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Regular Second Appeal No. 967 of 1965, decided on 28th January 1970.
S. 6 read with Punjab Pre‑emption Act (I of 1913), Ss. 4 & 6 Property falling in compensation pool and allotted to claim ants‑---Not amenable to pre‑emption suit---‑Displaced Persons (Com pensation and Rehabilitation) Act (XXVIII of 1958), S. 7----‑[Sher Muhammad and others v. Azmat Ali P L D 1968 Lah. 1171 dissented from].
The scope of section 6, Displaced Persons (Land Settlement) Act, 1958 is extremely wide and extensive. There are no words limiting its scope and extent. The land forming part of the pool shall not be liable to be proceeded against for any claim" in "any manner whatsoever" in execution of "any, decree or order" by "any process" of Court or other authority. According to the marginal note, this section deals with the "Exemption of the Compensation pool from process." In the body, this section lays down that the land forming part of the pool shall not be liable to be "proceeded against" in execution of a decree or order by any process. According to Wharton's Law Lexicon, the term "process" is largely taken for all the proceedings in any action or prosecution, from the beginning to the end; strictly it means the summons by which one is cited into a Court, because it is the beginning or principal part of, by which the rest is directed" Similarly according to the Shorter Oxford English Dictionary "proceed" means to go, move or travel forward. It also means to go with an action. In a corresponding provision, in section 7 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it is laid down that no property forming part of the compensation pool shall be liable to be proceeded against in execution of any decree or order or "by any other process" of Court or other authority. This clearly means that the jurisdiction of a civil Court is completely barred from issuing all and any of the process against a properly in the pool. These two sections are pari materia with each other. By entering upon a suit with respect to a property in the compensation pool, the Court is in effect proceeding against it. In the context of section 6 of the Act, the expression, "execution of a decree or order," has to be liberally construed in the ordinary‑dictionary meanings and not in the technical sense of Order XXI of the Code of Civil Proce dure, 1908.
A Court was altogether precluded from proceeding by any process, against any property forming part of the compensation pool for any claim in any manner and section 6 of the Displaced Persons (Land Settlement) Act, 1959 debars all suits against the property. To this extent the jurisdiction of the civil Court is expressly barred under the law.
A suit for pre‑emption envisages a decree for possession of the land. It is accompanied by all the usual incidents for its execution through the process of Court. The suit is an important step in the process towards the recovery of the possession of the property and there is no other method available under the law for the substitution of the name of the pre‑emptor for that of the vendee through Court.
Regular Second Appeal No. 25 of 1962; Babu Ali Muhammad v. Mahmood‑ul‑Hassan P L D 1968 Lah. 329; Rahim Bakhsh v. Ch. Ahmad Din and others P L D 1964 S C 189; Dev Chand Muljimal v. The Deputy Settlement and Rehabi litation Commissioner and others P L D 1965 S C 356; A. R.
Niazi v. Pakistan and others P L D 1968 S C 119 and Nur Muhammad and others v. B. Muhammad Ibrahim P L D 1954 Lah. 240 ref.
Sher Muhammad and others v. Azmat Ali P L D 1968 Lah. 1171 rel. partly.
Mst. Rup Devi v. Matawal Chand P L D 1968 Lah. 800 rel.
Sher Muhammad and others v. Azmat Ali P L D 1968 Lah. 1171 dissented from.
Ch. Muhammad Siddiq assisted by Rao M. Yousaf Khan for Appellant.
Nemo for Respondent No. 1.
Ch. Hameed‑ud‑Din for Respondent No. 2.
Date of hearing: 14th October 1969.
This is a plaintiff's regular second appeal against the judgment and decree dated the 1st of October 1965, passed by the District Judge, Mianwali, arming the decision by the trial Court in dismissing his suit against the defendants -respondents.
