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Civil Appeal No. 125 of 1972, decided on 12th October 1981.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 13‑7‑1971 in R. S. A. No. 554 of 1971).

(a) Constitution of Pakistan (1973)‑

‑‑ Art. 185(3)‑Leave to appeal‑New objection‑Objection raised before Supreme Court not taken in written statement consequently no issue framed on point nor any decision given‑Held : Too late to urge such point before Supreme Court in constitutional jurisdiction, hence, such point merits no consideration.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑

---Ss. 15 & 16, read with Punjab Pre‑emption Act (I of 1913), Ss. 4 & 6‑Pre‑emption‑Sale of land by confirmed allottee of evacuee agricultural land with permanent rights‑Held Pre‑emptible.

Rukan‑ud‑Din v. Ghulam Mustafa and another P L D 1970 Lah. 797 and Haji Sultan Muhammad and another v. Muhammad Siddiq and others P L D 1973 S C 347 ref

Q. M. Saleem, Advocate for Appellant.

Amjad Khan, Senior Advocate for Respondents

Date of hearing: 12th October 1981.

‑Leave in this appeal was granted to consider the question as to whether the sale of land which was confirmed in favour of the allottee, was pre‑emptible.

2. The appellant's mother, Mst. Raibi was a refugee from East Punjab and she allotted 14 acres of land in Mauza Virk, Tehsil Narowal, District Sialkot, which was later confirmed in her favour. She sold this land to respondents 1 to 4 by a registered sale‑deed con 3rd of October, 1964, for a sale consideration of Rs. 14,000. The appellant pre‑empted the sale of this land on 4th of October, 1965, by instituting a suit wherein she claimed to have a superior right as being her daughter vis‑a‑vis the respondents who were the strangers. They resisted the suit on various grounds that this land was not pre‑emptible and the issue was struck for giving a finding to the effect and the trial Court decreed the suit on 21st July, 1967, holding that Mst. Raibi has permanent rights in the land which were transferable. The first appellate Court, however, held otherwise and dismissed the suit on 18th of June, 1971, which finding was affirmed by the High Court on 13th of July, 1971 as it dismissed by its own appeal in limine. In deciding so, the High Court was guided by its own decision reported as Rukan‑ud‑Din v. Ghulam Mustafa and another (P L D 1970 Lah. 797).

3. Proceedings against respondents 1 to 4 were ex parte but on an oral request we allowed their counsel to contest the appeal. It is not disputed before us that Mst. Raibi was not a confirmed allottee of the land with permanent rights therein when the present sale was effected. What is disputed is that she had mortgaged rights in some land allotted to her which rendered it as non‑pre‑emptible in view of section 25 of the Displaced Persons (Land Settlement) Act, 1958. This objection was not taken in the written statement and for that reason no issue was struck and no finding was given. I is now too late in the day to urge this submission and therefore it merit no consideration; and as to whether the sale of such land is pre‑emptible, is finally concluded by a judgment of this Court in Haji Sultan Muhammad and another v. Muhammad Siddiq and others ( P L D 1973 S C 347). The first appellate Court and the High Court, on an erroneous assumption held the sale not to be pre‑emptible for the reason that the provision conferring permanent rights on an allottee was inserted after the sale of the land is not so for even in the un amended sections 15 and 16 of the Displaced Persons (Land Settlement) Act, 1958, such power was there. There is n evidence to sustain that permanent rights were not confirmed thereunder on Mst. Raibi who was a confirmed allottee of the land sold.

4. Accordingly, we would set aside the order of the High Court and allow the appeal with costs.

Appeal allowed.

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