–Deposit of one-third of sale price and bank guarantee for two-third of same–Order of–Challenge to–Under Section 24 of Act, court is under obligation to direct plaintiff to deposit one-third of sale price and for remaining two-third to furnish bank guarantee to satisfaction of court–Question of actual payment of price or its fixation in good faith is to be resolved at time of trial as envisaged in Sections 27 and 28 of Act–Held: Court while making direction for deposit of one-third of sale price in cash and to furnish bank guarantee for remaining two-third, has acted in accordance with law. PLJ 1992 Peshawar 3
as amended by N.W.F.P. Pre-emption Ordinance X of 1992]—Trial Court cannot legally extend time limit for deposit of pre-emption amount in view of S.24(b) of N.W.F.P. Pre-emption Act, 1987 as amended in 1992—Amended provision of S.24(b) of Pre-emption Act 1987, makes it obligatory for the Courts to dismiss suit on failure of pre-emptor to deposit l/3rd of sale price within period fixed by Court. 2003 Lawvision 25 = PLJ 2003 Peshawar 120

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25. Deposit or refund of excess price. (1) Where a Court passes a decree in favour of a pre-emptor on payment of a price which is in excess of the amount already deposited by the pre-emptor, the Court shall require the pre-emptor to deposit the remaining amount within thirty days of the passing of the decree.

(2) Where a decree is passed for a lesser amount than the amount already deposited by the pre-emptor, the Court shall refund the excess amount to such pre-emptor.

Court Decisions
read with Punjab Pre-emption Act, 1991, Sections 25 & 27–Provisions about deposit or refund of excess price and fixing of price for purposes of suit–Whether repugnant to Injunctions of Islam–Question of–All these provisions are based on Ijtihad–No verse of Holy Quran or Sunnah of Holy Prophet has been cited–Held: Members of Assembly, as representatives of people, are fully competent to legislate on subject based entirely on Ijtihad and there is no repugnancy. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
NWFP Pre-emption Act, 1987 (X of 1987)n—-S.13 read with Section 32–Pre-emption–Suit for–Whether procedure

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26. The sum deposited by pre-emptor not to be attached. No sum deposited in or paid into Court by a pre-emptor under the provisions of this Act shall, while it is in custody of the Court, be liable to attachment by any Civil, Criminal, Revenue or any other Court or a Revenue Officer or a local authority.
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27. Fixing of price for purposes of suit in case of sale.

(1) Where in the case of a sale the parties are not agreed to the price at which the pre-emptor shall exercise his right of pre-emption the Court shall determine whether the price at which the sale purports to have taken place has been fixed in good faith or paid, and if it finds that the price was not so fixed or paid, it shall fix the market value of the property as the price to be paid by the pre-emptor.

(2) If the Court finds that the price was fixed in good faith or paid, it shall fix such price to be paid by the pre-emptor.

Court Decisions
Suit for pre-emption— Determination of sale price—Two different criteria for determination of sale price i.e. one year average or the registered sale-deed—Presumption of truth would be attached to the payment made through registered sale-deed because it was a public document—Where the value of a right, interest or title was stated in the document. Court would not go behind that value and would see whether the consideration for a deed was stated in terms of money—Question of liability to the registered deed must be determined with reference to the amount so entered and not the real value of the property, 2001 Lawvision 10 = 2001 CLC 576
Pre-emption–Suit for–Deposit of one-third of sale price and bank guarantee for two-third of same–Order of–Challenge to–Under Section 24 of Act, court is under obligation to direct plaintiff to deposit one-third of sale price and for remaining two-third to furnish bank guarantee to satisfaction of court–Question of actual payment of price or its fixation in good faith is to be resolved at time of trial as envisaged in Sections 27 and 28 of Act–Held: Court while making direction for deposit of one-third of sale price in cash and to furnish bank guarantee for remaining two-third, has acted in accordance with law. PLJ 1992 Peshawar 3
read with Punjab Pre-emption Act, 1991, Sections 25 & 27–Provisions about deposit or refund of excess price and fixing of price for purposes of suit–Whether repugnant to Injunctions of Islam–Question of–All these provisions are based on Ijtihad–No verse of Holy Quran or Sunnah of Holy Prophet has been cited–Held: Members of Assembly, as representatives of people, are fully competent to legislate on subject based entirely on Ijtihad and there is no repugnancy. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
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28. Market value how to be determined. For the purpose of determining the market value of a property, the Court may consider the following, among other matters, as evidence of such value-
(a) the price of value actually received or to be received by the vendor from the vendee;
(b) the estimated amount of the average annual net profits of the property;
(c) the value of similar property in the neighborhood; and the value of similar property as shown by previous sales made in the near past.
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Court Decisions
Suit for pre-emption— Determination of sale price—Two different criteria for determination of sale price i.e. one year average or the registered sale-deed—Presumption of truth would be attached to the payment made through registered sale-deed because it was a public document—Where the value of a right, interest or title was stated in the document. Court would not go behind that value and would see whether the consideration for a deed was stated in terms of money—Question of liability to the registered deed must be determined with reference to the amount so entered and not the real value of the property, 2001 Lawvision 10 = 2001 CLC 576
Pre-emption–Suit for–Deposit of one-third of sale price and bank guarantee for two-third of same–Order of–Challenge to–Under Section 24 of Act, court is under obligation to direct plaintiff to deposit one-third of sale price and for remaining two-third to furnish bank guarantee to satisfaction of court–Question of actual payment of price or its fixation in good faith is to be resolved at time of trial as envisaged in Sections 27 and 28 of Act–Held: Court while making direction for deposit of one-third of sale price in cash and to furnish bank guarantee for remaining two-third, has acted in accordance with law. PLJ 1992 Peshawar 3

29. [Replead]

Court Decisions
read with Punjab Pre-emption Act, 1991, Section 29–Provision empowering Government to exclude certain areas from pre-emption–Whether repugnant to Injunctions of Islam–Question of–According to Hadith of Holy Prophet, no property can be exempted from right of pre-emption–However, Government in dire necessity, may exempt specific property from right of pre-emption if it is acquired in public interest–Interpretation of public interest must necessarily be based on principles of Shariah–It would not be enough merely to mention words “public interest” to justify exemption–Held: Section 29 of both Acts, as it stands, appears to be repugnant to Injunctions of Islam. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
29 read with Punjab Pre-emption Act, 1991, Section 29–Provision empowering Government to exclude certain areas from pre-emption–Whether repugnant to Injunctions of Islam–Question of–According to Hadith of Holy Prophet, no property can be exempted from right of pre-emption–However, Government in dire necessity, may exempt specific property from right of pre-emption if it is acquired in public interest–Interpretation of public interest must necessarily be based on principles of Shariah–It would not be enough merely to mention words “public interest” to justify exemption–Held: Section 29 of both Acts, as it stands, appears to be repugnant to Injunctions of Islam. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
Pre-emption–Suit for–Declaration of Section 29 as repugnant to Injunctions of Islam–Prayer for–Whether High Court had jurisdiction to give such declaration–Question of–Held: View expressed by High Court that it has no jurisdiction to declare exemption under newly enacted Pre-emption Act as being against Injunctions of Islam as contained in Quran and Sunnah, is correct–Petition dismissed. PLJ 1991 SC 95

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30. Appearance of Ulema in addition to or instead of Advocates. Any party to a proceeding under this Act may, in addition to, or instead of, an advocate engage an Alim who is qualified as such from a Deeni Madrasah approved by the Provincial Government for this purpose.
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31. Limitation. The period of limitation for a suit to enforce a right of pre-emption under this Act shall be [one hundred, and twenty days] from the date-

(a) of the registration of the sale-deed; or
(b) of the attestation of the mutation, if the sale is made otherwise than through the registered sale-deed; or
(c) on which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale-deed or the mutation; or
(d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c).

Court Decisions
Limitation :– Pre-emption suit arising from sale effected through mutation-Such suit has to be filed within 120 days from date of attestation of mutation-Issuance of public notice under S. 32 of North-West Frontier province pre-emption Act, 1987 has not nexus with period of limitation prescribed by S. 31 thereof-provision of S. 32 of the act is meant to provide an extra source of Knowledge for making Talb-i-Muwathibat and alternate time frame for making Talb-i-Ishhad in accordance with S. 13(3) thereof. 2004 C L C 284
Pre-emption suit—Sale effected through mutation—Limitation starting point—Period of limitation would start from the date of attestation of mutation and not from date, when vendee entered into possession of property. Nazu Khan v. Karam Hussain Khan through Legal Heirs 2000 SCMR 1053; Tajul Mulk v. Mst. Zaitoon Bibi and 3 others PLD 1994 SC 356; Mst. Majidan Khanum v. District Judge, Vehari 1984 CLC 3270 and Abdul Akbar v. Fazal Mahmood and 2 others 1990 MLD 1019 fol. 2003 Lawvision 38 = P L D 2003 Peshawar 189
read with Punjab Pre-emption Act, 1991, Section 30–Limitation for bringing pre-emption suit–Provision of–Whether repugnant to Injunctions of Islam–Question of–Period of one year as limitation for filing suit for pre-emption, is unreasonable–Held: Section 31 is repugnant to Injunctions of Islam–Held further Respondent is directed to amend Section 31 by fixing period of 120 days. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53
read with Sections 13 & 32, as amended by Amendment Act X of 1992–Pre-emption suit–Limitation for–Whether period of 12O days will start from date of knowledge–Question of–Section 31 as amended, prescribes a period of limitation for a pre-emption suit from date of registration of sale deed or attestation of mutation or taking of physical possession one after other, and only in absence of sale transaction having been affected in above modes, period of limitation shall be counted from date of gaining knowledge–Held: Act No. X of 1992 has been given effect to from 31.12.1992 and shall be applicable even from date of its commencement irrespective of fact whether sale was affected before 31.12.1991–Held further: Suits filed beyond prescribed period of limitation of 120 days shall he deemed time barred entailing rejection of plaints under Order VII Rule 11(d) C.P.C. PLJ 1994 Peshawar 81

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32. Notice.

(1) The Registrar registering the sale-deed or the Revenue Officer attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation.

(2) The notice under sub-section (1) shall be deemed sufficiently given if it be stuck up on the main entrance of a mosque and on any other public place of the village, city or place where the property is situated:
Provided that if the property is situated in a city, the notice shall also be given through a newspaper having large circulation in such city.

(3) The charges for the notice under sub-section (2) shall be recovered from the vendee by the Registrar or the Revenue Officer, as the case may be, at the time of registration or attestation of mutation.

Court Decisions
Pre-emption suit—Talb-i-Muwathibat—Making of such Talb after getting attested copy of the sale-deed—Contention of the vendee was that the suit be dismissed as Talb-i-Muwathibat was not immediately after gaining knowledge of the sale—Validity—Record did not indicate as to whether in terms of S.32 of North-West Frontier Province Pre-emption Act, 1987, the Sub-Registrar in exercise of his duty had issued a notice to general public disclosing the factum of transaction of sale of suit-land—In absence of such information it would be too technical to non-suit the pre-emptor that he had gained information about the sale of the suit-land prior to obtaining copy of sale-deed and after apprising him about the sale transaction he did not perform Talb-i-Muwathibat—Supreme Court declined to extend any benefit to the vendee on such ground. Lawvision 218 = 2002 SCMR 219
Notice of sale–Provision of–Whether pre-sale notice is necessary under Injunctions of Islam–Question of–Section 32 provides that notice be issued by Registrar after sale is complete and is registered in his record–Held: While notice under Section 32 may be retained, a pre-sale notice by vendor should be made mandatory for every sale and must be added in statutes. (Per Ibadat Yar Khan J). PLJ 1992 FSC 53
Ss. 31 & 32-Pre-emption suit arising from sale effected through mutation-Limitation-Such suit has to be filed within 120 days from date of attestation of mutation-Issuance of public notice under S. 32 of North-West Frontier province pre-emption Act, 1987 has not nexus with period of limitation prescribed by S. 31 thereof-provision of S. 32 of the act is meant to provide an extra source of Knowledge for making Talb-i-Muwathibat and alternate time frame for making Talb-i-Ishhad in accordance with S. 13(3) thereof. 2004 C L C 284
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33. Matters ancillary or akin to the provisions of this Act. Matters ancillary or akin to the provisions of this Act which have not been specifically covered under any provision thereof shall be decided according to Shari’ah.
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34. Application of the Civil Procedure Code and the law on evidence. The provisions of the Code of Civil Procedure, 1908 (Act V of 1908), and the law on evidence in vogue shall, mutatis mutandis, apply to the proceedings under this Act.
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35. Repeal. (1) The North-West Frontier Province Pre-emption Act, 1950 (N.W.F.P. Act XLV of 1950), is hereby repealed.

(2) In the cases and appeals filed under the law referred to in sub-section (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof.

(3) All other cases and appeals not covered under sub-section (2) and instituted under the law, referred to in sub-section (1) and, which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act.

Court Decisions
Pre-emption cases and appeals under repealed law–Provision in respect of–Whether repugnant to Injunctions of Islam–Question of–Section 35(3) deals with cases and appeals filed under repealed law which were pending on 31.7.1986 and in which decrees were not yet passed, were to lapse and suits of pre-emptors were to be dismissed except those in which right of pre-emption is claimed under provisions of Act of 1987–Held: There seems to be nothing in Section 35(3) which may be said as repugnant to Injunctions of Islam. (Per Tanzilur Rahman CJ). PLJ 1992 FSC 53

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36. Rules. Government may, in consultation with the Council of Islamic Ideology, by notification in the official Gazette, make such rules as it may consider necessary to carry out the purposes of this Act.
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Pakistan (Administration of Evacuee Property), 1949
Execution of Lease agreement–Sale of land by lessee and further sale by lessee–Acceptance of application u/s 3(2) of Punjab Alienation of Land Act, by D.C. holding that Section 12 of Pakistan (Administration of Evacuee Property) 1949 did not oust his jurisdiction concerning property belonging to evacuees–Constitutional petition against order of D.C. disposed of by High Court–Declaratory suit challenging vires of D.C. dismissed by Civil Court–Appeal dismissed by District Judge—High Court accepted appeal on merits and dismissed appeal being barred by time on failure of appellant to attach judgment and decree of trial Court with memo of appeal–Inter Court Appeal–Whether appeal was time–barred-Question of law–Discretion–Exercise of–Supreme Court has considered this proposition of law and held that High Court should have passed order on application of appellant for dispensing with production of certified copy of judgment and since record was available in High Court, prayer in application should have been allowed and discretion should have been exercised in favour of appellant when Court is vested with power to exempt party from performing legal obligation, but such request if declined and in the meanwhile Court has permitted period of limitation prescribed for performance of such obligation to expire, time must be extended by Court to enable party to perform such obligation, because no one can be made to suffer by any act of Court–Court has inherent power and existence of inherent power is to do justice based on sound judicial principles–Appeal accepted. AIR 1947 Calcutta 67; PLD 1999 SC 35; ILR Calcutta Series 1955; PLD 1959 Lah. 946 PLD 1989 SC 532. 2002 Lawvision 130 = PLJ 2002 LAHORE 90
S. 36(5) read with Pakistan (Administration of Evacuee Property) Act (X11 of 1957), S. 43 (6) as amended by Pakistan (Administration of Evacuee Property) (Amendment) Ordinance (LXIlI of 1962) S. 3-Question of Law-Maintainability of Review-Confirmed allottees filed review petitions to the Custodian of Evacuee Property acid based that respondents played fraud upon the Court in suppression of most material facts-Objection as to locus stands of applicant-Held : that power could not be denied to recall’ the earlier order irrespective of the locus standi of the applicant-Acting suo moto on the basis of information coming to notice otherwise than from parties directly interested-Review rightly allowed. P L J 1981 Supreme Court 936
Ss. 2(3) b, 22 & 41–Declaration–Suit for–Suit dismissed by trial court and appeal by Distt : Judge–Writ Petition also dismissed–Challenge to–Property purchases from non-muslim owner, after 1st March 1947 if not confirmed by Custodian under Section 22 of Act, shall be considered as Evacuee Trust Property within terms defined in Section 2(3) by of Pakistan (Administration of Evacuee Property) Act XII of 1957–Petition dismissed. PLJ 1996 SC 206
S. 16. S. 17 (as amended by Act VI of 1951), Ss. 23-A and 34 (3)—Sale (oral) effected in 1942. held, not affected by any provisions of Evacuee laws passed as Ordinance XVIII of 1948 or Ordinance Xll of 1957—Mutations creating or transferring any right in contravention of Ss. 16/23-A restricted by S. 17 (u amended)—Sale effected in 1942, mutation effected in 1947—Approval from custodian not required as matter not covered by S. 34 (3)—What cannot be done directly cannot be allowed to be done indirectly—Property in dispute not allowed to be treated evacuee property indirectly. P L J 1980 Karachi 84

Court Decisions
Constitutional petition—Dignity of man and privacy of home—Constitutional guarantee—Site located in vicinity of the city being used by Municipal Corporation City District Government for dumping of solid waste—On account of dumping of solid waste, there were heaps of garbage and area was full of dirty material—Hundreds of people had died in locality due to various diseases caused by dumping of solid waste—Enormous difficulties faced by people of locality could not be imagined—People of such locality being citizens of the country were entitled to equal protection of law—Pollution in the form of slow poisoning was being faced by people of the said locality since long—-Duty of City District Government was to redress grievance of people of such locality—High Court treated Constitutional petition as public interest litigation and directed the City District Government to make alternative arrangement and select suitable place for dumping of solid waste away from residential areas within one year, and till then take all necessary possible steps to minimize effects of dumping ground—Constitutional petition was disposed of accordingly. Mrs. Anjum Irfan v. L.D.A. Writ Petition No.25084 of 1997; PLD 2002 Lah. 555 and Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 rel. 2003 Lawvision 122 = 2003 CLC 576
Pollution free environment, necessity of— Responsibility of citizens and public functionaries to reduce pollution, emphasized. It is a matter of common knowledge that pollution creates dangerous gases etc. which are injurious not only to human life, but also to lives of animals, birds and plants. Pollution is the form of slow poisoning. Problem of pollution is more dangerous as compared to destruction by hydrogen bomb. It is proper and high time to implement law in letter and spirit without discrimination as life of human being is more precious. In fact, every one is not saved from attack of pollution. In this view of the matter, each and every citizen, public functionary, authority and body must discharge its responsibility to reduce this problem at any rate at any costs. Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 fol. 2003 Lawvision 122 = 2003 CLC 576
Shifting of factory for abatement of nuisance—Executive Magistrate in exercise of powers under S.133, Criminal Procedure Code, 1898, by his order, directed that leather factory owned by petitioner be shifted and that order was upheld in revision by Additional Sessions Judge holding that factory was causing nuisance to the inhabitants of the locality—Validity—Pakistan Environmental Protection Act, 1997 was a complete code for prevention/elimination of any pollution amounting to public nuisance as visualized by S.133, Cr.P.C.—Said Act being special statute would override the provisions of general statute i.e. Code of Criminal Procedure, in respect of matters covered by it and provisions of S.133, Cr.P.C. by implication would stand repealed—Executive Magistrate and then the Additional Sessions Judge, could not legally pass order for shifting factory of petitioners and they, by passing said order, had overstepped the limits of their jurisdiction—High Court in exercise of its Constitutional jurisdiction declared the orders without lawful authority. 2001 Lawvision 106 = 2001 CLC 1139

Court Decisions
Executive Magistrate in exercise of powers under S.133, Criminal Procedure Code, 1898, by his order, directed that leather factory owned by petitioner be shifted and that order was upheld in revision by Additional Sessions Judge holding that factory was causing nuisance to the inhabitants of the locality—Validity—Pakistan Environmental Protection Act, 1997 was a complete code for prevention/ elimination of any pollution amounting to public nuisance as visualized by S.133, Cr.P.C.—Said Act being special statute would override the provisions of general statute i.e. Code of Criminal Procedure, in respect of matters covered by it and provisions of S.133, Cr.P.C. by implication would stand repealed—Executive Magistrate and then the Additional Sessions Judge, could not legally pass order for shifting factory of petitioners and they, by passing said order, had overstepped the limits of their jurisdiction—High Court in exercise of its Constitutional jurisdiction declared the orders without lawful authority. 2001 Lawvision 106 = 2001 CLC 1139