2. The brief facts are that the land in dispute measuring 29 kanals and 11 marlas situated in the estate of Chhorwala Shamali, Tehsil and District Mianwali, was evacuee‑property. It was allotted and confirmed to one Siraj Din on quasi‑permanent basis under the West Pakistan Rehabilitation Settlement Scheme. Afterwards he sold away his right, title and interest in the land to the two respondents, Ghulam Mustafa and Fakhur‑ud‑Din, for Rs. 5,000.00 and a mutation was attested in their favour by the Revenue Officer on the 14th of February 1969. On the 9th of July 1964, Rukun‑ud‑Din, appellant, brought a suit against the respondents for the possession of the land by pre‑emption on payment of Rs. 1,475.00 or the amount fixed by the Court. The defendants, vendees, resisted the suit on a number of grounds: In their written statement they have inter alia alleged that the sale by Siraj Din of his rights, as an allottee of the evacuee land, was not at all pre‑emptible and the suit of the plaintiff was altogether barred. On the pleadings of the parties the trial Court framed the following issues for determination:‑
(1) Whether the plaintiff has got the right to pre‑empt the sale
(2) Whether the sale in dispute is pre‑emptible
(3) Whether a sum of Rs. 5,000.00 was fixed in good faith or paid as the sale price of the land in suit
(4) If issue No. 3 is not proved, what was its market value at the time of the sale
(5) Whether the description of the property given in the plaint is incorrect and what is its effect
(6) Relief
3. After the evidence led by the parties, the learned Administrative Civil Judge, 1st Class, Mianwali, dismissed the suit of the plaintiff on the 19th of May 1965. He found in his favour on issue No. 1 holding that the pre‑emptor being a real brother of the vendor, has a superior right of pre‑emption. But on issue No. 2 the Court was of the opinion that Siraj Din, vendor, at best, was only a provisional permanent allottee of the land at the time of the sale and the transfer of those rights did not constitute a sale of the land, within the meaning of section 4 of the Pre‑emption Act. As such it was not pre‑emptible under the law. The defendants did not adduce any evidence on issue No. 3 found against them. However, on issue No. 4, the Court assessed the market value of the land in suit at Rs. 591.00 only. Issue No. 5 was held against the defendants. But as a result of the findings by the trial Court, on issue No. 2, the suit of the plaintiff was dismissed. These findings were upheld on appeal filed by the plaintiff‑respondent, which was rejected by the learned District Judge, Mianwali on the 1st of October 1965.
4. In this appeal before us the parties did not challenge the findings by the two Courts below on issues Nos. 1, 3, 4 and 5. The learned counsel for the plaintiff‑appellant has, however, confined his attack against the findings on issue No. 2 only. It is common ground between the parties that Siraj‑ud‑Din was merely a quasi‑permanent allottee of the land in suit under the Rehabilitation Settlement Scheme. By the time of the sale in question, on the 4th of February 1964, the land was not yet permanently settled on him under section 15(3) of the Displaced Persons (Land Settlement) Act, 1958. The learned District Judge, in relying on the unreported judgment in Regular Second Appeal No. 25 of 1962; delivered by a learned Single Judge of this Court, was of the opinion that the assignment of the rights of an allottee in the land did not tentamount to a sale of the land pre‑emptible under the law. But in this connection a Full Bench of this Court in Babu Ali Muhammad v. Mahmood‑ul- Hassan (P L D 1968 Lah. 329), has authoritatively held that although the sale of the interest of a confirmed allottee in land is pre‑emptible under sections 4 and 6 of the Pre‑emption Act, yet section 16 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957), was a complete bar to the suit for possession to enforce this right in a civil Court and no Court or authority could pass any order of whatever kind with respect to the evacuee property. In other words the jurisdiction of the Court was expressly ousted in the matter.
