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Civil Appeal No. 60 of 1969, decided on 20th April 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 20th October 1965, in Regular Second Appeal No. 851 of 1965).

Not immune from re-emption Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 15(3).

Raja Said Akbar Khan, Senior Advocate Supreme Court instructed by Wali Mohammad Khawaja, Advocate‑on‑Record (absent) for Appellants.

Jamil Hussain Rizvi, Senior Advocate Supreme Court instructed by Wajid Hussain Syed, Advocate‑on‑Record for Respondent.

Date of hearing : 20th April 1970.

‑Appellants are vendee‑defendants in the suit filed by the respondent to pre‑empt the sale of 48 kanals of land in village Kahi, district Gujrat, sold away by his father on 30‑7‑1960 for the sum of Rs. 11,000. The suit was resisted on the ground that the plaintiff had waived his right of pre‑emption by associating with the sale. Trial Court gave effect to the plea and dismissed the suit, but on appeal by the respondent the District Judge came to a contrary conclusion and decreed the suit. The High Court dismissed the second appeal preferred by the appellants affirming the finding that the respon dent had not waived his right of pre‑emption.

Leave to appeal was granted to consider the plea that as the land sold was evacuee property, Civil Court did not have the jurisdiction to entertain the suit. The plea was not raised in the written statement, but it was urged that the material already brought on the record was sufficient to decide the issue.

Raja Said Akbar appearing in support of the appeal drew our attention to the Jamabandi for the year 1956‑57 filed along with the plaint in which the Rehabilitation Commissioner, West Pakistan, is entered in the column of proprietors as owner of the land through Mohammad Hussain Shah, vendor, as an allottee of the land. This, however, does not make out that the land allotted to Muhammad Hussain Shah had not been permanently settled on him under section 15 (3) of the Land Settlement Act, 1958, before the sale was effected on 30th July 1960.

The plea that the land sold by Mohammad Hussain Shah to the appellants was included in the compensation pool and as such under section 6 of the Land Settlement Act it was immune from being "proceeded against for any claim in any manner whatsoever in execution of any decree or order by any process of Court or other authority" does not, therefore, hold good on the present record. In case the appellants had raised this objection in their written statement the plaintiff would have been in a position to show that the land was settled permanently on the vendor before the sale took place. There were provisions to that effect in 1959 Rules framed under section 15 (3) of the Act viz:

"7 . ............................... ..

(1) After the acquisition of the land under section 4 and the constitution of the Compensation Pool under section 5, the Assistant Settlement Commissioner of the area concerned, shall, except in the case of categories of land specified in proviso to subsection (3) of section 15,‑.

(a) cause a mutation of extinction of all evacuee right and interests in the entire estate to be entered and disposed of and the Central Government shall be substituted for the evacuee holders of rights in the estate ; and

(b) then cause separate mutations, to be entered incorporating the conferment of permanent rights on each person holding an allotment on the basis of the entries in register R. L. II, and mutation, of inheritance or transfer connected therewith, if any, and pass an order giving the details of the area with the particulars of the person concerned."

In the last column of the Jamabandi there is an entry regarding mutation No. 760 under which the name (presumably) of the Rehabilitation Commissioner was expunged. This lends support to the claim by the plaintiff that the suit land was permanently settled on his father before he effected the sale in favour of the defendants. This is also borne out by the admission in para. 1 of the written statement that Mohammad Hussain Shah, vendor, was the absolute owner of the land sold. In any case it cannot be said that though the appellants had failed to raise the plea that the land sold to them was evacuee property or had been included in the compensation pool, and as such was not subject to the incidence of pre‑emption to Courts below could decide the issue of the maintainability of the suit without proper pleadings on the point.

The appeal is in the result without any force and is dismissed hereby though without any order as to costs.

Appeal dismissed.

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