Court Decisions
Executive Magistrate in exercise of powers under S.133, Criminal Procedure Code, 1898, by his order, directed that leather factory owned by petitioner be shifted and that order was upheld in revision by Additional Sessions Judge holding that factory was causing nuisance to the inhabitants of the locality—Validity—Pakistan Environmental Protection Act, 1997 was a complete code for prevention/ elimination of any pollution amounting to public nuisance as visualized by S.133, Cr.P.C.—Said Act being special statute would override the provisions of general statute i.e. Code of Criminal Procedure, in respect of matters covered by it and provisions of S.133, Cr.P.C. by implication would stand repealed—Executive Magistrate and then the Additional Sessions Judge, could not legally pass order for shifting factory of petitioners and they, by passing said order, had overstepped the limits of their jurisdiction—High Court in exercise of its Constitutional jurisdiction declared the orders without lawful authority. 2001 Lawvision 106 = 2001 CLC 1139

Court Decisions
Site located in vicinity of the city being used by Municipal Corporation City District Government for dumping of solid waste—On account of dumping of solid waste, there were heaps of garbage and area was full of dirty material—Hundreds of people had died in locality due to various diseases caused by dumping of solid waste—Enormous difficulties faced by people of locality could not be imagined—People of such locality being citizens of the country were entitled to equal protection of law—Pollution in the form of slow poisoning was being faced by people of the said locality since long—-Duty of City District Government was to redress grievance of people of such locality—High Court treated Constitutional petition as public interest litigation and directed the City District Government to make alternative arrangement and select suitable place for dumping of solid waste away from residential areas within one year, and till then take all necessary possible steps to minimize effects of dumping ground—Constitutional petition was disposed of accordingly. Mrs. Anjum Irfan v. L.D.A. Writ Petition No.25084 of 1997; PLD 2002 Lah. 555 and Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 rel. 2003 Lawvision 122 = 2003 CLC 576
Responsibility of citizens and public functionaries to reduce pollution, emphasized. It is a matter of common knowledge that pollution creates dangerous gases etc. which are injurious not only to human life, but also to lives of animals, birds and plants. Pollution is the form of slow poisoning. Problem of pollution is more dangerous as compared to destruction by hydrogen bomb. It is proper and high time to implement law in letter and spirit without discrimination as life of human being is more precious. In fact, every one is not saved from attack of pollution. In this view of the matter, each and every citizen, public functionary, authority and body must discharge its responsibility to reduce this problem at any rate at any costs. Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 fol. 2003 Lawvision 122 = 2003 CLC 576

Court Decisions
On account of dumping of solid waste, there were heaps of garbage and area was full of dirty material—Hundreds of people had died in locality due to various diseases caused by dumping of solid waste—Enormous difficulties faced by people of locality could not be imagined—People of such locality being citizens of the country were entitled to equal protection of law—Pollution in the form of slow poisoning was being faced by people of the said locality since long—-Duty of City District Government was to redress grievance of people of such locality—High Court treated Constitutional petition as public interest litigation and directed the City District Government to make alternative arrangement and select suitable place for dumping of solid waste away from residential areas within one year, and till then take all necessary possible steps to minimize effects of dumping ground—Constitutional petition was disposed of accordingly. Mrs. Anjum Irfan v. L.D.A. Writ Petition No.25084 of 1997; PLD 2002 Lah. 555 and Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 rel. 2003 Lawvision 122 = 2003 CLC 576
Responsibility of citizens and public functionaries to reduce pollution, emphasized. It is a matter of common knowledge that pollution creates dangerous gases etc. which are injurious not only to human life, but also to lives of animals, birds and plants. Pollution is the form of slow poisoning. Problem of pollution is more dangerous as compared to destruction by hydrogen bomb. It is proper and high time to implement law in letter and spirit without discrimination as life of human being is more precious. In fact, every one is not saved from attack of pollution. In this view of the matter, each and every citizen, public functionary, authority and body must discharge its responsibility to reduce this problem at any rate at any costs. Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 fol. 2003 Lawvision 122 = 2003 CLC 576
Executive Magistrate in exercise of powers under S.133, Criminal Procedure Code, 1898, by his order, directed that leather factory owned by petitioner be shifted and that order was upheld in revision by Additional Sessions Judge holding that factory was causing nuisance to the inhabitants of the locality—Validity—Pakistan Environmental Protection Act, 1997 was a complete code for prevention/elimination of any pollution amounting to public nuisance as visualized by S.133, Cr.P.C.—Said Act being special statute would override the provisions of general statute i.e. Code of Criminal Procedure, in respect of matters covered by it and provisions of S.133, Cr.P.C. by implication would stand repealed—Executive Magistrate and then the Additional Sessions Judge, could not legally pass order for shifting factory of petitioners and they, by passing said order, had overstepped the limits of their jurisdiction—High Court in exercise of its Constitutional jurisdiction declared the orders without lawful authority. 2001 Lawvision 106 = 2001 CLC 1139
Court Decisions
During pendency of suit application was moved by defendant for rejection of plaint for want of jurisdiction—Contentions of the defendant were that Civil Court had no jurisdiction to entertain suit in respect of environmental problem and that in presence of special law in form of Pakistan Environmental Protection Act, 1997, Trial Court had proceeded on wrong premises to assume jurisdiction and. entertain the suit and that Environmental Tribunals had been constituted with exclusive jurisdiction to try serious offences under Pakistan Environmental Protection Act, 1997 and aggrieved person could file a complaint with Tribunal after giving 30 days notice to Federal Agency or Provincial Agency concerned, but plaintiffs instead of having recourse to the Tribunal to redress grievance, had directly approached the Civil Court without any justifiable reason-Validity—Contentions were repelled, because having regard to facts and circumstances of the case and reliefs claimed by the plaintiffs, Trial Court was quite justified in holding that Civil Court was possessed of jurisdiction to entertain the suit—Environmental Tribunals though had been constituted to deal with matters of environmental pollution etc., but in view of reliefs contained in plaint including recovery of damages etc., Civil Court was possessed of jurisdiction—Trial Court, in circumstances, had justifiably declined the rejection of plaint. 2003 Lawvision 13 = 2003 MLD1176

Court Decisions
Contentions of the defendant were that Civil Court had no jurisdiction to entertain suit in respect of environmental problem and that in presence of special law in form of Pakistan Environmental Protection Act, 1997, Trial Court had proceeded on wrong premises to assume jurisdiction and. entertain the suit and that Environmental Tribunals had been constituted with exclusive jurisdiction to try serious offences under Pakistan Environmental Protection Act, 1997 and aggrieved person could file a complaint with Tribunal after giving 30 days notice to Federal Agency or Provincial Agency concerned, but plaintiffs instead of having recourse to the Tribunal to redress grievance, had directly approached the Civil Court without any justifiable reason-Validity—Contentions were repelled, because having regard to facts and circumstances of the case and reliefs claimed by the plaintiffs, Trial Court was quite justified in holding that Civil Court was possessed of jurisdiction to entertain the suit—Environmental Tribunals though had been constituted to deal with matters of environmental pollution etc., but in view of reliefs contained in plaint including recovery of damages etc., Civil Court was possessed of jurisdiction—Trial Court, in circumstances, had justifiably declined the rejection of plaint. 2003 Lawvision 13 = 2003 MLD1176

Possession
Possession follows the title. 2001 Lawvision 82 = PLD 2001 Lahore 390
K.D.A. plot– Whether petitioner was put in possession of plot–Question of–Two witnesses examined by petitioner have fully supported case of petitioner that actual physical possession was handed over to him by K.D.A–Even respondent’s own witness has stated in cross-examination that plaintiff was in unauthorised possession of suit plot–This admission shows that actual physical possession is with petitioner and there is no reason to disbelieve petitioner’s witnesses on this point–Held: Judgment of lower appellate court is based on evidence not on record and on grounds taken by respondent which in law could not have been urged–Petition accepted. PLJ 1993 Karachi 84
Whether possession and cultivation are coterminous–Question of–Both in law and common sense, possession and cultivation are two different things–A piece of land may be possessed without being cultivated for a particular crop or crops–In this case, fact of matter is that possession of petitioner over Khassa No.215/19 is established from Girdawari prior to Rabi 1973–Even in common sense, a tenant is not supposed to cultivate every bit of his tenancy in every crop–It would be preposterous to assume that moment a tenant leaves a piece of land under his possession as fallow, he loses his possession over it–Held: It is quite clear that concept of possession and concept of cultivation are two different things in law relating to tenancy. PLJ 1991 Revenue 14
Cosharer in possession of specific portion of joint property cannot he ousted till joint property is partitioned—Possession for long period” -Would not make any difference due to six months’ period of limitation prescribed for suit under S. 9. Specific Relief Act (I877). P L J 1980 Lahore 234
Dispossession forcibly—Two remedies for seeking redress —Suit under S 9,- Specific Relief Act (1877) and proceedings for partition of joint property—Third remedy that is ordinary suit for restoration of exclusive possession not warranted in law as that would place one set of cosharers in more advantageous position as compared with others. P L J 1980 Lahore 234
Each co owner interested in every portion of joint property and has right to he. in possession of over part of jointly with others-Every use of joint property by one co owner does not render him liable to legal action. P L J 1981 Lahore 62
Possession in joint property-Cosharer has right to reasonable enjoyment of joint property provided be does not interfere with it suitable ne by other cosharers Cosharer may legally alternate his own share out of undivided property. P L J 1981 Lahore 62)
Suit for possession of house—Defendant not filing written statement for about fourteen months—Trial Court closing defence and pronouncing judgment—Decree affirmed in first appeal-Second appeal—Held: that R. 10, O. 13, Civil P. C. (1908) does not contemplate pronouncement of judgment as only measure for it leaves Court with wide. discretion to make any other order—Judgment of Courts below set aside and case remanded to trial Court for proceeding in suit in absence of written statement. PLJ 1980 Lahore 66

Court Decisions
Execution of Lease agreement–Sale of land by lessee and further sale by lessee–Acceptance of application u/s 3(2) of Punjab Alienation of Land Act, by D.C. holding that Section 12 of Pakistan (Administration of Evacuee Property) 1949 did not oust his jurisdiction concerning property belonging to evacuees–Constitutional petition against order of D.C. disposed of by High Court–Declaratory suit challenging vires of D.C. dismissed by Civil Court–Appeal dismissed by District Judge—High Court accepted appeal on merits and dismissed appeal being barred by time on failure of appellant to attach judgment and decree of trial Court with memo of appeal–Inter Court Appeal–Whether appeal was time–barred-Question of law–Discretion–Exercise of–Supreme Court has considered this proposition of law and held that High Court should have passed order on application of appellant for dispensing with production of certified copy of judgment and since record was available in High Court, prayer in application should have been allowed and discretion should have been exercised in favour of appellant when Court is vested with power to exempt party from performing legal obligation, but such request if declined and in the meanwhile Court has permitted period of limitation prescribed for performance of such obligation to expire, time must be extended by Court to enable party to perform such obligation, because no one can be made to suffer by any act of Court–Court has inherent power and existence of inherent power is to do justice based on sound judicial principles–Appeal accepted. AIR 1947 Calcutta 67; PLD 1999 SC 35; ILR Calcutta Series 1955; PLD 1959 Lah. 946 PLD 1989 SC 532. 2002 Lawvision 130 = PLJ 2002 LAHORE 90

Punjab Courts of Wards Act, 1903
Act to safeguard interests of land holders by protecting their property. Property includes immovable as well as movable one-Contention that word “property” relates to immovable property alone repelled-Court of Wards, held, to preserve and protect property of wards from extravagance or waste-Court if not entitled to pass order protecting property before assuming superintend dance of property the same would be allowed to be damaged-Held: such inference to be drawn from Act which is aimed at safeguarding interests of wards. P L J 1981 Lahore 122
No specific provisions empowering Commissioner to pass interim order-Commissioner, held, has power to pass interim order same being ancillary and incidental to final proceedings. P L J 1981 Lahore 122
Ss. 6, 44 and 47-Control and superintendence of property to be assumed only when Court satisfied regarding incapability of managing affairs by minor or person of unsound mind and not otherwise-No order of resumption to be passed in absence of material to that effect-Court may release such person or property or both from superintendence when cause for resumption removed Control to he released when landholder able to manage affairs properly Contentions that power of Court while resuming control and superintendence of property are unlimited, held, not correct. P L J 1981 Lahore 97
Ss. 6. 5-Contention that impugned order is against fundamental rules and judicial procedure due to absence of framing of issues, examination of parties and lacking of evidence-Held; order being passed u/s 6, there was no need to follow such procedure-Order if passed under S. 5 (2), (b), (c), (d) inquiry and probe might have been necessary-Further held, enmity and hatred having been developed between parties, conclusion that parties were incapable of managing property of minors. unexceptionable. P L J 1981 Lahore 97
S.16–Alienation of property under superintendence of Court of wards–Sanction of–Whether decrees will be void for lack of sanction for alienating property–Question of–Some superintendence is maintained upon person whose property was once placed under Court of wards–Property placed under Court of wards does not become property of provincial Government–Granting sanction for alienation of such like property will be in general and routine as a rule, but withholding sanction by provincial Government will require reasonably strong legal grounds–Embargo of `Sanction’ is for convenience of acts of Court of Wards and its facilitation in respect of property so that there may not be conflicting rights created in property–Held: To assume that transactions and acts of Abdul Latif Khan declarant, were void ab-initio, is not countenanced by law of land and is neither object nor necessary intendment of Court of Wards Act, especially when Act had ceased to apply to property of ward. PLJ 1994 Peshawar 33
Ss. 4(1), 5(2) and 6–By virtue of notification issued by Collector in exercise of power conferred upon him by section 5(2) and S. 6 of Punjab Court of Wards Act, assumed superintendence of persons and property mentioned therein–Validity of notification–Challenge to–Under S. 5 of Act, a land-holder may apply and upon receiving such an application, Board of Revenue can make an order accordingly–S. 6 of Act, however, confers power of assuming superintendence of property on its own motion upon the Court of Wards (Commissioner of Division is a Court of Wards)–Since amendment in S. 4(1) came into force on 31.1.1968–There is, therefore, no force in argument that it is only Board of Revenue who can issue a notification for assumption of superintendence of property of described persons–Petition dismissed. PLJ 1996 Lahore 1386
S. 5-Applicability of-Board of Revenue may place property of certain persons under superintendence of Court of wards-Resumption of land of minor not contemplated. P L J 1981 Lahore 97
S. 4-Words “situate” used specifically for purpose of conferring jurisdiction Meaning not to be extended to show that jurisdiction of Court extends only to immovable, property. P L J 1981 Lahore 122

Court Decisions
Immovable property– Whether Section 2(a) is repugnant to Injunctions of Islam–Question of–Contention that a property can be exempted from pre-emption on basis of necessity, to avoid frivolous suits, therefore, exemption of urban areas should not have been declared repugnant to Injunctions of Islam–In Islamic law of pre-emption, there are only three categories of pre-emptors which cannot be increased–Moreover, suit for pre-emption cannot be filed unless plaintiff has made three kinds of Talbs within a few months–In view of these restrictions, frivolous suits cannot be filed if pre-emption law is applied to urban areas–Held: Section 2(a) of Act is repugnant to Injunctions of Islam to extent that it excludes all urban properties and properties within cantonment limits from application of Act. PLJ 1994 SC 221 PLJ 1986 SC 576 and PLJ 1990 SC 395 ref. Whether repugnant to Injunctions of Islam–Question of–Definition excludes immovable property situated in Urban areas or within Cantonment limits–It appears that by restricting definition of immovable property, an indirect attempt has been made to exempt immovable property situated in those areas from application and enforcement of Islamic law of pre-emption–Held: Provision of Section 2(a) to extent of exclusion of property situated in urban area or within Cantonment limits, is repugnant to Injunctions of Islam. PLJ 1991 FSC 93

Court Decisions
Sale:– Whether provisions of Section 2(d) are repugnant to Injunctions of Islam–Question of–Contention that “hiba biliwad” is not a sale and is not pre-emptible–“Hiba bil-iwad” or “hiba bashart-aliwad” is one and same thing–Properties transferred in both forms amount to sale and so are pre-emptible–Held: There is no repugnancy in clause (d) of Section 2 of Act. PLJ 1991 FSC 93
Stages at which such right was available. Right of pre-emption was available at four different stages viz; at the time of sale of property in question; at the time of institution of suit; at the time of decree of suit; and at the time of execution of decree. Right of pre¬emption being not available to plaintiff on two stages t.e./ at the time of sale of property and at the time of institution of suit, rejection of his plaint in suit for .pre-emption was un-exceptional.-P.L.J.2000 Lah. 909.
Immovable property. Whether Section 2 is repugnant to Injunctions of Islam. Contention that a property can be exempted from pre-emption on basis of necessity, to avoid frivolous suits, therefore, exemption of urban areas should not have been declared repugnant to Injunctions of Islam. In Islamic law of pre-emption, there are only three categories of pre-emptors which cannot be increased. Moreover, suit for pre¬emption cannot be filed unless plaintiff has made three kinds of Talbs within a few months. In view of these restrictions, frivolous suits cannot be filed if pre-emption law is applied to urban areas. Section 2of Act is repugnant to Injunction of Islam to extent that it excludes all urban properties and properties within Cantonment limits from application of Act. P.L.J.1994 SC 221 = PLD 1994SC 1. Plea of defendants that land in question, being situated within Municipal Limits, was not covered by provision of S. 2of Punjab Pre-emption Act 1991 was not decided by Courts below – Case was thus, remanded to trial Court for decision of the suit on basis of assertions, in pleadings. P.L.J. 2002 SC 145 Dismissal of pre-emption suit on the ground that property in question, being immovable urban property was situated within cantonment limits and, thus, not pre-emptible in terms of S. 2, Punjab Pre-emption Act, 1991. Validity. Sale in question, took place on 17.8.1993; suit was instituted’on 16,12.1993; on both such dates urban immovable property or property situated within cantonment limits, was not pre-emptible as Section 2Punjab Pre¬emption Act, 1991 as attracted to such property. Judgment of S.C.( P.L.J.1994 SC 221) had declared provision of Section 2Punjab Pre-emption Act, 1991 being repugnant to injunctions of Islam to the extent that the same excluded all urban properties and property situated within cantonment limits, permanently from the application of the Act and made its Judgment effective from 31.12.1993. S.C.had not made effective its Judgment retrospectively which means that right of pre-emption on urban immovable property and property situated within cantonment limit, was available with effect from 31.12.1993 and not on 17.8.1993 when sale took place and on 16.12.1993, when suit was instituted,, plaint was thus, rightly rejected by Courts below. No illegality in impugned Judgment, having been pointed out, no interference was warranted in the same. P.L.J.2000 Lah. 909.