But in this connection the learned counsel for the plaintiff- appellant has pointed out that the land in suit has already ceased to be evacuee property and was now vested in the Central Government for, the purposes of the compensation pool. Conse quently, section 16 of the Pakistan (Administration of Evacuee Property) Act III was no longer applicable to debar this suit relating to the land that has ceased to be evacuee property. By virtue of the West' Pakistan Government Notification No. 1376‑RR/4R‑59 dated the 15th of April 1959, issued under subsection (2) of section 4 of the Displaced Persons (Land Settlement) Act, 1958 the evacuee land situated in this Province was acquired by the Government for the purposes of the Act. In this connection, subsection (3) of section 4 expressly lays down that on the publication of the notification under subsection (2), the right, title and interest of any evacuee shall, with effect from the date of such publication, be extinguished and the land shall vest wholly and absolutely in the Central Government free from all encumbrances. Thereby these lands have altogether ceased to be evacuee property, as held in Rahim Bakhsh v. Ck. Ahmad Din and others (P L D 1964 S C 189), Dev Chand Muljimal v. The Deputy Settlement and Rehabilitation Commis sioner and others (P L D 1965 S C 356), A. R. Niazi v. Pakistan and others (P L D 1968 S C 119) and the reported cases to the contrary do not lay down good law. This matter was recently discussed at length by a learned Single Judge of this Court in Sher Muhammad and others v. Azmat Ali (P L D 1968 Lah. 1171), and we have no hesitation in respectfully endorsing his opinion to that extent.
6. In accordance with the above, the land in dispute had ceased to be evacuee property both on the date of the sale on 4‑2‑1962 and of this suit on 9‑7‑1964 and has formed a part of the compensation pool under section 5 of the Displaced Persons (Land Settlement) Act, 1958. But the question that still remains to be seen is as to whether this suit was at all barred under section 6 of the Act with respect to this property in dispute in the compensation pool. This section is reproduced below :‑
"Nothing which forms part of any of the compensation pools constituted under section 5 shall be liable to be proceeded against for any claim in any manner whatsoever in execution of any decree or order by any process of Court or other authority."
The scope of this section is extremely wide and extensive. There are no words limiting its scope and extent. The land forming part of the pool shall not be liable to be proceeded against for "any claim" in "any" manner "whatsoever" in execution of "any decree or order" by "any process" of Court or other authority. According to the marginal note, this section deals with the "Exemption of the Compensation pool from process." In the body, this section lays down that the land forming part of the pool shall not be liable to be "proceeded against" in execution of a decree or order by any process. According to Wharton's A Law Lexicon, the term "process" is largely taken for all the proceedings in any action or prosecution, from the beginning to the end ; strictly it means the summons by which one is cited into a Court, because it is the beginning or principal part of, by which the rest is directed." Similarly according to the Shorter Oxford English Dictionary "proceed" means to go, move or travel forward. It also means to go with an action. In a corresponding provision, in section 7 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it is laid down that no property forming part of the compensation pool shall be liable to be proceeded against in execution of any decree or order or" by any other process" of Court or other authority. This clearly means that the jurisdiction of a civil Court is completely barred from issuing all and any of the process against a property in the pool. These two sections are pari materia with each other. By entering upon a suit with respect to a property in the compensation pool, the Court is in effect proceeding against it. In the context of section 6 of the Act, in our opinion the expression, "execution of a decree or order", has to be liberally construed in the ordinary dictionary meanings and nor in the technical sense of Order XXI of the Code of Civil Procedure, 1908. In interpreting a somewhat similar phrase occurring in section 3(5) of the Punjab Pre‑emption Act 1 of 1913, a Full Bench of five Judges of the High Court of Lahore, in Mst. Rup Devi v. Matawal Chand (P L D 1968 Lah. 800), has held as under :‑
"The word execution' employed in this section should be liberally construed and should be given its ordinary dictionary meaning and if that meaning is given to this word in the sub‑clause, the decision of the points referred to the Full Bench is capable of an easy answer. In Murray's New English Dictionary, one of the meanings given to the word execution' is, the action of carrying into effect (a plan, design, purpose command, decree task, etc.). Another meaning given is the enforcement by the sheriff, or other office of the judgment of a Court' ; the obtaining of actual possession of anything acquired by judgment of law' ; chiefly, the siezure of the goods of person of a debtor in default of payment'. If the word execution' is given this meaning in sub‑clause (5) of section 3, then it leads to the conclusion that a sale in pursuance of', in carrying into effect', or revenue Court, or of Revenue Officer falls within the purview of this sub‑clause and is exempt from the exercise of the right of pre‑emption. The word execution' employed in section 3(5) of the Punjab Pre‑emption Act should be given its normal dictionary meaning and should not be read in any technical or limited sense whatsoever."