Court Decisions
Sale, whether divisible or not—Criteria for determination stated, PLD 2003 Lah. 245
Right of Pre-emption-Principal of sinker-Applicability-Where there are more than one pre-emptors and any of them had failed to prove talbs, but otherwise, has right of pre-emption, it is he who would be non-suited and case would proceed for remaining plaintiffs, as if the plaintiff failing to establish talbs was not a party to proceedings-Where, however, plaintiff has no right of pre-emption, irrespective he has made or proved talbs, principle of sinker would apply and other plaintiff would also suffer entailing dismissal of their suit, on account of joining alongwith them a stranger to the cause-Court having given finding in present case that all the four plaintiffs had proved their right of pre-emption and such finding having not been challenged such finding had attained finality-Principle of sinker would not apply even if two plaintiffs had given up their claim of pre-emption in favour of other plaintiffs. 2004 Lawvision 8 = PL J 2004 Lahore 211
Statement relating to talb-i-muwathibat not corroborated-Solitary statement of a witness had rightly not been believed by two Courts below-No misreading of evidence was pointed out to warrant interference in revisional jurisdiction-Order of dismissal of suit was maintained. 2004 Lawvision 8 = PL J 2004 Lahore 211
Right of Pre-emption-Principal of sinker-Applicability-Where there are more than one pre-emptors and any of them had failed to prove talbs, but otherwise, has right of pre-emption, it is he who would be non-suited and case would proceed for remaining plaintiffs, as if the plaintiff failing to establish talbs was not a party to proceedings-Where, however, plaintiff has no right of pre-emption, irrespective he has made or proved talbs, principle of sinker would apply and other plaintiff would also suffer entailing dismissal of their suit, on account of joining alongwith them a stranger to the cause-Court having given finding in present case that all the four plaintiffs had proved their right of pre-emption and such finding having not been challenged such finding had attained finality-Principle of sinker would not apply even if two plaintiffs had given up their claim of pre-emption in favour of other plaintiffs. 2004 Lawvision 23 = PL J 2004 Lahore 211

Statement relating to talb-i-muwathibat not corroborated-Solitary statement of a witness had rightly not been believed by two Courts below-No misreading of evidence was pointed out to warrant interference in revisional jurisdiction-Order of dismissal of suit was maintained. 2004 Lawvision 23 = PL J 2004 Lahore 211
read with Section 30–Pre-emption–Suit for–Whether sale through decree for specific performance is excluded from definition of sale–Question of–Held: It is obvious from definition of sale that sale through decree for specific performance has not been excluded from definition of sale–Held further: Sub-section (1) of Section 30 of Act also implies that an oral sale whereunder physical possession is delivered, is enough for treating such oral transaction as sale for purpose of Punjab Pre-emption Act, 1913. PLJ 1991 SC 425 1988 SCMR 1861 and PLD 1967 SC 411 reiterated

Court Decisions
Pre-emptor claimed to be a collateral of vendors, whereas vendees pleaded to be tenant in suit land—Trial Court decreed the suit, while appellate Court partly accepted appeals of vendees founding that pre-emptor had no right of pre-emption to the extent of one vendor being his collateral and excluded her share—Contention of one of the vendee was that his share was specified in sale-deed and he having been proved to be a non-occupancy tenant in suit land, was entitled to retain land to the extent of his share—Validity—Plea had not been taken that sale was divisible and that vendees had contributed the price in accordance with their respective shares—Vendees could not take such a plea in their written statement for having pleaded that all of them were tenants in suit sale price in lump sum from vendees at the time fo registration—Vendee/appellant while appearing as witness stated that sale took place for Rs. 35, 000 and his share was 3/4th and he paid amount separately in such proportion—Such fact had not been stated in sale-deed—other witness after making statement similar to that of appellant/vendee had admitted that such fact was neither noted in registered sale-deed not his presence was recorded therein—Nothing turned in favour of vendees on the basis of sale-deed—Another witness could not explain as to how the amount was contributed and when and how same was separately paid—courts below had rightly found that sale was not divisible—Appellant/vendee could not be allowed to retain land purchased by him on the ground that he being a non-occupancy tenant therein had joined strangers with him- High court dismissed the appeal in circumstances. PLD 2003 Lah. 245
Defendant’s failure to challenge finding on specific issue before First Appellate Court and to incorporate ‘ such point in the memorandum of second appeal – Effect–­ Defendant had set up plea of exchange in his written statement which was found to be illogical and not borne out from the -record – Defendant had failed to challenge such finding before First Appellate Court and to incorporate such
point in memo. of second appeal – Defendant was thus precluded to raise such question in second appeal. P L D 1993 Lah. 168
Suit barred by limitation on account of supply of deficit court-fee-Plaintiff not required to obtain statement of net profits before filing suit for pre-emption -Failure of plaintiff to obtain statement of net profits will operate against him when considering question of entertaining court-fee, if same was supplied after institution of suit on, (or even without) objection from defendant or Court-Right of pre-emption established-Court cannot refuse such right in exercise of discretion-Plaintiff cannot be deprived of his right for mere lapse of time unless there had been abandonment, acquiescence or waiver or at least, an alteration in position of defendant in that other party has been put in a situation in which it would not be reasonable to place him, if remedy were afterwards to be asserted-Mere fact that plaintiff waited till last day of limitation would not disentitle him to any relief, discretionary or otherwise simply because plaintiff availed of full period of limitation. P L D 1984 S.C.157
Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 S C 821; Ghulam Nabi and others v. Seth Muhammad Yaqub and others P L D 1983 S C 344 and Fateh Muhammad v. Abdul Ghani and another P L D 1981 S C 371 ref.
Relevant net profits of land wrongly assessed or not assessed at all, or if assessed statement not made available to plaintiff within period of limitation or even if plaintiff obtained statement same appeared to be tainted with overwriting or forgery and plaintiff not taking any risk and not filing-Held, law of limitation or for that matter pre-emption, did not in any way provide that if and when plaintiff files a suit without statement of net profits, same shall be deemed that plaintiff acted illegally or dishonestly. P L D 1984 S.C.157
Plaintiff making application for supply of relevant statement of net profits on day he filed suit with understanding therein that as and where proper court-fees is determined plaintiff would pay same ; together with his application on receipt of said statement, for submission of proper court-fees worked out on basis thereof-Challan for purchase of court-fee stamps submitted with such application was for proper – court-fees and accordingly amount was deposited-Held, it was an amply fit case for allowing request of plaintiff made (amongst other provisions) under S. 1.49, C. P. C.-Failure to exercise discretion in favour of plaintiff in such case was on account of misunderstanding of legal question of limitation and liable to be corrected by High Court-High Court having not corrected question of limitation, S.C. allowed appeal, set aside Judgment and decree and allowed application of plaintiff seeking permission to pay court-fees and simultaneously producing challans of deposit of court fees with necessary consequences that suit as instituted would in law be deemed to have been filed with proper fee-Case and record remitted to trial Court for determination on merits. P L D 1984 S.C.157
Payment of court-fees in pre-emption suit on determination of value of subJect-matter in that behalf through (prevalent) practice of calculation on basis of annual net profits, held, has led to unfortunate long delays, unnecessary expense and unnecessary litigation on hypertechnical issues-Attempts also made to misuse law and practice in order to obtain undue advantage-Amendment in relevant law suggested.
The experience so far gained regarding the payment of court-fee in preemption suits on determination of the value of the subJect-matter in that behalf through the prevalent practice of calculation on the basis of the annual net profits, has led to unfortunate long delays, unnecessary expense as also unnecessary litigation on hypertechnical issues. Sometimes attempts are made to misuse the law and practice in order to obtain undue advantage. It is appropriate that the concerned agency should examine the feasibility of amending the law regarding court-fee in pre-emption cases (at whatever limit of valuation it is decided to levy) on the basis of the sale price asserted by the vendee as paid by him. On account of devaluation and widespread inflation the value of immovable property has increased many times. If a pre-emptor is ready to pay the price paid by the vendee or whatever is determined by the Court, as the price payable by him, he should be ready to pay the court-fee accordingly (if, of course, on principle the court-fee is made leviable as the limit of the value concerned) In cases where ultimately the amount of court-fee determined by Court as payable, on a claim to be presented by the plaintiff, is found to be less than what was originally paid by him at the time of the filing of the suit, the excess amount could be refunded in accordance with law. The principle and procedure for refund of income-tax paid in excess of the due amount can, with advantage mutatis mutandis be adopted in this behalf also: P L D 1984 S.C.157
Pre-emption. Benami transaction has Judicial recognition and is permissible under law, therefore, it cannot be said that such question does not fall within purview of Section 4 of Pre-emption Act. If it is found that sale transaction in question is Benami and that pre-emptor has no preferential right of pre-emption as against real owner, for whom Benamidar stands as a trustee, suit for pre-emption in respect thereof would not succeed. As findings of courts below that respondents/vendees were Benamidar for Farzand Ali against whom appellant had no preferential right of pre-emption, have not been challenged, suit was rightly dismissed. P.L.J.1995 S.C. 541 = 1995 SCMR 1276.
Pre-emption. First part of Section 4 deals with right of pre¬-emption while second part empowers court to enquire into nature of transaction under pre-emption as such right arises of a sale or foreclosure to redeem. Court as such is not debarred from going into all questions raised in respect of sale including its Benami nature and once sale is questioned it becomes duty of court to determine such questions.-P.L.J.1995 S. C. 541 = 1995 SCMR 1276.

Court Decisions
Right of pre-emption :– Right of pre-emption arises only in case of sale of immovable property vide S. 5 of Punjab Pre-emption Act, 1991, as same can take place either by registration of sale-deed or otherwise as provided under S. 30 of Punjab Pre-emption Act, 1991, when title of said property as required by law is passed on to vendee i.e. where deed of conveyance is registered or otherwise. Such right of pre-emption to pre-emptor does not arise when public notice is affixed as registration of a document is not a thing of which either executant, i.e. vendor, or vendee has to do anything in that direction as such act is to be performed after execution of a document by parties by officer appointed by law for that purpose. Per Hamid Ali Mirza, J.-P.L.J.2001 SC 1232 = PLD 2001 SC 499.
Contention of the defendants that the plaintiff had failed to bring on record the jamabandi pertaining to the period, when the decree was passed, would mean that according to such contention, the plaintiff must have alienated the property, or was divested of his ownership during the pendency of the suit—Validity—Held, in order to prove, if such an eventuality had occurred, no evidence had been led meaning thereby that on the basis of the documents on the record the plaintiff continued to be the owner in the estate at all stages relevant for the Purposes of sustaining a pre-emption action. PLD 2003 Lah. 544
Claim of superior right of pre-emptors being owners in the estate—Contentions of the defendants, inter alia, were that the plaintiff did not have the superior right and that the property in question was originally an evacuee property, which had been transferred in favour of the allottee and thereafter, purchased by the vendee, and the settlement fee having not been paid to the Settlement Department, the property was not pre-emptible—Validity—Land had permanently been settled upon the transferee in view of amended S. 16 of the Displaced persons (Land Settlement) Act, 1958 which he sold in favour of the vendees, therefore a valid sale was made in favour of the vendees which was pre-emptible under the law—Property was validly transferred in favour of the vendees on account of sale and it did not lie in their mouth to plead that the sale was invalid, because of the non-payment of the settlement fee as the sale qua the vendees had been effected through registered deed—Civil Court, in circumstances, had the jurisdiction to decide the pre-emption action in circumstances. PLD 2003 Lah. 544
Principal of sinker, If a person having a right of pre-emption, who joined as a plaintiff, subsequently at any point of time, withdrew from the proceedings or due to inaction in filing appeal against the judgment and decree, which went against him, the whole suit could not be dismissed on the principle of sinker on account of such conduct of the said person. PLD 2003 Lah. 544

Court Decisions
1. Stages at which such right was available
2. Claim of pre¬emption based on being co-Sharer of land in question
3. Shafi Khalit
4. Suit for pre-emption
5. Deposit of one-third amount of sale price
6. Zaroorat or to avoid zarar
7. Amendment of plaint to add “Zaroorat
1. Stages at which such right was available. Right of pre-emption was available at four different stages viz; at the time of sale of property in question; at the time of institution of suit; at the time of decree of suit; and at the time of execution of decree. Right of pre¬emption being not available to plaintiff on two stages t.e./ at the time of sale of property and at the time of institution of suit, rejection of his plaint in suit for .pre-emption was un-exceptional.-P.L.J.2000 Lah. 909.
2. Claim of pre¬emption based on being co-Sharer of land in question. Land shown to be owned by plaintiff in Rev. record in fact, was purchased with intention to use the same for purpose of grave-yard of inhabitants of village. Evidence on record indicated that such land was purchased through Contribution of residents of village. Even some portion of land had been donated by seller. Absence of cross-examination on such aspect would have the effect of admission of such fact by plaintiff. Such property would be deemed to be waqf property vesting in God Almighty and the only reason that name of plaintiff was entered in Rev. record as owner thereof, would not establish that he was owner/co-Sharer entitling him to file suit for pre-emption. Plaintiff, thus, had failed to prove his claim for. pre-emption on basis of his being co-Sharer in property-in question.-P.L.J.2000 Lah. 1468.
Dismissal of suit for pre-emption on the ground of non-proof of talbs by Trial was decreed by Appellate court–Validity–Trial Court while rendering its finding on issue of talbs discussed in detail evidence brought on record–Appellate court, however, did not discuss evidence to see whether talbs-Muwathibat was sufficiently proved or not and without offering any reason or discussion merely stated that talb-e-Muwathibat was proved–Manifestly judgment of Appellate Court suffers from misreading and non-reading of evidence–Appellate Court had failed to exercise Jurisdiction vested in him–Plaintiff admittedly had knowledge of sale prior to the state when he filed suit for pre-emption–Judgment and decree passed by Appellate Court was set aside while that of Trial Court dismissing plaintiff’s suit was restored. 2002 Lawvision 160 = PLJ 2002 Lahore 252
Pre-emption–Suit of–Punjab–Pre-emption Act, 1991 confers right of pre-emption on (a) Shafi Sharik, (b) Shafi Khalit and (c) Shafi Jar in according with section 6, which further provides that “right of pre-emption shall be exercisable only in case of `Zaroorat’ or to avoid `Zarar’–plaintiff had not pleaded that conditions laid down in section 6 and 13 were fulfilled by him–Since none of conditions conferring right of pre-emption on petitioner, or right of file suit or that requisite `Talab’ were made, were even averred in plaint, suit of petitioner was rightly dismissed–Revision petition dismissed. PLJ 1996 Lahore 804
3. Shafi Khalit—Common passage in between pre-emptor’s land and disputed land—Pre-emptor could not claim superior right of pre-emption on proof of mere fact that both such lands were situated on a thoroughfare. PLD 2003 Lah. 413
Right of passage – Not its user, but ownership in passage would equip a person with superior right of pre-emption being Shafi Khalit. PLD 2003 Lah. 413
Dismissal of pre-emption suit on the ground that property in question, being immovable urban property was situated within cantonment limits and, thus, not pre-emptible in terms of S. 2, Punjab Pre-emption Act, 1991. Validity. Sale in question, took place on 17.8.1993; suit was instituted’on 16,12.1993; on both such dates urban immovable property or property situated within cantonment limits, was not pre-emptible as Section 2Punjab Pre¬emption Act, 1991 as attracted to such property. Judgment of S.C.( P.L.J.1994 SC 221) had declared provision of Section 2Punjab Pre-emption Act, 1991 being repugnant to injunctions of Islam to the extent that the same excluded all urban properties and property situated within cantonment limits, permanently from the application of the Act and made its Judgment effective from 31.12.1993. S.C.had not made effective its Judgment retrospectively which means that right of pre-emption on urban immovable property and property situated within cantonment limit, was available with effect from 31.12.1993 and not on 17.8.1993 when sale took place and on 16.12.1993, when suit was instituted,, plaint was thus, rightly rejected by Courts below. No illegality in impugned Judgment, having been pointed out, no interference was warranted in the same. P.L.J.2000 Lah. 909.
4. Suit for pre-emption—Both courts of competent jurisdiction had rightly appreciated evidence on record while decreeing the suit of plaintiff/Pre-emptor—In absence of any misreading/non-reading of evidence or any material irregularity or any jurisdictional error or defect, judgments and decrees could not be interfered with in revisional jurisdiction of High Court. 2004 M L D 341
5. Deposit of one-third amount of sale price—Limitation for—Delay, condo nation of—Trial court directed plaintiff to deposit Zare-e-soim/one-third amount of sale price within thirty days, but plaintiff deposited said amount one day beyond period of thirty days and for said default his suit was dismissed by trial court and order of Trial court was upheld in appeal—period of thirty days as provided under provisions of S. 24 of Punjab pre-emption Act, 1991, would be counted on filing of suit and plaintiff was duty bound to deposit one-third sale amount as on as he would institute the suit—proviso to S. 24 of Pre-emption Act, 1991 having barred the discretion of court to extend time beyond thirty days, court could not extend same and plaintiff was duty bound to deposit one-third within prescribed period of thirty days—Plaintiff though had deposited one-third in compliance of direction of court, but same having been deposited one day after expiry of thirty days, his suit was rightly dismissed on that ground—Where law required a particular thing to be done in a given manner, it had to be done in that manner— Requirement of deposit of one-third was mandatory in nature and not directory and plaintiff was required to deposit same within thirty days. 2004 C L C 538
6. Zaroorat or to avoid zarar. Enactment in Section 6(2) of Act. Whether repugnant to Injunctions of Islam. Contention that although Federal Shariat Court accepted that law of pre-emption is based on Zaroorat and its main purpose is to avoid Zarar, yet it has struck down Sub-Section (2) There is no Juristic opinion that law of pre-emption is based on Zaroorat. However, Zarar is relevant and a large number of Jurists have held that law of pre-emption has been enacted in Shariah to avoid Zarar. Procedure prescribed for three Talbs is sufficient to establish right and additional condition to prove Zarar, cannot be imposed on plaintiff. Sub-Section (2) of Section 6 contravenes Injunctions of Islam and Judgment of Federal Shariat Court is well founded. P.L.J.1994 SC 221 = PLD 1994 SC 1.
7. Amendment of plaint to add “Zaroorat”. Permission for amendment granted. Contention that failure to plead expressly relevant assertions as to “Zaroorat” or “Zarar” could not be allowed to be remedied by allowing amendment and suit was liable to dismissal. Plea of “Zaroorat” and “Zarar” was considered necessary part of plaint in view of Section 6(2) of Punjab Pre-emption Act, but that section has been held to be repugnant to Injunctions of Islam. Now a pre-emption suit cannot, be dismissed for want of pleading “Zaroorat” or avoidance of “Zarar”.-P.L.J.1994 Lah. 200 = 1994 CLC 788.
Dismissal of suit for pre-emption on the ground of non-proof of talbs by Trial was decreed by Appellate court–Validity–Trial Court while rendering its finding on issue of talbs discussed in detail evidence brought on record–Appellate court, however, did not discuss evidence to see whether talbs-Muwathibat was sufficiently proved or not and without offering any reason or discussion merely stated that talb-e-Muwathibat was proved–Manifestly Judgment of Appellate Court suffers from misreading and non-reading of evidence–Appellate Court had failed to exercise Jurisdiction vested in him–Plaintiff admittedly had knowledge of sale prior to the state when he filed suit for pre-emption–Judgment and decree passed by Appellate Court was set aside while that of Trial Court dismissing plaintiff’s suit was restored. P.L.J. 2002 Lah.252
Zaroorat or to avoid zarar–Condition of–Enactment in Section 6(2) of Act–Whether repugnant to Injunctions of Islam–Question of–Contention
Provisions of. sub-section (2) of Section 6–Whether repugnant to Injunctions of Islam–Question of–Held: Sub-section (2) of Section 6 of Act is repugnant to principles enunciated in Sunnah of Holy Prophet (peace be upon him). PLJ 1991 FSC 93

Court Decisions
Claim of superior right of pre-emption by the plaintiff—Contention of the defendants that the plaintiff had failed to bring on record the jamabandi pertaining to the period, when the decree was passed, would mean that according to such contention, the plaintiff must have alienated the property, or was divested of his ownership during the pendency of the suit—Validity—Held, in order to prove, if such an eventuality had occurred, no evidence had been led meaning thereby that on the basis of the documents on the record the plaintiff continued to be the owner in the estate at all stages relevant for the Purposes of sustaining a pre-emption action. PLD 2003 Lah. 544
Displaced persons (Land Settlement) Act (XLVII of 1958), S. 16 (amended)—Pre-emption suit – Claim of superior right of pre-emptors being owners in the estate—Contentions of the defendants, inter alia, were that the plaintiff did not have the superior right and that the property in question was originally an evacuee property, which had been transferred in favour of the allottee and thereafter, purchased by the vendee, and the settlement fee having not been paid to the Settlement Department, the property was not pre-emptible—Validity—Land had permanently been settled upon the transferee in view of amended S. 16 of the Displaced persons (Land Settlement) Act, 1958 which he sold in favour of the vendees, therefore a valid sale was made in favour of the vendees which was pre-emptible under the law—Property was validly transferred in favour of the vendees on account of sale and it did not lie in their mouth to plead that the sale was invalid, because of the non-payment of the settlement fee as the sale qua the vendees had been effected through registered deed—Civil Court, in circumstances, had the jurisdiction to decide the pre-emption action in circumstances. PLD 2003 Lah. 544

Court Decisions
Whether suit land is exempt from pre-emption. Notification issued U/S. 3, of Government Tenants (Punjab) Act 1893 was applied to Chak No. 4 where suit land is situated. Subsequent acquisition of proprietary rights did not exclude application of Colonization of Government Lands Act, 1912 and notification under Section 8(2) of Act 1913 unless application of 1912 Act was specially excluded under Section 5 thereof. At time of sale of suit land, Colonization of Government Lands Act was applicable and by virtue of Notification, -its sale was exempt from pre-emption.-P.L.J.1994 Lah. 439 == 1994 MLD 791.
Principal of sinker- Where there are more than one pre-emptors and any of them had failed to prove talbs, but otherwise, has right of pre-emption, it is he who would be non-suited and case would proceed for remaining plaintiffs, as if the plaintiff failing to establish talbs was not a party to proceedings-Where, however, plaintiff has no right of pre-emption, irrespective he has made or proved talbs, principle of sinker would apply and other plaintiff would also suffer entailing dismissal of their suit, on account of joining alongwith them a stranger to the cause-Court having given finding in present case that all the four plaintiffs had proved their right of pre-emption and such finding having not been challenged such finding had attained finality-Principle of sinker would not apply even if two plaintiffs had given up their claim of pre-emption in favour of other plaintiffs. 2004 Lawvision 8 = PL J 2004 Lahore 211
Whether suit land is exempt from pre-emption–Question of–Notification issued U/S 3 of Government Tenants (Punjab) Act 1893 was applied to Chak No. 4 where suit land is situated–Subsequent acquisition of proprietary rights did not exclude application of Colonization of Government Lands Act, 1912 and notification under Section 8(2) of Act 1913 unless application of 1912 Act was specially excluded under Section 5 thereof–Held: At time of sale of suit land, Colonization of Government Lands Act was applicable and by virtue of Notification, its sale was exempt from pre-emption. PLJ 1994 Lahore 439 PLD 1961(W.P.) Baghdad-ul-Jadid 96 rel.

Court Decisions
Partial pre-emption. Each of pre-emptor has specifically mentioned his share in title of plaint and each of them is bound by same without taking any exception thereto on any flimsy ground and excuse. Due to eclipse of Ghulam Haider pre-emptor from list of pre-emptors, proviso to section 10 of Act, 1991 shall play legal role. Remaining pre-emptors did not claim initially whole of property for possession by pre-emption. Petitioners have rightly been non-suited by both lower courts. P.L.J.1996 Lah. 1005 = PLD 1996 Lah. 459.
Each of pre-emptor has specifically mentioned his share in title of plaint and each of them is bound by same without taking any exception thereto on any flimsy ground and excuse–Due to eclipse of Ghulam Haider pre-emptor from list of pre-emptors, proviso to section 10 of Act, 1991 shall play legal role–Remaining pre-emptors did not claim initially whole of property for possession by pre-emption–Held : Petitioners have rightly been non-suited by both lower courts–Petition dismissed in limine. PLJ 1996 Lahore 1005
https://www.lawandlawyers.com.pk/displaycodes.asp?subcontentID=167 – CONTENTS#CONTENTS

Court Decisions
Right to revoke sale. Contention that there is no particular verse or Hadith that right of revocation of sale cannot extend beyond 3 days as held by Federal Shariat Court. Contention of Asstt. A.G. has force. Since there is no specific prohibition against right of revocation for more than three days and a number of Muslim Jurists have also opined that right of revocation can be extended to one month, Section 12 cannot be struck down on basis of repugnancy.-P.L.J.1994 SC 221 = PLD1994 SC 1. Whether repugnant to Injunctions of Islam–Question of–Some of petitioners have challenged vendor’s right to revoke sale as repugnant to Injunctions of Islam–Held: Section 12 is repugnant to Injunctions of Islam. PLJ 1991 FSC 93
Whether suit could be decreed on basis of compromise between parties–Question of–Admittedly suit was filed on 23.7.1995 and plaintiff was directed to deposit Zar-e-Soyam within 30 days–Zar-e-Soyam was not deposited within 30 days–Prior to 6.12.1995 when defendant/respondent had entered into compromise and alleged statement was recorded neither Zar-e-Soyam had been deposited nor time had been got extended–Held : Even if it is assumed that compromise had been executed between plaintiff/petitioner and defendant/respondent, suit could not be decreed for non deposit of Zar-e-Soyam as required by Section 24 of Punjab Pre-emption Act, 1991–Held further : Impugned Judgments and decrees have been passed in accordance with law–Petition devoid of any force is accordingly dismissed. PLJ 1999 Lahore 1083