In our opinion, it follows from the above discussion that a Court was altogether precluded from proceeding by any process, against any property forming part of the compensation pool for any claim in any manner and section 6 of the Displaced Person (Land Settlement) Act, 1959 debars all suits against the property, To this extent the jurisdiction of the civil Court is expressly barred under the law.
7. But in this connection the learned counsel for the appellant has strongly relied on the judgment by a learned Single Judge of this Court in Sher Muhammad and others v. Azmat Ali. This is to the effect that section 6 of the Displaced Persons (Land Settlement) Act, 1959 did not oust the jurisdiction of a civil Court to entertain a suit for pre‑emption with respect to the land included in the comensation pool. We have given our careful thought to this case, but with profound respect and due deference we are unable to agree with its ratio. In that case in interpreting this section it was observed that :‑
"The intention behind the provision appears to be that the compensation pool should be rendered immune from all legal processes including the execution of a decree or an order. The evacuee property which is acquired under section 4 of the Act constitutes the compensation pool. The pool is meant for the specific purpose of the Act and it is with a view to achieving this object that it was considered necessary to provide against a situation which may adversely affect the pool or to diminish it. A person may have an enforceable claim against a person having a legal right in the property in the compensation pool, but he cannot, due to the bar created in section 16 (this appears to be a typographical instance for section 6 of the Act) enforce his claim against the said property."
So far so good and there is no quarrel with the interpretation of the section. But the learned Single Judge has further added that :‑
"Section 16 (should be section 6), however, does not prohibit a suit to be filed in respect of any right whirs a person may claim in the said property. In case a dispute arises between the parties as to their respective rights in the property, the dispute can certainly be resolved in a civil Court because in such a case i: will not be the property which is proceeded against for any clame but it will be only an adjudication as to the rights of the parties in respect of the property. The adjudication of such rights will, in no way effect the compensa tion pool. It is competent for the allottee of the land which is in the compensation pool, to transfer it. Notwithstanding such transfer, the property continues to remain in the compensation pool. The pre‑emptor when he files the suit to pre‑empt, he is in no way proceeding against the land in the compensation pool for any claim, but only wants to be substituted in place of the vendee. Section 6, therefore, is no bar to the institution of such a suit."
In Nur Muhammad and others v. B. Muhammad Ibrahim (P L D 1954 Lah. 240), the Court was of the opinion that a suit to pre‑empt with respect to the evacuee property was competent. But that case was expressly overruled by the Full Bench in Babu Ali Muhammad v. Mahmood‑ul‑Hassan on the interpretation of section 16 of the Pakistan (Administration of Evacuee Property) Act XII of 1957. A suit for pre‑emption envisages a decree for possession of the land. It is accompanied by all the usual incidents for its execution through the process of Court. The suit is an important step in the process towards the recovery of the c possession of the property and there is no other method available under the law for the substitution of the name of the pre‑emptor or that of the vendee through Court. As discussed above the filing of this suit does tantamount to proceeding against the property in the compensation pool. We are to respectfully differ with this view of the matter taken by the learned Single Judge.
8. For the foregoing reasons discussed above this appeal has no force and is dismissed with costs.
A. E. Appeal dismissed.
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