Court Decisions
1. Additional evidence
2. Delay in performance of requisite talb
3. Details of the date, time and place
4. Essentials for Talabs
5. Further Sale
6. Knowledge
7. Limitation
8. Nature of transaction
9. Pre-requisite for filing Suit
10. Pre¬requisites for Talabs
11. Principles
12. Procedure
13. Proof.
14. Requirements of law
15. Requirements of S. 13(3), Punjab Pre-emption Act 1991
16. Talab-e-Muwathibat
17. Talabs.
18. Talb-e-Ishad
19. Three Talbs. Whether repugnant to Injunctions of Islam
1. Additional evidence:- Punjab Pre-emption Act. 1991 S. 13. Suit for pre¬emption. Application for additional evidence. Allowed to prove notice of Talb-e-Ishhad but not allowed to produce witnesses. Pre-emptor/petitioner was allowed to prove notice of Talb-e-lshhad and said notice could only be proved by production of attesting witnesses thereof. Order of allowing production of additional evidence could not be frustrated or set at naught by declining request of pre-emptor to produce attesting witnesses in evidence, which tentamounts to giving by one hand and taking by the other. Under S. 13 of Punjab Pre-emption Act. 1991 notice of Talb-e-lshhad is required to be attested by two truthful witnesses. Word ‘proof means and includes proof by production of witnesses so that other party should have opportunity to cross examine such witnesses. Attestation of notice of ‘Talb-e-lshhad’ and proof thereof is not a mere formality but a sine qua non for exercise of very right of pre-emption. Trial Court ought to have exercised its Jurisdiction by allowing petitioner to produce attesting witnesses of notice to do complete Justice. P.L.J.1998 Lah. 307 = 1998 CLC 393 = NLR 1998 Civil 205.
2. Delay in performance of requisite talb–Suit was decreed in favour of plaintiff–Validity—Leave to appeal was granted to consider; whether finding relating to plaintiffs superior right of pre-emption on account of contiguity or share of common appendages was based on complete misreading of evidence; whether lands in dispute purchased by defendant comprised of rectangles 19 and 20 whereas lands owned by respondent formed part of rectangle No. 17 and 18 which according to certified copy of Aks Shajra-Kishtawar were operated vertically and longitudinally by thoroughfare and water course running across over government land but such factual aspect was completely misrepresented before trial court, materially affecting conclusions impugned through present petitions; and whether there was un-explained delay in performance of requisite talabs in view of language of S. 13(3) Punjab Pre-emption Act 1991 and incorporated by Supreme Court in judgments reprinted in 1992 SCMR 1780 and 1992 SCMR 1886. PLJ 1999 SC 2361
3. Details of the date, time and place:– Leave to appeal was granted to consider whether it is mandatory to give in the plaint of the suit for possession by pre-emption, the particulars and details of the date, time and place of making Talb-i-Muwathibat and also disclose names of witnesses in whose presence such talb was made.- Plaintiff could not have been non Suited on the ground that time and place of talb-i-muwathibat and names of witnesses had not been. specifically disclosed in plaint. Plaintiff had in fact, made requisite talbs in terms of S, 13(3) of Punjab Pre-emption Act, 1990. Order of dismissal of plaint for not disclosing date and time of requisite talbs was set aside and suit was decreed on payment of specified amount to be deposited in Court.-P.L.J.2001 SC 72 = 2001 SCMR 539. Pre-emption, Talabs. It is mandatory on part of pre-emptor to mention date of Talb-i-Muwathibat, place of acquiring knowledge of transaction as well as names of witnesses in whose presence said Talb was made as referred by Section 13 of Punjab Pre-emption Act, 1991. Admittedly, provisions of Section 13 of Punjab Pre-emption Act, 1991 have not been complied with by plaintiff/respondent as is evident from contents of plaint. Thus trial Court was Justified in rejecting plaint under Order 7 Rule 11 CPC.. Appellant Court has not exercised Jurisdiction vested in it in accordance with, law while setting aside order of lower Court. Accordingly revision petition is accepted, order of appellate Court dated 2.7.1995 is reversed and that of lower Court is upheld. P.L.J.1999 Lah. 681 = 1999 CLC 120. Plaintiff in her plaint did not disclose time and place of talb-i-Muwathibat nor did she disclose her source of knowledge of sale in question. Perusal of statements of witnesses and assertion in plaint indicated that there were contradictions as to date of alleged knowledge of sale and of alleged making of talb-i-muwathibat. Evidence on record would give impression that plaintiff from day one was aware of sale but she made up story of acquiring of sale-deed on specified date and making of alleged talb-i-muwathibat on that date. Material on record did not indicate that plaintiff made talb-i-muwathibat at the spur of moment and that requirement of Jumping demand was satisfactorily proved. Court below thus, rightly concluded that plaintiff had failed to prove talb-i-muwathihat. Trial Court, however, had not made correct appreciation of evidence regarding question of talb-i-Ishhad in as much as neither any of witnesses nor plaintiff herself claimed that she had made talb-i-Ishhad after making talb-i-muwathibat in presence of witnesses. Plaintiff however, having failed to prove talb-i-muwathibat would be deemed to have extinguished right of pre-emption, therefore, her suit for pre-emption was rightly dismissed by Court below. P.L.J.2000 Lah. 854 = 2000 MLD 1391. Dismissal of suit for pre-emption on the ground of non-proof of talbs by Trial was decreed by Appellate court–Validity–Trial Court while rendering its finding on issue of talbs discussed in detail evidence brought on record–Appellate court, however, did not discuss evidence to see whether talbs-Muwathibat was sufficiently proved or not and without offering any reason or discussion merely stated that talb-e-Muwathibat was proved–Manifestly judgment of Appellate Court suffers from misreading and non-reading of evidence–Appellate Court had failed to exercise Jurisdiction vested in him–Plaintiff admittedly had knowledge of sale prior to the state when he filed suit for pre-emption–Judgment and decree passed by Appellate Court was set aside while that of Trial Court dismissing plaintiff’s suit was restored. 2002 Lawvision 160 = PLJ 2002 Lahore 252
4. Essentials for Talabs. Plaintiff could not be non-suited merely on ground that other details of time and place to Talabs, and names of witnesses etc. had not been specifically mentioned in plaint. If defendants had any difficulty in filing. their written statement, they could apply to Trial Court for further and better particulars. Plaintiff could not be non-suited. P.L.J.2000 SC 595 = 2000 SCMR 329.
5. Further Sale:- Sale of land pre-empted by petitioner on ground of owner in village–Further sale by vendee in favour of respondent in recognition of his superior right of. pre-emption–Challenge to- Postponement of mutation and claim of superior right of pre-emption by petitioner qua respondent–Status–Postponement of sanctioning of mutation would not adversely affect position of respondent, for, sale was complete within meaning of Section 54 of Transfer of Property Act—Since sale in favour of respondent in recognition of his superior right of pre emption had taken place within one year from date of original sale, petitioner could not claim any superior right of pre-emption against him, as he had also become owner in village–Held: Learned Judge in chamber had rightly non-suited petitioner and restored judgment and decree passed by Civil Judge in favour of respondent–Petition without merit is accordingly dismissed. PLJ 1999 SC 218
6. Knowledge:– Notwithstanding failure of appellant to name those two persons who had been sent to house of respondent, appellant in his statement in trial Court has not specifically stated as to when he got knowledge of sale transaction in dispute and where had he made such a declaration. Element of making of a demand in form of declaration within contemplation of Section 13 (2) of Act in ‘Majlis’ wherein he got knowledge of sale in dispute, is lacking. P.L.J.1996 SC 245 = 1996 SCMR 294.
7. Limitation—Knowledge of attestation of mutation—onus to prove—Scope—Where mutation in question had found its way in the Revenue Record, the burden of proof that the persons affected by it were unaware either of the attestation of mutation or of subsequent entries in the Revenue Record would heavily lie on the party asserting such facts. 2004 C L C 240
8. Nature of transaction: — Any defence in matter revolving around factual aspects has to be independently proved. Mere narration of same in statement of witness even though not, cross-examined on point would not establish same. In written statement it mentioned that suit for possession through pre-emption instituted by petitioner is benami and it, is not contended therein that suit was being financed by K and M and that also for their own interest and benefit. Case law relied on by both lower courts is not attracted to facts of the matter which is defence of specific factual nature and is to be established by production of evidence, oral or documentary according to discretion and requirement of respondents who have failed thereof. P.L.J.1998 Lah. 746 = 1998 MLD 2068. Very fact that contesting defendants/plaintiffs were not at all willing to resolve their dispute on special oath, leads to genuine inference that they were perhaps not themselves sure with regard to correct nature of transaction and they were not truthful in their claim that it was transaction of exchange. Even otherwise evidence on record, considered minutely, leads to one. and only irresistible conclusion that transaction was that of sale. Contention of learned counsel for petitioners that it is not at all open to court to look into nature of transaction or to hold that transaction which was ostensibly of exchange was in fact that Of sale in nature does not carry weight. Court cannot be said to be precluded for looking into nature of transaction. Petition without merit is accordingly dismissed. P.L.J.1998 Lah. 187 = PLD 1998 Lah. 228.
9. Pre-requisite for filing Suit. Pre-requisite for filing suit for possession through pre-emption in compliance of provisions of Section 13(3) Punjab Pre-emption Act 1991, whereby notice of talb-i-Ishhad has to be served upon other party within 15 days from date of knowledge. P.L.J.1999 Lah. 773.
10. Pre¬requisites for Talabs. Record showed that copies of notices were marked but not exhibited. No objection had been raised by production of copies of such notices by defendants. Trial Court relied upon said notices in its Judgment and defendants in memo of their appeal before Appellate Court neither took the ground about admissibility of copies of such notices or plea that they had not received such notices. Appellate Court, however, allowed additional evidence regarding acknowledgment receipts showing service of notices upon defendants. No plea with regard to non-receipt of notices by defendants was taken before Appellate Court. Plaint also showed that Talabs had been duly made. High Court, erred in holding that plaintiff had been wrongly allowed to produce evidence. P.L.J.2000 SC 595 = 2000 SCMR 329. Concurrent findings by Trial Court and Appellate Court regarding Talabs having been made and notices under Section 13(3) being served upon. No case of misrepresentation was made out. No material irregularity in Judgments of Courts below. Such findings of facts were not liable to interference in revisional Jurisdiction by High Court. P.L.J.2000 SC 595 = 2000 SCMR 329.
11. Principles.:–Sending notice of Talb-i-Ishhad under registered cover acknowledgment due as prescribed in S. 13(3) of Punjab Pre-emption Act, 1991—Object and proof of—Ordinary registered mail letter without an A.D., hypothetically, but not essentially, can at maximum be stretched to equate with refusal of vendee to receive registered mail letter—Purpose of prescribed mode of mail is to create a reliable evidence of sending notice, its receipt or deliberate refusal by vendee—Registered mail letter alongwith acknowledgment due, if sent back to pre-emptor, then he in order to prove its transmission would have to tender in evidence refused envelope etc., and relevant record of the post office—Object of law would be taken to have been materially and substantially fulfilled, where through evidence of witnesses and post office record, pre-emptor had successfully proved receipt of registered mail letter by vendee—PLD 2004 Lah. 125
12. Procedure—Requirement of Talb-i-Muwathibat is satisfied if the declaration is made by pre-emptor immediately on coming to know about the sale—After making Talb-i-Muwathibat, if notice of Talb-e-Ishhad is given within the time prescribed therein, the requirement of talb-e-Ishhad, is fulfilled. 2004 S C M R 409
13. Proof. Sale in dispute was made through registered sale-deed which was executed on 12.11.1992 and was attested before Registrar on 14.11.1992. Registration of sale-deed is notice to public-at-large and as such, it would impart knowledge to all intending pre-emptors. Hallow-ness of Pre-emptors plea that he came to know about sale on 14.12.1992, stands exposed through notice served by him on 19.12.1992 showing that sale-deed was executed on 12,11.1992 and was registered on 14.11.1992. If it is so, then it is clear enough to say that Talb-i-Muwathibat made on 14.12.1992 or 15.12.1992 was not in accordance with provisions of law as it was belated by about month, whereas, law requires that it shall be made immediately on hearing about sale of land. Both courts below had rightly held that demands in question were not served in accordance with law. Impugned Judgments do not suffer from any illegality, latent or .patent, so as to call for interference on revisional Jurisdiction of High Court. P.L.J.1998 Lah. 887 = 1998 MLD 1077. Assertions in plaint indicated that plaintiff had come to know of sale about 11 days before suit was filed. Suit was filed on 21.10.1990, while as per assertion made in plaint, plaintiff had come to know of sale on 10.10.1990. Specified para of plaint stated that plaintiff had proclaimed his intention to pre-empt sale in question, in Majlis on 14.10.1990. Provision of S. 13 Punjab Pre-emption Act, 1990 requires that first talb i.e., talb-i-muwathibat has to be made immediately on gaining knowledge of sale. As per plaintiffs own assertion there was delay of 4 days in making talb-i-¬muwathibat which is fatal to case of petitioner. Plaintiff, while appearing as his own witness had stated that he was informed by specified persons that his brother had sold land in question and that he went to defendants and asked him to transfer, that land to him. Plaintiff on gaining knowledge of sale had not immediately at that time declared that he intended to pre-empt sale in question, but instead he went to defendant and demanded return of property. Failure to assert his right of pre-emption at the time he gained knowledge from witnesses, clearly resulted in extinguishment of right of pre-emption vesting in petitioner. No interference was, thus, warranted in impugned order of dismissal of suit. P.L.J. 2000 Lah. 1101 = 2000 CLC 1067. Concurrent findings of two Courts below. Interference by High Court under S. 115, C.P.C. Conditions. None of following legal or other infirmities in concurrent findings of two Courts below in favour of plaintiff in a pre-emption suit were noted or pointed out in impugned Judgment: (i) The lower Courts exercised Jurisdiction not vested in them; (ii) The lower Courts failed to exercise any Jurisdiction vested in them; (iii) They acted in exercise of their Jurisdiction illegally or with material irregularity; (iv) Misreading or non-reading of material evidence on record which had a direct bearing on the issues involved; (v) Findings were perverse; (vi) Findings could not be reached on the evidence on record; In circumstances, High Court erred in interfering in revisional Jurisdiction with concurrent Judgments of two Courts below. P.L.J. 2000 SC 611 = 2000 SCMR 314.
14. Requirements of law. According to learned counsel, witnesses to Talb-i-Muwathbat and Talb-i-Ishhad are unanimous that pre-emptor had come to know of factum of sale on 3.6.1991 and that he had immediately expressed his intention to exercise right of pre-emption. Learned counsel further submitted that if notice of Talb-in-Ishhad was sent through counsel it had certainly taken 2 or even 3 days to comply with requirements of Talb-i-Ishhad. Learned Counsel then referred to interpretation of expression “as soon as possible” in Black’s Dictionary. According to this expression it means that action had to be taken within reasonable time. According to learned Counsel, 2 to 3 days after making Talb-i-Muwathibat was reasonable time within which Talb-i-Ishhad has been made and that too through counsel.. Talib-i-Ishhad made within 2/3 days is sufficient compliance of Section 13(3) of Act and satisfies expression ‘as soon thereafter as possible’ occurring in Section 13(3) of the Act. P.L.J.1998 SC 1751 = 1998 SCMR 2396. Statement of plaintiff on oath coupled with written notice sent to appellant within ten days of talb-i-Muwafchibat, substantially complied legal requirement of S. 13(3) Punjab Pre-emption Act 1991. P.L.J.1999 SC 2361 = 1999SCMR 724. Plaint does not indicate or at least claim, making of Talb-e-Muwathibat by plaintiffs nor date of acquiring knowledge or name of informer has been given. Notice of Talb-e-Ishhad, which was required to be given within 14 days from date of Talb-e-Muwathibat is actually claimed to have been sent after 18 days and in this way same could not be proved. Argument, that Talb-e-Ishhad was otherwise proved and, therefore, violation of statutory rule should not non-Suit petitioners, is without substance, inasmuch as, Talb-e-Ishhad, otherwise could not be proved, as statements made by witnesses have been found to be self contradictory and unworthy of reliance. Evidence led by petitioners, in matter of two talks was self contradictory and Talb-e-Muwathibat and Talb-e-Ishhad could not be proved in accordance with injunctions of Islam and also petitioners though required to make declaration of right and intention to enforce same immediately on acquisition of knowledge of sale, failed to do same and in evidence and pleading, making of Talb-e-Muwathibat by plaintiffs was missing while alleged informer who was claimed to be only witness of Talb-e-Muwathibat, by one of plaintiffs, was not produced. Petitioners had failed to prove that they had made Talb-e-Muwathibat and Talb-e-Ishhad. Findings recorded by two courts below do not suffer from any misreading of record or legal infirmity. P.L.J.1998 Lah. 895 = 1998 CLC 1190 = NLR 1998 Civil 445. Suit was decreed in favour of plaintiff. Validity.. Leave to appeal was granted to consider; whether finding relating to plaintiffs superior right of pre-emption on account of contiguity or share of common appendages was based on complete misreading of evidence; whether lands in dispute purchased by defendant comprised of rectangles 19 and 20 whereas lands owned by respondent formed part of rectangle No, 17 and 18 which according to certified copy of Aks S/iq/m-Kishtawar were operated vertically and longitudinally by thoroughfare and water course running across over government land but such factual aspect was completely misrepresented before trial court, materially affecting conclusions impugned through present petitions; and whether there was un-explained delay in performance of requisite talabs in view of language of S. 13(3) Punjab Pre-emption Act 1991 and incorporated by S.C. in Judgments reprinted in 1992 SCMR 1780 and 1992 SCMR 1886. P.L.J.1999 SC 2361 = 1999 SCMR 724. There was no plea in pleadings that there is lack of post office facility in area. This being position, Talb-i-Ishhad could be made by pre-emptor within period of two weeks after making Talb-i-Muwathibat sending notice in writing attested by two truthful witnesses under registered .cover acknowledgment due to vendee, confirming his (pre-emptor’s) intention to exercise right of pre-emption. Thus there is no provision to deliver copy of notice about Talb-i-Ishhad by hand to vendee. Pre-emptor has to establish making of demand of Talb-i-Ishhad u/S. 13 of Punjab Pre-emption Act, 1991 and not in manner averred by petitioner-defendant-vendee. Impugned Judgments passed by both lower courts need not be interfered with. No legal right of petitioner/vendee stands infringed. Petition dismissed in limine. P.L.J.1998 Lah. 766 = 1998 CLC 1520.
15. Requirements of S. 13(3), Punjab Pre-emption Act 1991. whether complied with by plaintiff–Statement of plaintiff on oath coupled with written notice sent to appellant within ten days of talb-i-Muwathibat, substantially complied legal requirement of S. 13(3) Punjab Pre-emption Act 1991–Judgment of High Court, thus did not warrant interference. PLJ 1999 SC 2361
16. Talab-e-Muwathibat :– Tdlab-e-Muwathibat mean immediate demand by pre-emptor in sitting of meeting in which he has come to know of sale, declaring his intention to exercise right of pre-emption. According to statement of plaintiff himself there was delay at least of one day in making Talab-e-Muwathibat, which should have to be made before dispersal of Majlis. Judgment and decree of trial Court unexceptionable. P.L.J. 2000 Lah. 312. Talab-i-Muwathbat”. Challenge to in Federal Shariat Court on point that it is opposed to Injunctions of Islam. Principle of supporting sight of purchaser by limiting right of pre-emptor through ‘Talab-i-Muwathbat’ has been an agreed principle among Jurists. Right of pre¬emption should be demanded immediately. If pre-emptor does not express his intention to exercise his right within setting in which he comes to know about deal, he loose his right for good. Maximum period allowed by ‘Honbali’ Jurists even in cases of real and genuine excuses does not exceed a few moments. Ibn-i-Qudama, says that if a person is informed about sale of property and he simply confirms news but does not expressly demands his right to pre¬emption, his sight immediately abates. If right of pre-emptor is left open ended, it will be violative of rights, of purchaser. Principle of taldb-i-muwathbat is not opposed to Injunctions of Islam. P.L.J.1999 SC 1548 = 1999 SCMR 2713. Such right cannot be exercised unless and until the pre-emptor has performed the ceremony of Talb-e-Muwathibat immediately on hearing the sale—Even a short delay cannot be excused. 2004 C L C 240 Plaintiff could not prove that he had made Talb-i-Muwathhat–Trial Court dismissed plaintiff’s suit on this count–Order of dismissal of suit was maintained by appellate Court–Validity–Mutation was sanctioned on 9.1.1992–According to PW-3, real brother of pre-emptor, he intimated pre-emptor during month of February, 1992 while according to statement of pre-emptor, he came to know about sale during month of March, 1992–This contradiction is enough to establish that Talb-i-Muwathbat was not effected–Through use of weapon of cross-examination, respondent-vendee has succeeded in bringing said assertion of pre-emptor about Talb-i-Muwathbat to lame conclusion–Held: Impugned judgments and decrees of lower courts are unexceptionable and no irregularity has been found therein—Revision Petition has no merit which is also barred by time and is accordingly dismissed. PLJ 1997 Lahore 1550 Talb-i-Muwathibat made by Muhammad Ramzan husband of Mst. Salma and “Behnoi” of Mst. Naziran has no legal force–When Talb-i-Muwathibat was made he was not special Attorney of both pre-emtpors–There is no provision in law that a husband or a Behnoi on behalf of female petitioner pre-emptor, is entitled to make Talb-i-Muwathibat–In eyes of law person includes a male and a female–No distinction has been made between male and female in matter of exercise of right of pre-emption starting from Talb-i-Muwathibat to Talb-i-Khushmat–Women in country are demanding equal rights or merits and no exception can be granted/allowed towards enforcement of any statutory/legal right–Held: Talb-i-Muwathibat has not been established so there was no question to further look into Talb-i-Ishhad–Held further Superior pre-emption right of petitioners stood extinguished due to lethargy on their part–Revision Petition dismissed. PLJ 1996 Lahore 66
17. Talabs. Suit for possession through pre-emption on ground of being co-Sharers in khata and water-course, and alleged making of talab-i-ishhad. Civil Judge dismissed suit on ground for non-fulfillment of talabs U/S- 13(3) of Punjab Pre-emption Act, 1991. Appeal to ADJ also met same fate. Revision U/S. 115 of CPC 1908. Dismissed for no mention of Talab-i-Muwathibat in pleadings.-P.L.J.2000 Lah. 1458.Trial Court while rendering its finding on issue of talbs discussed in detail evidence brought on record–Appellate court, however, did not discuss evidence to see whether talbs-Muwathibat was sufficiently proved or not and without offering any reason or discussion merely stated that talb-e-Muwathibat was proved–Manifestly Judgment of Appellate Court suffers from misreading and non-reading of evidence–Appellate Court had failed to exercise Jurisdiction vested in him–Plaintiff admittedly had knowledge of sale prior to the state when he filed suit for pre-emption–Judgment and decree passed by Appellate Court was set aside while that of Trial Court dismissing plaintiff’s suit was restored. P.L.J. 2002 Lah.252
18. Talb-e-Ishad:- Whether notice of talb-e,Ishad issued u/S. 13(3) of Punjab Pre-emption Act, 1991 was attested by two truthful witness? If not its legal effect–Service of registered notice by appellant containing names of two truthful witnesses before whom talb-i-Ishhad was allegedly made amounted to substantial compliance of provisions of Section 13(3) of Act and therefore, he could not be non-suited on the round that notice served on respondent containing Talb-i-Ishad was not attested by two truthful witnesses whose names were disclosed in notice- Case remanded to trial Court for decision in accordance with law. PLJ 1999 SC 818 Talb-i-Mowalhibat in pre-emption suit–Challenge to–Talab-e-Mawasibat was made by general attorney of petitioner, althoagh this authority did not vest in him at the relevant time. PLJ 1997 Lahore 261 Whether notice of talb-e-Ishad issued u/S. 13(3) of Punjab Pre-emption Act, 1991 was attested by two truthful witness? If not its legal effect. Service of registered notice by appellant containing names of two truthful witnesses before whom talb-i-Ishhad was allegedly made amounted to substantial compliance of provisions of Section 13(3) of Act and therefore, he could not be non-suited on the ground that notice served on respondent containing Talb-i-Ishad was not attested by two truthful witnesses whose names were disclosed in notice. Case remanded to trial Court for decision in accordance with law. P.L.J.1999 SC 818 = 1999 SCMR 717. Defendant in his written statement had accepted and acknowledged receipt of notice. Such document having been produced by defendant’s side, itself, would indicate that talb-i-ishhad had been made in accordance with law. P.L.J. 2000 Lah. 1468. Notice of Talb-i-Ishhad not proved to have been sent—Effect—provision of S. 13(3) of Punjab pre-emption Act 1991 being mandatory in nature, performance of talb-i-Ishhad was considered to be one of the most important conditions for enforcing right of pre-emption and if notice had not been sent as per requirement of law conclusion would be that talb-i-Ishhad had not been made, as a result whereof right of pre-emption would be deemed to have extinguished. PLJ 2004 Lah. 319 Notice of Talb-i-Ishhad sent through ordinary registered post without acknowledgment due—Vendee denied to have received such notice—Pre-emptor produced in evidence witnesses, post office record and photo copy of such notice—Trial Court dismissed suit, but Appellate Court decreed the same—Validity—Requirement of sending notice of Talb-i-Ishhad in terms of S. 13(3) of Punjab Pre-emption Act, 1991 had technically not been complied with—Non-compliance with such technicality had been met by pre-emptor by producing witnesses and record of post office—Pre-emptor had successfully proved receipt of registered envelope by vendee—Object of law had, thus, materially and substantially been fulfilled—Vested right of pre-emptor, in such circumstances could not be abridged or allowed to be defeated on mere absence of acknowledgement due with registered mail letter—Appellate court after concluding that registered mail containing notice of Talb-i-Ishhad had been duly delivered mail containing notice of Talb-i-Ishhad had been duly delivered to vendee, was justified in presuming that original notice was in the envelope delivered to him—Vendee had not pleaded that registered mail envelope received by him did not contain any original notice of Talb-i-ishhed or was empty—Contention of non-production of original notice or its secondary evidence by pre-emptor could not reinforce case of vendee—Impugned judgment on such question met the requirements of justice and spirit of law—High court dismissed revision petition. PLD 2004 Lah. 125 Plaintiffs failure to refer to Talb-i-Mowathibat while invoking second nib i.e. Talb-e-Ishhad–Held: Non-reference to the same was fatal to the claim of pre-emption. PLJ 1997 Lahore 261 On question of fact of making two Talabs concurrent findings of two Courts below passed in favour of plaintiff on evidence adduced before trial Court were not liable to interference in revisional Jurisdiction by High Court. Concurrent findings of two Courts below were not set aside on account of any patent illegality or perversity. No misreading or non-reading of evidence was pointed out except a passing reference to evidence. High Court set aside concurrent findings on ground that date, time and place, about sale transaction, were not specifically pleaded in plaint. On such ground plaintiff could not be non-suited. On merits also no illegality or material irregularity in concurrent Judgments of two Courts below had been pointed out by High Court. P.L.J. 2000 SC 611 = 2000 SCMR 314. Whether notice of talb-e,Ishad issued u/S. 13(3) of Punjab Pre-emption Act, 1991 was attested b two truthful witness? If not its legal effect–Service of registered notice by appellant containing names of two truthful witnesses before whom talb-i-Ishhad was allegedly made amounted to substantial compliance of provisions of Section 13(3) of Act and therefore, he could not be non-suited on the round that notice served on respondent containing Talb-i-Ishad was not attested by two truthful witnesses whose names were disclosed in notice- Case remanded to trial Court for decision in accordance with law. PLJ 1999 SC 818 three Talbs has thoroughly been discussed in Said Kamal’s case wherein it was held on authority of a number of traditions that right of pre-emption is subject to these three Talbs–Jurisdiction cannot be exercised where a particular law or a provision of law is repugnant to any of different views taken by different Muslim Jurists–It is true that notice is not a necessary ingredient of Talb-i-Ishhad, but this is only a procedural matter to facilitate proper process of filing a suit which does not affect basic right of pre-emption–Held: Procedural provisions may vary from time to time according to expediency and in so far as they do not violate any Injunction of Islam, they cannot be held repugnant to Holy Quran and Sunnah. PLJ 1994 SC 221 There was no post office in village, petitioner made Talab-i-Ishhad in presence of two truthful witnesses instead of registered notices–Respondents have placed on record a certificate by Distt. Suptt. Post Offices, Toba Tek Singh which shows that a Branch post office is functioning in Chak No. 178/GB Tehsil Gojra Since 1.7.1927–Disputed land is also in said chak and sale pre-empted by petitioner had taken place in year 1989–Second alternative i.e. making of Talb-i-Ishhad in presence of two truthful witnesses was not available to petitioner and even if he had made Talb-i-Ishhad accordingly, it was of no avail–Law is well settled on point that Talab is sine-qua-non for successfully pre-empting–Held: Petitioner failed to make Talabs, he was rightly non-suited. PLJ 1996 SC 324 Punjab Pre-emption Act, 1991 confers right of pre-emption on (a) Shafi Sharik, (b) Shafi Khalit and (c) Shafi Jar in according with section 6, which further provides that “right of pre-emption shall be exercisable only in case of `Zaroorat’ or to avoid `Zarar’–plaintiff had not pleaded that conditions laid down in section 6 and 13 were fulfilled by him–Since none of conditions conferring right of pre-emption on petitioner, or right of file suit or that requisite `Talab’ were made, were even averred in plaint, suit of petitioner was rightly dismissed. PLJ 1996 Lahore 804 Petitioners have challenged that to prescribe a maximum period of two weeks for making Talbi-Ishhad and for failure to do so, right of pre-emption to be extinguished, is repugnant to Injunctions of Islam–Held: Fixation of time limit of two weeks cannot be stated to be repugnant to Injunctions of Islam–Held further: In sub-section (3) of Section 13 of Act, phrase “subject to his ability to do so” be added. PLJ 1991 FSC 93
19. Three Talbs. Whether repugnant to Injunctions of Islam. Question of three Talbs has thoroughly been discussed in .Said Kamal’s case wherein it was held on authority of a number of traditions that right of pre-emption is subject to these three Talbs. Jurisdiction cannot be exercised where a particular law or a provision of law is repugnant to any of different views taken by different Muslim Jurists. It is true that notice is not a necessary ingredient of Talb-i-Ishhad, but this is only a procedural matter to facilitate proper process of filing a suit which does not affect basic right of pre¬emption. Procedural provisions may vary from time to time according to expediency and in so far as they do not violate any Injunctions of Islam, they cannot be held repugnant to Holy Quran and Sunnah. P.L.J.1994 SC 221 + PLD1994SC1.

Court Decisions
Waiver of the right of pre-emption : — Pre-emptor claimed to be a collateral of vendors, whereas vendees pleaded to be tenant in suit land—Trial Court decreed the suit, while appellate Court partly accepted appeals of vendees founding that pre-emptor had no right of pre-emption to the extent of one vendor being his collateral and excluded her share—Contention of one of the vendee was that his share was specified in sale-deed and he having been proved to be a non-occupancy tenant in suit land, was entitled to retain land to the extent of his share—Validity—Plea had not been taken that sale was divisible and that vendees had contributed the price in accordance with their respective shares—Vendees could not take such a plea in their written statement for having pleaded that all of them were tenants in suit sale price in lump sum from vendees at the time fo registration—Vendee/appellant while appearing as witness stated that sale took place for Rs. 35, 000 and his share was 3/4th and he paid amount separately in such proportion—Such fact had not been stated in sale-deed—other witness after making statement similar to that of appellant/vendee had admitted that such fact was neither noted in registered sale-deed not his presence was recorded therein—Nothing turned in favour of vendees on the basis of sale-deed—Another witness could not explain as to how the amount was contributed and when and how same was separately paid—courts below had rightly found that sale was not divisible—Appellant/vendee could not be allowed to retain land purchased by him on the ground that he being a non-occupancy tenant therein had joined strangers with him- High court dismissed the appeal in circumstances. PLD 2003 Lah. 245
Plea of waiver-Proof :–Defendant had not produced evidence in order to substantiate plea of waiver – Defendant neither in his own statement nor in his evidence brought on record, a single word that suit for pre-emption was instituted by plaintiff for the benefit of vendor (father of pre-emptor) – Material on record showed that plaintiff and vendor lived separately-, that plaintiff was major and was looking after his interest independently – First Appellate Court was thus, correct in holding that circumstance of securing certified copies from Revenue Authorities by vendor and placing the same on record by plaintiff would not be deemed to establish that suit had been filed for the benefit of the vendor – Finding of First Appellate Court was maintained in circumstances. P L D 1993 Lah. 168 Ex parte decree passed in favour of a pre-emptor before target date (31.7.1986) as fixed in P.L.J.1986 SC 576, was protected notwithstanding fact that same was an ex parte decree which was set aside later. Pre-emptor was not debarred to have case adjudicated in accordance with law applicable before date fixed by S.C.in above referred case. P.L.J. 2000 SC 94. Whether land was no longer agricultural and not amenable to pre¬emption. It is difficult to accept arguments on behalf of appellant that the moment vicinity assumes urban colour agricultural land becomes, urban immovable property, became it is not only against plain wording of definition of .land, but also against spirit of law. It ignores basic fact that agricultural land could be very well situated in town. Agricultural land so long as it is occupied for agricultural or allied purposes, retained its status as agricultural land for purpose of Punjab Pre-emption Act irrespective of its location, therefore its inclusion in municipal limits if of no significance. It is matter of common knowledge that land alongwith Highways is acquired for industry, residential and commercial buildings, but adjoining lands in its rare remain under plough. Therefore, construction of some factories, houses, shops -etc, would not automatically convert agricultural land into urban immovable property. Colour of locality would be relevant to determine nature of land and not otherwise. P.L.J.1996 Lah. 584 = 1996 CLC 1410.
Pre-emptor’s superior right on basis of collateralship–Requirement of Qanun-e-Shahadit Order is that when Court has to form an opinion as to relationship of one person to another, opinion expressed by conduct, as to member of family or otherwise, having special means of knowledge on subject, is a relevant fact–In fact it is opinion expressed by conduct, of any person who has special means of knowledge about relationship, which has been declared to be relevant–Proposition is settled that evidence of relationship would only be admissible if foundation of such evidence has been laid by parties who calls for its admission. PLJ 1999 SC 2324
Suit for pre-emption decreed on special oath by trial Court–Appeal dismissed by Addl. District Judge–Setting aside decree on ground of principle of partial pre-emption and failure to deposit zar-e-panjum in time–Prayer for–Parties of their own free will and consent adopted mode of decision of suit on basis of oath–First step in this direction was taken on 10.6.1969 and suit was adjourned to 25.6.1969 for recording of respective oath–No step was taken by appellant-defendant during all this time if he had to resile from this method of decision by Court–Instead be appeared and made oath on Holy Qur’an on 25.6.1969 as result whereof suit was decreed by trial Court–Question now being raised by appellant-defendant that suit was hit by principle of partial pre-emption or that zar-e-panjum was not deposited in time has no relevance at all in view of his own consenting arrangement for decision of suit on basis of oath–Held: He is estopped by his own conduct and cannot be permitted to resile on any ground in law or in equity–Appeal has no merit and is dismissed accordingly. PLJ 1999 Lahore 1101
–Civil Procedure Code, (V of 1908), S. 115–Suit for pre-emption on ground of collateral of vendor, co-sharer in khata and owner of land in village estate, decreed by trial Court–Set aside in appeal on plea of estopple incorrect valuation and no claim of petitioner/respondent on Evidence is indicative of fact that respondent do not claim that any offer was made to pre-emptor after definite bargain between vendor and vendee nor it could be proved that land was offered at definite price to pre-emptor–Pre-emptor could not be expected to act in air, in absence of any definite bargain or in absence of any definite price–Ingredients of estoppel/waiver, being missing learned Civil Judge rightly decreed suit–Held: Learned Addl. District Judge completely ignored evidence and also law, applicable on subject and finding recorded in appeal, suffers from perversity of reasoning, misreading and non-reading of evidence and from error of jurisdiction–Petition allowed and judgment of Addl. District Judge set aside. PLJ 1999 Lahore 1290
Superior right of pre-emption was claimed by plaintiff on basis of being co-sharer in Khewat. Khatuni and Khasra number–Entitlement–Documentary evidence brought on record showed that two parcels of land i.e. one on the basis of which pre-emptor claimed superior right of pre-emption and other regarding which said right of pre-emption was asserted fell in two different Khata numbers as also in different Khatuni numbers–Even Khasra numbers of such parcels of land were different–Plaintiff was, thus, neither co-owner nor co-sharer of parcel of land sought to be pre-empted by him–Land in question, being evacuee agricultural land, principle of holding of share in overall Khasra and that of Khata was not applicable for allotment was made in regard to specific property distinct in nature and independent of any other part of original Khasra–There being no community of interest or that of title , plaintiff could not validly maintain that he was either co-sharer or co-owner–Findings recorded by two Courts below decreeing plaintiffs suit were in complete oblivion of law applicable in particular facts and circumstances of case, therefore, not sustainable–Plaintiffs suit dismissed. PLJ 1997 Lahore 1576

Court Decisions
Death of pre-emptor–Survival of right of pre-emption–Whether repugnant to Injunctions of Islam–Question of–Hanafi school of fiqh considers right of pre-emption to be personal right of pre-emptor which becomes extinct on his death unless it is confirmed by a decree of court–According to other schools, this right relates to property–Held: Provision of Section 16 of Act is not repugnant to Injunctions of Islam. PLJ 1991 FSC 93

Court Decisions
Equal rights of pre-emptor and vendee–Sharing of property equally by them–Whether repugnant to Injunctions of Islam–Question of–There is no explicit verse of Holy Quran or Sunnah of Holy Prophet (peace be upon him)to support proposition that law as framed under Section 20 is repugnant to Injunctions of Islam–Held: Provision of Section 20 of Act is not repugnant to Injunctions of Islam. PLJ 1991 FSC 93

Court Decisions
Improvements by vendee:- Whether provision is repugnant to Injunctions of Islam–Question of–This section makes it specific that in case of improvements made by vendee before pre-emptor’s making Talb-i-Ishhad, pre-emptor will be bound to pay for improvements while taking property by virtue of his right of pre-emption–Held: It cannot be said that this provision is repugnant to any verse of Holy Quran or Sunnah of Holy Prophet (peace be upon him). PLJ 1991 FSC 93
Plaintiff making application for supply of relevant statement of net profits on day he filed suit with understanding therein that as and where proper court-fees is determined plaintiff would pay same ; together with his application on receipt of said statement, for submission of proper court-fees worked out on basis thereof-Challan for purchase of court-fee stamps submitted with such application was for proper – court-fees and accordingly amount was deposited-Held, it was an amply fit case for allowing request of plaintiff made (amongst other provisions) under S. 1.49, C. P. C.-Failure to exercise discretion in favour of plaintiff in such case was on account of misunderstanding of legal question of limitation and liable to be corrected by High Court-High Court having not corrected question of limitation, S.C. allowed appeal, set aside Judgment and decree and allowed application of plaintiff seeking permission to pay court-fees and simultaneously producing challans of deposit of court fees with necessary consequences that suit as instituted would in law be deemed to have been filed with proper fee-Case and record remitted to trial Court for determination on merits. P L D 1984 S.C.157
Relevant net profits of land wrongly assessed or not assessed at all, or if assessed statement not made available to plaintiff within period of limitation or even if plaintiff obtained statement same appeared to be tainted with overwriting or forgery and plaintiff not taking any risk and not filing-Held, law of limitation or for that matter pre-emption, did not in any way provide that if and when plaintiff files a suit without statement of net profits, same shall be deemed that plaintiff acted illegally or dishonestly. P L D 1984 S.C.157
Suit barred by limitation on account of supply of deficit court-fee-Plaintiff not required to obtain statement of net profits before filing suit for pre-emption -Failure of plaintiff to obtain statement of net profits will operate against him when considering question of entertaining court-fee, if same was supplied after institution of suit on, (or even without) objection from defendant or Court-Right of pre-emption established-Court cannot refuse such right in exercise of discretion-Plaintiff cannot be deprived of his right for mere lapse of time unless there had been abandonment, acquiescence or waiver or at least, an alteration in position of defendant in that other party has been put in a situation in which it would not be reasonable to place him, if remedy were afterwards to be asserted-Mere fact that plaintiff waited till last day of limitation would not disentitle him to any relief, discretionary or otherwise simply because plaintiff availed of full period of limitation. P L D 1984 S.C.157 Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 S C 821; Ghulam Nabi and others v. Seth Muhammad Yaqub and others P L D 1983 S C 344 and Fateh Muhammad v. Abdul Ghani and another P L D 1981 S C 371 ref.

Court Decisions
Improvement in status:- Vendee of pre-empted sale continues to be vendee-defendant even if he transfers pre-empted property to some other person before or after filing of suit– Respondents 1 and 2 continued to be vendee-defendants within meaning of Section 21-A of Act and continued to avail of statutory right to protect their title to land obtained under sale by improving their status despite transfer of land to respondent No.6 through exchange– Held: Gift in favour of vendees stood unchallenged and as vendees had improved their status before institution of suit and their right of pre-emption had become at par with that of pre-emptor, they could resist pre-emptor’s claim. PLJ 1993 SC 181 Improvement in status of vendee defendant. No effect on right of pre-emption. Whether repugnant to Injunctions of Islam. Contention that no verse of Holy Quran or any Hadith has been cited to show that Section 22 is repugnant to Injunctions of Islam. Contention is correct. Federal Shariat Court has placed reliance on Section 21-A of Punjab Pre-emption Act, 1913. Legislature has intentionally omitted phrase “otherwise than through inheritance” and Shariat Court has found this omission as against Injunctions of Islam on ground that improvement taking place on account of a natural factor, such as inheritance, should have not been disregarded. Muslim Jurists are of opinion that any improvement is status of vendee after institution of suit, does not defeat right of pre-emptor, whether it be by an intentional act of vendee or takes place according to some natural event like succession. Section 22 is not repugnant to Injunctions of Islam. P.L.J.1994 SC 221 = PLD1994SC 1. Improvement in status of vendee after institution of suit– Whether repugnant to Injunctions of Islam–Question of–It appears that legislature consciously omitted excepting phrase “otherwise than through inheritance or succession” as it appeared in Section 21-A of Act, 1913–Held: An improvement on account of natural phenomena, e.g. inheritance, requires exception and should not have been disregarded which seems to be based on principle of Istihsan–Respondent directed to insert phrase “otherwise than through inheritance” in Section 22 of Act. PLJ 1991 FSC 93

Court Decisions
S. 24(1)(2) Reading of Section 24(1) of Act clearly demonstrates that trial Court itself after filing of suit has to pass an order for deposit of one-third of sale price of property in cash within such period may be fixed by it. However, an embargo/rider has been placed upon its power that said period shall not be more than 30 days of filing of suit. This provision read with Sub-Section (2) of Section 24 of Act is mandatory in nature as non-compliance of order of deposit by pre-emptor is visited with dismissal of suit. P.L.J.2001 SC 1215 = 2001 SCMR 1001.
Extension of time—Trial court granted 30 days’ time for the deposit of Zar-e-Soem at the time of filing of suit—Pre-emptor failed to deposit the same within the due time and Trial court on the application of the pre-emptor extended the time—Appellate court, in exercise of revisional jurisdiction set aside the order passed by the Trial court—Validity— time for deposit of one-third of pre-emption money could not be extended by the court—Restriction was imposed on such power of the court by the legislature—Trial court had wrongly extended time for deposit of one-third pre-emption money and exceeded its jurisdiction—Appellate court had rightly interfered with the order passed by the Trial court which called for no interference. 2004 M L D 417
Deposit of sale price. Whether repugnant to Injunctions of Islam. Legislature, while forming this section, has perhaps taken into consideration long period of litigation which is normally spent before final decision of a pre¬emption suit. Non-depositing of sale price may encourage frivolous suits. Condition of depositing , a certain part of sale price in court at time. of institution of suit, is not repugnant to Injunctions of Islam. P.L.J.1994 SC 221 = PLD1994SC 1.
Deposit sale price :– Legislature has cast a duty upon trial Court to pass an order for deposit of one-third of sale price of property within 30 days from institution of suit. P.L.J.2001 SC 1215 = 2001 SCMR 1001.
Trial Court after filing of suit has to regulate its provision qua deposit of one-third of sale price in accordance with Section 24 of Act. This Section in clear terms has made it responsibility/duty of trial Court to pass an order of deposit. In instant case, trial Court totally failed to comply with mandatory provisions contained in Section 24 of Act. Its order dated 13.1.1992 calling upon respondents/plaintiffs to deposit one-third of sale price by 15.1.1992 was harsh as there was hardly a day for its compliance keeping in view amount to be deposited. This sort of approach by trial Court in inflicting penalty of dismissal of suits upon innocent litigant can never be appreciated. Function of Court is not to simply dispose of matter but is required to do Justice in accordance with provisions of law. S.C. feel sorry in noting that non-action on part of trial Court in this case has caused not only financial loss to parties but has also prolonged their agony spreading over a period of one decade in this uncalled for litigation consuming much of time of Superior Courts. P.L.J.2001 SC 1215 = 2001 SCMR 1001.
Pr-emption–Suit for–Application for depositing Zare-e-Soem was permitted beyond 30 days of filing of suit–Revision against–Acceptance of–Writ against–Under Section 24 of Act, 1991 deposit is mandatory and Court has no power to extend time of deposit beyond 30 days of filing of suit–When suits were put up before Court for first time, Court did not pass order of deposit–No reason has been suggested as to why trial Court failed to make order of deposit–Actual order of deposit was made on 16.9.1996 when parties had left the Court and no notice was issued to plaintiff conveying direction of Court–Actual deposit was made on 23.1.1997 in terms of order dated 22.1.1997 by which order, trial Court allowed application of plaintiff–Petitioner could not be punished for failing to deposit by 26.6.1996 as both parties admit that first order was not conveyed to him–Such omission occurred due to failure of Court to comply with mandate of Section 24(1) of Act, 1991–Case remanded to trial Court–Petition allowed. PLJ 1999 Lahore 992
Order to deposit Zar-e-soem–Plaintiffs plea that value of land as mentioned in mutation being inflated, Trial Court erred in directing plaintiff to deposit zar-e-soem of that amount–Process of approximation to fix probable value of property to be resorted if sale price was not mentioned in sale-deed or in mutation–Court in terms of S. 24(1) of Punjab Pre-emption Act 1991, was obliged to require plaintiff to deposit 1/3rd of sale price of property in cash within 30 days; proviso thereof, however empowers Court to fix probable value when sale price was not mentioned in sale-deed or in mutation or when price so mentioned appeared to be inflated–Official documents such as sale deed or mutation authenticated by public functionaries have presumption of correctness therefore, same could not be disregarded mere by on assertion of non-party to transaction–Order in question, was passed in presence of counsel for plaintiffs also raised no objection before Trial Court that price so mentioned in mutation was inflated–Court in terms of S. 27, Punjab Pre-emption Act 1991, was empowered to determine market value of land in question through detailed enquiry when parties concerned get opportunity to prove their respective pleas–Plaintiff notwithstanding compliance of order under S. 24 of the Act i.e., deposit of zar-e-soem, can prove that market value was different than the one mentioned in sale-deed or mutation–As for deposit of zar-e-soem Court has to resort to sale-deed or mutation when value of land was mentioned therein–Order of trial Court directing plaintiff to deposit zar-e-soem in accordance with price. mentioned in mutation was, thus, in accordance with law, warranting no interference. PLJ 1999 Lahore 1803
Deposit of sale price:- Whether repugnant to Injunctions of Islam–Question of–Legislature, while forming this section, has perhaps taken into consideration long period of litigation which is normally spent before final decision of a pre-emption suit–Non-depositing of sale price may encourage frivolous suits–Held: Condition of depositing a certain part of sale price in court at time of institution of suit, is not repugnant to Injunctions of Islam. PLJ 1994 SC 221 Deposit of sale price of property–Provision of–Whether repugnant to Injunctions of Islam–Question of–Provision of law as enacted by Provincial Assembly, seems to be based on Ijtihad taking into account realities of time and place–Held: There is no repugnancy of this provision to Injunctions of Islam. PLJ 1991 FSC 93 Deposit of Zar-e-Soyam–Plaintiff, failed to deposit same within prescribed period–Dismissal of Pre-emption suit by trial court as well as appellate Court below–Validity–Whether suit could be decreed on basis of compromise between parties–Question of–Admittedly suit was filed on 23.7.1995 and plaintiff was directed to deposit Zar-e-Soyam within 30 days–Zar-e-Soyam was not deposited within 30 days–Prior to 6.12.1995 when defendant/respondent had entered into compromise and alleged statement was recorded neither Zar-e-Soyam had been deposited nor time had been got extended–Held : Even if it is assumed that compromise had been executed between plaintiff/petitioner and defendant/respondent, suit could not be decreed for non deposit of Zar-e-Soyam as required by Section 24 of Punjab Pre-emption Act, 1991–Held further : Impugned Judgments and decrees have been passed in accordance with law–Petition devoid of any force is accordingly dismissed. PLJ 1999 Lahore 1083

Court Decisions
Plaintiffs plea that value of land as mentioned in mutation being inflated, Trial Court erred in directing plaintiff to deposit zar-e-soem of that amount–Process of approximation to fix probable value of property to be resorted if sale price was not mentioned in sale-deed or in mutation–Court in terms of S. 24(1) of Punjab Pre-emption Act 1991, was obliged to require plaintiff to deposit 1/3rd of sale price of property in cash within 30 days; proviso thereof, however empowers Court to fix probable value when sale price was not mentioned in sale-deed or in mutation or when price so mentioned appeared to be inflated–Official documents such as sale deed or mutation authenticated by public functionaries have presumption of correctness therefore, same could not be disregarded mere by on assertion of non-party to transaction–Order in question, was passed in presence of counsel for plaintiffs also raised no objection before Trial Court that price so mentioned in mutation was inflated–Court in terms of S. 27, Punjab Pre-emption Act 1991, was empowered to determine market value of land in question through detailed enquiry when parties concerned get opportunity to prove their respective pleas–Plaintiff notwithstanding compliance of order under S. 24 of the Act i.e., deposit of zar-e-soem, can prove that market value was different than the one mentioned in sale-deed or mutation–As for deposit of zar-e-soem Court has to resort to sale-deed or mutation when value of land was mentioned therein–Order of trial Court directing plaintiff to deposit zar-e-soem in accordance with price. mentioned in mutation was, thus, in accordance with law, warranting no interference. PLJ 1999 Lahore 1803

Court Decisions
Relevant net profits of land wrongly assessed or not assessed at all, or if assessed statement not made available to plaintiff within period of limitation or even if plaintiff obtained statement same appeared to be tainted with overwriting or forgery and plaintiff not taking any risk and not filing-Held, law of limitation or for that matter pre-emption, did not in any way provide that if and when plaintiff files a suit without statement of net profits, same shall be deemed that plaintiff acted illegally or dishonestly. P L D 1984 S.C.157
Plaintiffs plea that value of land as mentioned in mutation being inflated, Trial Court erred in directing plaintiff to deposit zar-e-soem of that amount–Process of approximation to fix probable value of property to be resorted if sale price was not mentioned in sale-deed or in mutation–Court in terms of S. 24(1) of Punjab Pre-emption Act 1991, was obliged to require plaintiff to deposit 1/3rd of sale price of property in cash within 30 days; proviso thereof, however empowers Court to fix probable value when sale price was not mentioned in sale-deed or in mutation or when price so mentioned appeared to be inflated–Official documents such as sale deed or mutation authenticated by public functionaries have presumption of correctness therefore, same could not be disregarded mere by on assertion of non-party to transaction–Order in question, was passed in presence of counsel for plaintiffs also raised no objection before Trial Court that price so mentioned in mutation was inflated–Court in terms of S. 27, Punjab Pre-emption Act 1991, was empowered to determine market value of land in question through detailed enquiry when parties concerned get opportunity to prove their respective pleas–Plaintiff notwithstanding compliance of order under S. 24 of the Act i.e., deposit of zar-e-soem, can prove that market value was different than the one mentioned in sale-deed or mutation–As for deposit of zar-e-soem Court has to resort to sale-deed or mutation when value of land was mentioned therein–Order of trial Court directing plaintiff to deposit zar-e-soem in accordance with price. mentioned in mutation was, thus, in accordance with law, warranting no interference. PLJ 1999 Lahore 1803

Court Decisions
Pre-emptor failing to deposit decretal amount–Rival preemptor’s suit decreed by appellate court but set aside by High Court. Principle that plaintiff must prove a superior right of pre-emption at time of sale and retain it till passing of decree, is subject to provisions of Section 28-A of Punjab Pre-emption Act and Section 29 of NWFP Pre-emption Act—Unless arties have indefeasible right of pre-emption under Pre-emption Law, they cannot claim any benefit from any transaction which in itself is subject to right of pre-emption of others–Held: High Court having ignored important statutory provision of section 28-A of Punjab Pre-emption Act, its judgment is not sustainable and is liable to be set aside–Appeal accepted. PLJ 1992 SC 450 PLJ 1985 SC 380 red.

Court Decisions
1. Application for impleading Respondent No. 3 as party
2. Copy of net profits
3. Dismissal on point of limitation (more than one year)–
4. Exclusion of areas from pre-emption
5. Extension of time
6. limitation
7. Provision of limitation, Whether repugnant to Injunctions of Islam
8. Rejection of plaint
9. Suit barred by limitation on account of supply of deficit court-fee-
1. Application for impleading Respondent No. 3 as party–Acceptance of–Revision against–Acceptance on ground that application was time barred–Writ against–Suit against original vendee was filed within time and it was a subsequent development, as a result whereof vendor had to be impleaded as party to suit–A.D.J. acted on erroneous assumption on treating application for impleading vendor as party as time barred as hit by Section 30 of Act, 1991–Impugned order is not sustainable in law, hence, declared as without lawful authority. PLJ 1999 Lahore 1170
2. Copy of net profits :– Relevant net profits of land wrongly assessed or not assessed at all, or if assessed statement not made available to plaintiff within period of limitation or even if plaintiff obtained statement same appeared to be tainted with overwriting or forgery and plaintiff not taking any risk and not filing-Held, law of limitation or for that matter pre-emption, did not in any way provide that if and when plaintiff files a suit without statement of net profits, same shall be deemed that plaintiff acted illegally or dishonestly. P L D 1984 S.C.157 Plaintiff making application for supply of relevant statement of net profits on day he filed suit with understanding therein that as and where proper court-fees is determined plaintiff would pay same ; together with his application on receipt of said statement, for submission of proper court-fees worked out on basis thereof-Challan for purchase of court-fee stamps submitted with such application was for proper – court-fees and accordingly amount was deposited-Held, it was an amply fit case for allowing request of plaintiff made (amongst other provisions) under S. 1.49, C. P. C.-Failure to exercise discretion in favour of plaintiff in such case was on account of misunderstanding of legal question of limitation and liable to be corrected by High Court-High Court having not corrected question of limitation, S.C. allowed appeal, set aside Judgment and decree and allowed application of plaintiff seeking permission to pay court-fees and simultaneously producing challans of deposit of court fees with necessary consequences that suit as instituted would in law be deemed to have been filed with proper fee-Case and record remitted to trial Court for determination on merits. P L D 1984 S.C.157
3. Dismissal on point of limitation (more than one year)–Appeal against–Acceptance of–Revision against–Dismissal of -Appeal against–Period of limitation for filing pre-emption suit about agricultural land under S. 30 of Punjab Pre-emption Act , 1913 was one year from date of attestation of sale by R.O. or from date on which vendee took over possession of any part of land sold–As against this, S. 10 of Limitation Act, fixed period of limitation for such suit at one year- Factum of taking of physical possession is, therefore, to be proved by visible, tangible and convincing evidence -This kind of evidence is not available–Mere acknowledgement or receipt of certain amount in a document or recital therein of having obtained possession, cannot be considered a notice to those who intend to pre-empt sale–Statement of tenant of cultivated portion of land which negates claim of possession of vendee, has rightly been believed by lower Courts–There is no affirmative evidence to show that actual possession of land on spot has been taken by appellant either by ploughing or raising wall or hedges around it or by any other visible act which may become notice to those interested in land by exercising their pre-emptive rights over it–There is no over looking or misreading of any evidence, hence, no justification for interference in agreed decision of lower Courts–Appeal dismissed. PLJ 1999 SC 1084
4. Exclusion of areas from pre-emption–Power of Government–Whether repugnant to Injunctions of Islam–Question of–According to Hadith of Holy Prophet (peace be upon him), no property can be exempted from right of preemption–However, Government, in dire necessity, may exempt specific property from right of pre-emption if it is acquired in accordance with shariah and in public interest–Section 29 of Act gives a very wide and unbridled power to Government which may even go to extent of nullifying object and purpose of law of pre-emption in garb of “public interest”–Held: This section appears to be repugnant to Injunctions of Islam. PLJ 1991 FSC 93
5. Extension of time. Provisions of S. 30 of Punjab Pre-emption Act, 1991, are mandatory in nature. Period of four months from date of registration fixed by S. 30 of Punjab Pre-emption Act, 1991, cannot be extended because of S, 31 of Act as official act is presumed ‘to have been duly and regularly performed. Time of four months will run from date of knowledge of pre-emptor only if sale is not under clauses (d) of S. 30 of Act. Time cannot be made to run from date of knowledge of giving of public notice as required by S. 31 of Act in case sale is through registration of deed. Per Hamid Ali Mirza, J. P.L.J.2001 SC 1232 = PLD 2001SC 499- Sections 30 & 31 being mandatory in nature have to be read together in conjunction of each other. Per Iftikhar Muhammad Chaudhry, J.-P.L.J.2001 SC 1232 = PLD 2001 SC 499.
6. limitation:– Provision of S. 30, Punjab Pre-emption Act provides limitation to run from date of attestation of mutation or from the date of taking by vendee of physical possession under the sale of any part of property sold, whichever date is earlier-In case of oral sale wherein land was incapable of physical possession, though such sale was confirmed by a civil Court, decree would not fall under S. 30, Punjab Pre-emption Act Suit for pre-emption against an oral sale of such land as was incapable of physical possession though confirmed by civil Court decree, would not fall under S. 30 of Act and would be governed by Art. 120 of Limitation Act and such suit could be filed within six years from the date “the right to sue accrued” to pre-emptor. P L D 1987 Lah. 127 Right of pre-emption arises only in case of sale of immovable property vide S. 5 of Punjab Pre-emption Act, 1991, as same can take place either by registration of sale-deed or otherwise as provided under S. 30 of Punjab Pre-emption Act, 1991, when title of said property as required by law is passed on to vendee i.e. where deed of conveyance is registered or otherwise. Such right of pre-emption to pre-emptor does not arise when public notice is affixed as registration of a document is not a thing of which either executant, i.e. vendor, or vendee has to do anything in that direction as such act is to be performed after execution of a document by parties by officer appointed by law for that purpose. Per Hamid Ali Mirza, J.-P.L.J.2001 SC 1232 = PLD 2001 SC 499. Limitation period for filing of suit against a sale reflected through a decree of Court is not governed by provisions of S. 30 and Art. 10 of Limitation Act. In such cases, residuary Art. 120 shall apply and period of limitation would be six years with effect from date of accrual of cause of action.- P.L.J. 2000 SC 324,Pre-emption suit filed within one year from date of attestation of mutation would be within time when there is no evidence on record that vendee had taken possession of suit land under sale prior to Sanction of mutation. Conclusion reached by trial Court that pre-emption suit was within time, which has been upheld by High Court, was based on cogent reasons and therefore was unassailable before S.C. on the point of Limitation.- P.L.J.2000 SC 324. Contention of pre-emptor was that vendee had .kept factum of sale-deed secret for which he had no notice and as nothing was mentioned in written statement to indicate whether any notice had been given by Registering Officer after registering deed, therefore, limitation would start running from date when pre-emptor came to know regarding registration of sale-deed and without recording evidence as regards notice which was to be given to public under S. 31 of Punjab Pre-emption Act, 1991, by Registering Officer, plaint could not be rejected under 0. VII, R. 11, C.P.C.. Leave granted to consider above said contention.-P.L.J.2001 SC 1232 = PLD 2001 SC 499. Application under O.VII, R.11(d), C.P.C., seeking rejection of plaint for being time-barred—Withdrawal of such application before its decision on merits—Filing of similar application for second time in contravention of provisions of O.XXIII, R.1(3), C.P.C.—Section 30 of Punjab Pre-emption Act, 1991 was mandatory in nature and its S. 31 did not have effect of extending period of limitation—Question of limitation touching S. 31 of Punjab Pre-emption Act, 1991, would not remain a mixed question of law and fact, rather same being a pure question of law, could be decided without recording of evidence—Duty of court to advert to point of limitation even though no objection, was raised by either side and no finding was given on earlier application—court was under obligation to see, whether plaint was filed within the limitation provided. 2004 M L D 270 sale through registered sale-deed—starting point of limitation would be from its registration. 2004 M L D 270 Where mutation in question had found its way in the Revenue Record, the burden of proof that the persons affected by it were unaware either of the attestation of mutation or of subsequent entries in the Revenue Record would heavily lie on the party asserting such facts. 2004 C L C 240 Limitation for filing of suit to enforce right of pre-emption is contained in Art. 10 of Limitation Act- Cases which do not fall under Art. 10, Limitation Act, 1908, held, would fall under Art. 120 of the Act which is a residuary provision-Provisions of S. 30 of Punjab Pre-emption Act, 1913, was enacted as a provision supplementing those of Art. 10 of Limitation Act, 1908. P L D 1987 Lah. 127 Limitation on basis of possession-Provisions of Art. 10 of Limitation Act, is the primary provision to apply in pre-emption suit-In cases where Art. 10 Limitation Act, 1908 was not applicable, limitation for a pre-emption suit would be governed by Art. 120 of Limitation Act, 1908-Provision of S. 30, Punjab Pre-emption Act is in the nature of an exception to Art. 120 of Limitation Act, 1908-Application of Art. 120, Limitation Act, 1908 would therefore stand curtailed by S. 30 of Punjab Pre-emption Act, 1913-For sustaining objection about limitation on basis of possession, essential requisites would be one of physical possession and the other of such possession being `under the sale’. P L D 1987 Lah. 127 Physical possession-Fractional share of Joint property whether capable of physical possession-Fractional share of Joint property, held, was incapable of physical possession. P L D 1987 Lah. 127 Wali Muhammad v. Dost Muhammad and another 1986 C L C 1220 rel. Period of limitation. Petitioner alleged that suit was filed under Punjab Pre-emption Act, 1913–Section 30 of 1913 Act was declared as against Islamic Injunctions and therefore, this suit filed almost after one year of registration of sale deed was hopelessly time barred–Even if any Islamic law of Shufa was prevalent during (8.11.1987 to 8.11.1988), High Court is of the considered opinion that if any suit was filed after the expiry of four months during the said period that would be regarded as time-barred–Held : It will be a futile exercise to remand the case because even if that procedure is adopted, result would be same. PLJ 1996 Lahore 635 Whether suit was time barred:- Question of limitation was not debated in Trial Court, first Appellate Court and second Appellate Court, and for that reason, neither an issue exists nor a finding has been recorded by any of Courts–It is not disputed that parties had expressed and intended that sale would be complete only on registration of sale deed and not earlier–Held: Such being intention and content of document, sale cannot be said to be complete with execution of agreement to sell nor possession obtained under agreement to sell was possession obtained under sale so as to afford a cause of action to pre-emptor to bring suit. PLJ 1994 SC 126
7. Provision of limitation, Whether repugnant to Injunctions of Islam. Provision of limitation is a matter based on Ijtihad and it cannot be said that fixing of period of limitation to four months will be repugnant to Injunctions of Islam–Held: Period of 4 months is not repugnant to Injunctions of Islam. PLJ 1991 FSC 93
8. Rejection of plaint. Contention by pre-emptor was that there was no notice of sale, as required under S, 31 of Punjab Pre¬emption Act, 1991, therefore, plaint could not be rejected without recording of evidence. Validity. In plaint plea for not filing suit within four months from registration of sale-deed was not non-compliance of S. 31(2) of Punjab Pre¬emption Act, 1991, by Registering Officer. While examining application moved by defendant under O.VII, R. 6, C.P.C., except contents of plaint, reference to no other document had to be made. Trial Court had rightly rejected plea of pre-emptor raised for first time in reply of application. Pre-emptor, had knowledge about factum of sale of subject-matter of suit but he did not approach Court for relief within time, therefore, no interference in Judgment was called for. Appeal dismissed. Per Iftikhar Muhammad Chaudhry.-P.L.J.2001 SC 1232 = PLD 2001 SC 499. Whether suit was time barred. Question of limitation was not debated in Trial Court, first Appellate Court and second Appellate Court, and for that reason, neither an issue exists nor a finding has been recorded by any of Courts. It is not disputed that parties had expressed and intended that sale would be complete only on registration of sale deed and not earlier. Such being intention and content of document, sale cannot be said to be complete with execution of agreement to sell nor possession obtained under agreement to sell was possession obtained under sale so as to afford a cause of action to pre-emptor to bring suit. P.L.J.1994 SC 126 = PLD 1994 SC 120 = 1994 PSC 5.
9. Suit barred by limitation on account of supply of deficit court-fee-Plaintiff not required to obtain statement of net profits before filing suit for pre-emption -Failure of plaintiff to obtain statement of net profits will operate against him when considering question of entertaining court-fee, if same was supplied after institution of suit on, (or even without) objection from defendant or Court-Right of pre-emption established-Court cannot refuse such right in exercise of discretion-Plaintiff cannot be deprived of his right for mere lapse of time unless there had been abandonment, acquiescence or waiver or at least, an alteration in position of defendant in that other party has been put in a situation in which it would not be reasonable to place him, if remedy were afterwards to be asserted-Mere fact that plaintiff waited till last day of limitation would not disentitle him to any relief, discretionary or otherwise simply because plaintiff availed of full period of limitation. P L D 1984 S.C.157 Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 S C 821; Ghulam Nabi and others v. Seth Muhammad Yaqub and others P L D 1983 S C 344 and Fateh Muhammad v. Abdul Ghani and another P L D 1981 S C 371 ref. Payment of court-fees in pre-emption suit on determination of value of subJect-matter in that behalf through (prevalent) practice of calculation on basis of annual net profits, held, has led to unfortunate long delays, unnecessary expense and unnecessary litigation on hypertechnical issues-Attempts also made to misuse law and practice in order to obtain undue advantage-Amendment in relevant law suggested. The experience so far gained regarding the payment of court-fee in preemption suits on determination of the value of the subJect-matter in that behalf through the prevalent practice of calculation on the basis of the annual net profits, has led to unfortunate long delays, unnecessary expense as also unnecessary litigation on hypertechnical issues. Sometimes attempts are made to misuse the law and practice in order to obtain undue advantage. It is appropriate that the concerned agency should examine the feasibility of amending the law regarding court-fee in pre-emption cases (at whatever limit of valuation it is decided to levy) on the basis of the sale price asserted by the vendee as paid by him. On account of devaluation and widespread inflation the value of immovable property has increased many times. If a pre-emptor is ready to pay the price paid by the vendee or whatever is determined by the Court, as the price payable by him, he should be ready to pay the court-fee accordingly (if, of course, on principle the court-fee is made leviable as the limit of the value concerned) In cases where ultimately the amount of court-fee determined by Court as payable, on a claim to be presented by the plaintiff, is found to be less than what was originally paid by him at the time of the filing of the suit, the excess amount could be refunded in accordance with law. The principle and procedure for refund of income-tax paid in excess of the due amount can, with advantage mutatis mutandis be adopted in this behalf also: P L D 1984 S.C.157

Court Decisions
Provisions of S. 31(2) are mandatory in nature. Sections 30 & 31 being mandatory in nature have to be read together in conjunction of each other. Failure to fix notice of sale under S. 31 of Punjab Pre¬emption Act, 1991. Effect. Right of pre-emption arises only in case of sale of immovable property vide S. 5 of Punjab Pre-emption Act, 1991, as same can take place either by registration of sale-deed or otherwise as provided under S. 30 of Punjab Pre-emption Act, 1991, when title of said property as required by law is passed on to vendee i.e. where deed of conveyance is registered or otherwise. Such right of pre-emption to pre-emptor does not arise when public notice is affixed as registration of a document is not a thing of which either executant, i.e. vendor, or vendee has to do anything in that direction as such act is to be performed after execution of a document by parties by officer appointed by law for that purpose. Per Hamid Ali Mirza, J.- Contention by pre-emptor was that there was no notice of sale, as required under S, 31 of Punjab Pre¬emption Act, 1991, therefore, plaint could not be rejected without recording of evidence. Validity. In plaint plea for not filing suit within four months from registration of sale-deed was not non-compliance of S. 31(2) of Punjab Pre¬emption Act, 1991, by Registering Officer. While examining application moved by defendant under O.VII, R. 6, C.P.C., except contents of plaint, reference to no other document had to be made. Trial Court had rightly rejected plea of pre-emptor raised for first time in reply of application. Pre-emptor, had knowledge about factum of sale of subject-matter of suit but he did not approach Court for relief within time, therefore, no interference in Judgment was called for. Appeal dismissed. -S. 31(2) By use of word “shall” compliance of same has been made compulsory under command of law as provision has been enacted for benefit of general public which also includes pre-emptor. Object of use of word “shall” is to restrain vendor and vendees to conceal sale of a pre-emptable property in order to deprive a pre-emptor from enforcing right of pre-emption. S. 31(2) Registering Authority, under provisions of S. 31(2) of Punjab Pre-emption Act; 1991, is bound to complete registration of document and make the same public in prescribed manner. Where provisions of S. 31(2) of Punjab Pre-emption Act, 1991, are not complied with, despite registration of sale-deed, it would be deemed that general public including pre-emptor had no knowledge about registration of document and time of four months for filing suit for pre-emption will run from knowledge of pre-emptor about sale. P.L.J.2001 SC 1232 = PLD 2001 SC 499.
Question of limitation touching S. 31 of Punjab Pre-emption Act, 1991, would not remain a mixed question of law and fact, rather same being a pure question of law, could be decided without recording of evidence—Duty of court to advert to point of limitation even though no objection, was raised by either side and no finding was given on earlier application—court was under obligation to see, whether plaint was filed within the limitation provided. 2004 M L D 270
Word “shall” used in S. 31 of Punjab Pre-emption Act, 1991, did not carry any penal clause in case of non-compliance of affixation of public notice. Non-affixation of. notice would not make execution and registration of deed void document. Where suit for pre-emption was not filed within four months from date of registration of deed, suit so filed would be barred by time. Suit having been filed in contravention of law would be liable to be dismissed which right when accrued in favour of vendee, could not be allowed to be taken away because of default of Officers who were to affix notice, for which vendee was not at fault. P.L.J.2001 SC 1232 = PLD 2001 SC 499.
Registration of sale deed or attestation of mutation–Public notice of–Whether repugnant to Injunctions of Islam–Question of–Law provides for a notice after sale which seems to be in consonance with principle that right of Shufah is created only after sale–Held: A notice after sale does not appear to be repugnant to Injunctions of Islam. PLJ 1991 FSC 93

Court Decisions
Application of C.P.C and Qanun-e-Shahadat Order, 1984– Whether repugnant to Injunctions of Islam–Question of–Provisions of C.P.C. and Qanun-e-Shahadat are in nature of procedural law and same have not been challenged before Federal Shariat Court–Held: Federal Shariat Court cannot declare section 33 of Act as repugnant to Injunctions of Islam until same is challenged before it. PLJ 1991 FSC 93

Court Decisions
Suit for pre-emption decreed on 21.6.1986 on basis of compromise. Appeal against such Judgment and decree was accepted on 10.11.1986 and case was remanded for decision afresh. Judgment and decree of Appellate Court having been assailed in revision the same was accepted by .High Court. Defendant’s application for rejection of plaint on the basis that Judgment and decree dated 21.6.1986 being null and void should be set aside. Trial Court and Appellate Court unanimously maintained that one decree was passed in favour of pre-emptor prior to crucial date 31.7.1986, case would deal’ with by the old pre-emption law i.e., Pre-emption Act 1913, Validity. Provision of S, 34(2) Punjab Pre-emption Act 1991 deals with two type of cases, that is where decree was passed before target date and where decree was not passed before target date of 31.7.1986 and makes it clear that where Judgment and decree was passed before target date, notwithstanding anything contained in the Act, for the proceedings, if any, relating to such cases ‘and appeals, not-withstanding repeal of that Act (1 of 1913) be governed and continued in accordance with provisions thereof. Plaintiff’s case was fully covered by S. 34(2) Punjab Pre-emption Act 1991. Proceedings in plaintiff’s case would continue according to old law (I of 1913), notwithstanding repeal thereof. No interference was warranted in-Judgments of Courts below wherein rejection of plaint was refused. PL J 2000 Lah. 1990 = 2000 CLC 340.
During pendency of appeal Punjab Pre-emption Act 1913 was repealed. Whether High Court could decide appeal in accordance with provisions of repealed Act. Judgments and decrees in favour of plaintiff had been passed long before target date mentioned in S. 34(2) Case is quite clearly covered by Sub-Section (2) of S. 34 and therefore, appeal was rightly decided by High Court in accordance with provisions of repealed Act viz. Punjab Pre-emption Act, 1913. Petition dismissed. P.L.J.1996 SC 1725 = 1997 SCMR 108.
Ex-parte decree passed in before 31.7.1986, target date–Whether further proceedings would lie under old Act or new Act–Question of–Decree in favour of pre-emptor, though ex-parte, was passed on 18.7.1985–There can be no difference between a decree passed after contest and a decree passed ex parte as both are decrees as defined in Section 2(2) of C.P.C.–Held: After setting aside ex-parse decree, subsequent trial shall be governed by Punjab Pre-emption Act, 1913 as if it had not been repealed–Appeal accepted and case remanded. PLJ 1992 SC 469 PLJ 1986 SC 576, PLJ 1988 SC 224 and 1992 SCMR 445 ref
Whether High Court could decide appeal in accordance with provisions of repealed Act–Question of–Judgments and decrees in favour of plaintiff had been passed long before target date mentioned in S. 34(2)–Case is quite clearly covered by sub-section (2) of S. 34 and therefore, appeal was rightly decided by High Court in accordance with provisions of repealed Act viz. Punjab Pre-emption Act, 1913. PLJ 1996 SC 1725

Court Decisions
Revival of suit– Under Section 35(1), pre-emption suits instituted or pending between 1-8-1986 and 28-3-1990 and dismissed, could be revived on application in case right of pre-emption claimed therein, was available under new Act–Revival is subjected to Section 35(2) regarding period of limitation and performance of Talab-e-Ishhad–Plaint in this case, has no indication about Zaroorat or Zarar envisaged in Section 6(2) of Act–Held: Without amendment of plaint for incorporation of a statement about Zaroorat or avoidance of Zarar in it, suit could not be revived–Petition accepted and order of trial court dismissing revival application restored. PLJ 1993 Lahore 419 1992 MLD 1207, 1993 CLC 85 and 1992 MLD 1879 rel. Contention that no decree of pre-emption, even on ground of co-sharership, can be granted after 31.7.1986–Provisions of Sections 15 and 30 Punjab Pre-emption Act, 1913 ceased to have effect in law in view of declaration made in Said Kamal’s case and as a consequence, Act of 1913 was rendered impracticable–Provision of Section 35 of Act 1991 is also not available as provision contained in Section 35(1) applies to decrees, judgments and orders of dismissal of suits instituted or pending between 1.8.1986 and 28.3.1990–Decree passed on 14.10.1987 (in this case) was without jurisdiction as per judgment of Supreme Court is Sultan v. Habib Ahmad–Held: Such a decree passed in this period when no law of pre-emption existed, being without jurisdiction, will be set aside and suit will have to be treated as still pending to be decided in accordance with new law–Held further: Question of filing an application for seeking amendment of plaint and to make averments regarding Talabs will arise only after suit becomes pending–Petition accepted. PLJ 1993 Lahore 47
Limitation of one year for suits mentioned in saving clause (1) Whether repugnant to Injunctions of Islam. Punjab Pre-emption Act, 1913 ceased to have effect on 31.7.1986, but fresh law of pre-emption was promulgated through Ordinance on 29.3.1990. In intervening period, no pre¬emption law was available. Purpose of Section 35 is to protect all those suits which were instituted or where pending. during this interregnum period, subject to availability of right under new law. However, by virtue of Sub-Section (2), such suits were exempted from requirement of Talbs^ period of limitation was extended for such suits to one year and notice to vendee was dispensed with. Federal Shariat Court held that three Talbs were substantive part of Islamic law of pre-emption and concession given in Section 35(2) for pending suits is repugnant to Injunctions of Islam. Reasons given by Federal Shariat Court in this respect are well founded and Judgment given on their basis needs no interference. Section 35 (2) is repugnant to Injunctions of Islam in so far as it exempts cases pending or instituted during interregnum period from requirements of Talb-i-Muwathabat and extends right of limitation for them up to one year. P.L.J.1994 SC 221 = PLD 1994SC 1.
Whether words “judgments and decrees” as used in Section 34(2) imply judgments and decrees passed in favour of plaintiffs only– New provision of law over-rides rule laid down by a number of judgments of Supreme Court–Held: Words “judgments and decrees” cover both cases, i.e. those in which plaintiff–pre-emptor’s suit was decreed and those in which plaintiffs suit was dismissed–Held further: There is no infirmity in judgment of High Court–Petition dismissed. PLJ 1994 SC 254
Under Section 6, right of pre-emption vests in a person who is Shafi Shank, Shafi Khalit or Shafi Jar, but it is made exercisable only in case of Zaroorat or to avoid Zarar–It is firmly settled law that pleadings are not evidence whereas pleas raised in pleadings are to be proved by producing evidence–Admittedly no evidence was produced that petitioner was exercising right of pre-emption in case of Zaroorat or to avoid Zarar–Held: Suit was rightly dismissed and courts below have not committed any material irregularity or illegality in exercise of jurisdiction vested in them under law–Petition dismissed. P1 J 1992 Lahore 312
Whether court has no power to determine whether transaction of gift is sale in disguise — Question of — Provision of Section 4 of 1913 Act namely “nothing in this section shall prevent a court from holding that an alienation purporting to. be other than a sale, is in fact a sale” is omitted in 1991 Act, but it is wrong to say that omission of this provision was intended to bring about a change in law –Power to determine real nature of transaction always resided in courts and Section 4 of 1913 Act did not vest any such power on courts — Legislature must be presumed to have omitted said provision being unnecessary and redundant –Petition dismissed. PLJ 1993 Lahore 260
Whether provisions are repugnant to Injunctions of Islam– It has been stated in sub-section (2) of Section 35 that period of limitation for filing suits mentioned in sub-section (1) shall be one year, and that Talb-i-Ishhad is to be established by producing two truthful witnesses–Period of limitation has already been held to be a substantive part of law of pre-emption and so is case with talabs–Held: Exclusion made or exception provided in sub-section (2) regarding Sections 13 and 30 in relation to saving of suits pending on 31.7.1986 or instituted thereafter during interregnum period viz. 1.8.1986 to 28.3.1990, is repugnant to Injunctions of Islam. PLJ 1991 FSC 93

Court Decisions
Property in question had not been treated as evacuee property in terms of S. 3, West Pakistan (Administration of Evacuee Property) Act, 1957-Land in question, was never allotted to displaced persons-Plaintiffs being in possession on basis of their possessory title, entries in Jamabandi for the year 1930 31 recorded their possession as tenant and such entry was sufficient to prove that they were in possession without any payment of rent to owners-Trial Court ignoring documents of more than thirty years old had wrongly treated land in question to be evacuee even though it had not been so treated by the Rehabilitation and Settlement Department-Plaintiffs suit for establishment of occupancy rights was also pending adjudication-Dismissal of plaintiffs’ snit on the ground that property in question, was evacuee was not warranted in circumstances. 1995 C L C 1823
Court Decisions
Rev. authorities sanctioned mutation by mutating ownership rights in occupancy tenants in the part of the land assuming as if rent was payable in kind only. Appellant’s suit claiming ownership was decreed by Trial Court. Appellate Court and High Court, however, in appeal and revision respectively dismissed appellant’s suit on the ground that civil Court lacked Jurisdiction on and that the matter in question was within inclusive Jurisdiction of Rev. Authorities. Validity. Both Appellate Court and the High Court had lost sight of the fact that under S. 114 (3) of Punjab Tenancy Act, 1887 as amended by Punjab Tenancy (Amendment) Act, 1952, relationship between parties as landlord and tenant was constituted till framing of rules by Government. Such rules were framed by the Government in 1953, therefore, on the date when impugned mutation was sanctioned by Rev. Authorities in the year 1960 and on date of filing of suit relationship of landlord and tenant between parties had ceased to exist, thus, bar of Jurisdiction of Civil Court to entertain any suit in respect of any dispute between landlord and tenant was no more available. Appellant’s suit was, thus, triable by Civil Court. Judgments of High Court in revision and that of Appellate Court were set aside. Case was remanded to Appellate Court for decision afresh on merits in accordance with law. P.L.J. 2001SC49.

Court Decisions
Gift of property by occupancy tenant-Deceased was occupancy tenant of the suit land who died issueless and after his death the occupancy rights were sanctioned by the Revenue Authorities in favor of his sister-Sister of the deceased during her holding gifted the suit land-proprietors/plaintiffs assailed the transaction being based on collusion and fraud-Defendants contended that the sister of the occupancy tenant had deposited the compensation under Punjab Tenancy Act, 1887, which was duty received by the plaintiffs, therefore, the gift made in favor of the defendants was legal-Trial court found sister of the occupancy tenant as limited owner and suit was decreed in favor of the plaintiffs-First Appellate Court reversed the findings of Trial Court, allowed the appeal and set aside the judgment and decree passed by the Trial Court-Plea raised by the proprietors/plaintiffs was that the provisions of Ss. 8 & 114 of Punjab Tenancy Act, 1887, were misinterpreted and misconstrued by the First Appellate Court-Validity-None of the legal heirs had come forward and challenged the alienation of entire holding through gift while it was challenged by the proprietors of the disputed property-Right of the proprietors/plaintiffs became extinct at the time when the mutation of last occupancy tenant was sanctioned in favor of the sister of the deceased occupancy tenant-Under S. 114 of Punjab Tenancy Act, 1887, the proprietary rights devolved upon the occupancy tenants and she had deposited the entire price-Owners of the disputed property were challenging the mutation of occupancy tenancy in favor of the sister through civil suit and then consenting in appeal about her right as ‘limited owner’ till lifetime but the owners did not challenge the conferment of the proprietary rights upon the sister under S. 114 of Punjab Tenancy Act, 1887, First Appellate Court had rightly found that the sister had become absolute owner after the extinction of rights of proprietors and could alienate her entire holding in absence of any legal heir challenging the same-High court declined to interfere with the judgment and decree passed by the First Appellate Court. PLD 2003 Lah. 180

Court Decisions
Deceased was occupancy tenant of the suit land who died issueless and after his death the occupancy rights were sanctioned by the Revenue Authorities in favor of his sister-Sister of the deceased during her holding gifted the suit land-proprietors/plaintiffs assailed the transaction being based on collusion and fraud-Defendants contended that the sister of the occupancy tenant had deposited the compensation under Punjab Tenancy Act, 1887, which was duty received by the plaintiffs, therefore, the gift made in favor of the defendants was legal-Trial court found sister of the occupancy tenant as limited owner and suit was decreed in favor of the plaintiffs-First Appellate Court reversed the findings of Trial Court, allowed the appeal and set aside the judgment and decree passed by the Trial Court-Plea raised by the proprietors/plaintiffs was that the provisions of Ss. 8 & 114 of Punjab Tenancy Act, 1887, were misinterpreted and misconstrued by the First Appellate Court-Validity-None of the legal heirs had come forward and challenged the alienation of entire holding through gift while it was challenged by the proprietors of the disputed property-Right of the proprietors/plaintiffs became extinct at the time when the mutation of last occupancy tenant was sanctioned in favor of the sister of the deceased occupancy tenant-Under S. 114 of Punjab Tenancy Act, 1887, the proprietary rights devolved upon the occupancy tenants and she had deposited the entire price-Owners of the disputed property were challenging the mutation of occupancy tenancy in favor of the sister through civil suit and then consenting in appeal about her right as ‘limited owner’ till lifetime but the owners did not challenge the conferment of the proprietary rights upon the sister under S. 114 of Punjab Tenancy Act, 1887, First Appellate Court had rightly found that the sister had become absolute owner after the extinction of rights of proprietors and could alienate her entire holding in absence of any legal heir challenging the same-High court declined to interfere with the judgment and decree passed by the First Appellate Court. PLD 2003 Lah. 180

Court Decisions
Section I5 A(2) of Tenancy Act does not extend to charges and levies not falling within definition of “Government dues” and hence not attracted to special charges levied under Ss. 33 to 35 of Act VIII of 1873. P L D 1971 Lah.979
Trial Court treating property in question to be evacuee property-Validity-Property in question had not been treated as evacuee property in terms of S. 3, West Pakistan (Administration of Evacuee Property) Act, 1957-Land in question, was never allotted to displaced persons-Plaintiffs being in possession on basis of their possessory title, entries in Jamabandi for the year 1930 31 recorded their possession as tenant and such entry was sufficient to prove that they were in possession without any payment of rent to owners-Trial Court ignoring documents of more than thirty years old had wrongly treated land in question to be evacuee even though it had not been so treated by the Rehabilitation and Settlement Department-Plaintiffs suit for establishment of occupancy rights was also pending adjudication-Dismissal of plaintiffs’ snit on the ground that property in question, was evacuee was not warranted in circumstances. 1995 C L C 1823

Court Decisions

:– Ejectment of tenant:– Right of a person holding decree for ejectment is independent of his other right under decree for arrears or rent:– Person cannot be ejected if there is only a decree for arrears of rent or if be has neither a right of occupancy a fixed term etc. P L J 1980 Lahore 591

Court Decisions
Ejectment of tenant:– Right of a person holding decree for ejectment is independent of his other right under decree for arrears or rent:– Person cannot be ejected if there is only a decree for arrears of rent or if be has neither a right of occupancy a fixed term etc. P L J 1980 Lahore 591

Court Decisions
Ejectment of tenant:– Right of a person holding decree for ejectment is independent of his other right under decree for arrears or rent:– Person cannot be ejected if there is only a decree for arrears of rent or if be has neither a right of occupancy a fixed term etc. P L J 1980 Lahore 591
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Court Decisions
Petitioner who had been dispossessed through the agency of the police at direction of Deputy Commissioner, could not resort to the filing of civil suit under S. 9 of Specific Relief Act, or under S, 50 of the Punjab Tenancy Act, 1887 as his personal and individual right stood infringed and he had rightly resorted to the filing of Constitutional petition. Provisions of Art. 199 of Constitution of 1973 confer very wide powers on High Court for enforcement of Fundamental and legal rights. P.L.J.1999 Lah. 140 = 1998 MLD 1977 = NLR 1998 Civil 714.

Court Decisions
Occupancy tenant died on 21.12.1950 while S. 59 was amended in 1951. Who was to succeed M Bibi widow of S (occupancy tenant), who died issueless. Parties in this behalf relied on S. 59. M Bibi died on 21.12.1950 while S. 59 was amended by Act IV of 1951, therefore, case would be governed by provision as it stood originally. Collaterals in order to succeed were to prove, (i) Common ancestor; and (ii) common ancestor was in possession. Onus to prove both ingredients was on plaintiffs. In pedigree table plaintiffs have common , ancestor but this was not sufficient. They were also to prove that land was occupied by ancestor. P.L.J.1998 Lah. 1620 = NLR 1998 Rev. 37.
Punjab Tenancy (Amendment) Act (VII of 1952) read with Muslim Personal (Shariat) Law-Occupancy tenancy converted into proprietorship-Embargo on the power of Occupancy Tenant retarding alienation-Will last till death or succession opens otherwise-Status. of heir will undergo change, when land devolves under the Muslim Personal (Sharia) Law-Mere conversion of occupancy tenancy into proprietorship will not lake off fetter already attached-“Locus standi-Suit challenging alienation does not flow from the Act but from customs-Reversionaries can file suit for getting alienation declared invalid-Plaintiffs have right to challenge invalid gift as well as sue for the possession of their share after death of limited owner. P L J 1981 Supreme Court 888
Customary law-,Bandbust Record shows that land was in possession as occupant tenant -Devolution of whole land on widow-Evidence of fact that it was either by virtue of Custom or S. 59 but not under Muslim Personal (Shariat) Law -Case governed by Custom in the matter of alienation-Life estate Widow as limited owner-Cannot. alienate property by gift-Such gift, invalid. P L J 1981 Supreme Court 888
Occupancy rights in evacuee land—Displaced Persons (Land Settlement) Rules (1959), R. 7 (c) and Rehabilitation Settlement Scheme (1956) para. 4-A—Compensation pools created under S 5. Displaced Persons (Land Settlement) Act (XLVII of 1958)—Purports to grant compensation to displaced persons whose claims had been verified—Occupancy rights not owned nor possessed by non-muslim evacuees but left by Muslim as legacy to be devolved upon his own heirs enumerated in S. 59 of the Act (1887)—Allotment of such rights to refugee claimant; in lieu of their verified claims, barred by para. 4-A of the Scheme, (1956)— Disputed rights being owned and possessed by Muslim occupancy tenant were subject -to ordinary jurisdiction of civil Courts-S. 9, Civil P.C. (1908). P L J 1980 Lahore 532
Compensation pools created under S 5. Displaced Persons (Land Settlement) Act (XLVII of 1958)—Purports to grant compensation to displaced persons whose claims had been verified—Occupancy rights not owned nor possessed by non-muslim evacuees but left by Muslim as legacy to be devolved upon his own heirs enumerated in S. 59 of the Act (1887)—Allotment of such rights to refugee claimant; in lieu of their verified claims, barred by para. 4-A of the Scheme, (1956)— Disputed rights being owned and possessed by Muslim occupancy tenant were subject -to ordinary jurisdiction of civil Courts-S. 9, Civil P.C. (1908). PL J 1980 Lahore 532
Father having right of tenancy over long, whether daughter entitled to inherit estate of her father according to her personal law–Question of–Last owner Muhammad Shaft was having right of occupancy governed by Punjab Tenancy Act, enforced on March 22, 1948 in place of Tenancy Act of 1980-Bk (Act No. 11 of 1980) through Adaptation of Law Resolutions, 1948 dated 22.3.1948–Succession to occupancy tenancy is not governed by custom applicable to parties or by their personal law except as provided in S. 59 of Punjab Tenancy Act, amended later on in December, 1952 when Shariat Personal Law was held applicable–Held: Plaintiff, though real sister of defendant-appellant is not entitled to inherit estate left by her father having right of occupancy in Land–Appeal accepted. PLJ 1996 AJ&K 58

Court Decisions
In view of divergent entries in respect of nature of ownership/ tenancy recorded in Jamabandis for different years, a factual inquiry was necessitated to settle matters in issue, under Section 77 of Punjab Tenancy Act. Factual controversy regarding ownership and tenancy between parties was not settled by Rev./ Officers in accordance with law. Accordingly writ petition is accepted with observation that all orders passed by Rev. Officers i.e. order dated 4.10.1989 passed by Assistant Commissioner, order dated 27.2.1990 setting aside order dated 4.10.1989, order dated 24.7.1990 passed by learned Additional Commissioner (Rev.), Gujranwala and that of learned Member (Judicial-I) Board of Rev., Punjab dated 12.11.1991 being bad in eyes of law are set aside. Any body claiming ownership tenancy in respect of land in question may file a suit under Section 77 of Punjab Tenancy Act, 1887 for settlement of controversy. P.L.J.1999 Lah. 673 = 1999 MLD 2727
Necessary and proper party, Hon’ble S.C.has laid down in case Muhammad Jamil Asghar vs. Improvement Trust Rawalpindi that person by getting a declaration through court, if likely to gain advantage as regards his rights, cannot be refused declaration on ground of want of locus standi. Held : No prejudice would be caused to petitioner if respondent remains impleaded as defendant, thus learned courts below have exercised their discretion properly without any illegality. P.L.J.1998 Lah. 314
Basis for purposes of suit: petitioners are tenant and cannot be evicted-Suit maintainable in Revenue Court having territorial jurisdiction-High Court rightly held that suit in civil Court was hit by second group of S. 77. P L J 1981 Supreme Court 225
Accounts, rendition of—Petitioners conceding to be in possession of land in dispute as co-sharers/ co-owners in excess of their entitlement—Petitioners, held, not justified to deny their liability for rendition of accounts or refuse to pay amount due—Case of another village where plaintiffs were similarly in joint possession and liable for accounts to defendants, not a relevant ground to impugned orders. P L J 1980 Supreme Court 58
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Court Decisions
Acquisition of ownership rights in land under such tenancy. Rev. authorities sanctioned mutation by mutating ownership rights in occupancy tenants in the part of the land assuming as if rent was payable in kind only. Appellant’s suit claiming ownership was decreed by Trial Court. Appellate Court and High Court, however, in appeal and revision respectively dismissed appellant’s suit on the ground that civil Court lacked Jurisdiction on and that the matter in question was within exclusive Jurisdiction of Rev. Authorities. Validity. Both Appellate Court and the High Court had lost sight of the fact that under S. 114 (3) of Punjab Tenancy Act, 1887 as amended by Punjab Tenancy (Amendment) Act, 1952, relationship between parties as landlord and tenant was constituted till framing of rules by Government. Such rules were framed by the Government in 1953, therefore, on the date when impugned mutation was sanctioned by Rev. Authorities in the year 1960 and on date of filing of suit relationship of landlord and tenant between parties had ceased to exist, thus, bar of Jurisdiction of Civil Court to entertain any suit in respect of any dispute between landlord and tenant was no more available. Appellant’s suit was, thus, triable by Civil Court. Judgments of High Court in revision and that of Appellate Court were set aside. Case was remanded to Appellate Court for decision afresh on merits in accordance with law. P.L.J. 2001SC49.