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---Ss. 15 &; 16---Civil Procedure Code (V of 1908), S. 100--Plaintify though was not a co-sharer in suit property yet that would not tell adversely on his success for he was entitled to succeed on bass of relationship---Issue of relationship concluded by concurrent findings of fact which was honestly and correctly arrived at--No fallacy in appreciation of evidence by Courts below found--High Court declined to differ with Courts below in second appeal in circumstances. ,

(b) Constitution of Pakistan (1973)--

---Art. 23--Punjab Pre-emption Act (I of 1913), . Ss. 15 & 16- Fundamental rights--Reasonable restrictions--Determination--Law of pre emption does not impose restriction on right of vendee to acquire and hold property and right of vendor to dispose of his property.

In determining whether a particular thing is reasonable the Court is called upon to consider the question of right and wrong, justice and fairness. What is reasonable is not necessarily the best but what is fairly appropriate to the purpose under all the circumstances of the case. An act is reasonable when it is conformable or agreeable to reason, that is when commonsense is applied to the whole situation it is not illegitimate in view of the end to be obtained. An act is unreasonable when it is plainly and grossly oppressive and contrary to reason. "Reasonableness" is not what extremist on one side or the other would deem fit and fair but is what from the calm sea level of common sense applied to the whole situation is not illegitimate in view of the end to be attained" Through the pre-emption places restrictions on the right of the vendor to dispose of his property had the vendee to hold and acquire it, yet these restrictions are not only reasonable but are in the public interest also. The structure and characteristic of the society which necessitated the introduction of a right of pre-emption as a part of the law, had not materially changed so as to obviate the necessity of the law of pre-emption altogether. Pre-emption, therefore, does not offend the fundamental right of a citizen to acquire, hold and dispose of his property.

There can be little doubt that law of pre-emption imposes restrictions on the right of the vendee to acquire and hold property and the right of the vendor to dispose of the property. It limits the power of the vendor to sell his property to whomsoever he may please or to any one to whom he may wish to sell.

It has been described as a clog on the freedom of sale and tends to diminish the market value of the property. Pre-emption was not violative of the aforesaid fundamental right.

The object behind pre-emption in villages is to protect the village against the instruction of strangers who otherwise may obtain a footing in it contrary to the wishes of the community who are bound together by ties of class, kinship/ descent. Precisely, law of pre-emption as it obtains in Punjab, helps in checking out the persons who are stranger to the compact village community so as to break its homogeneity against disturbance. The conditions of villages which necessitated the application of law of pre-emption had not materially changed so as to urge that the basis of the law no longer existed.

Atma Ram v . Devi Dayal 49 P R 1901; Raja Ram v Bansi I L R 1 All. 207; Qaim Din v. Said Ahmad and another P L D 1967 Lah. 1171; Allah Ditta v . Fat.eh Khan and others P L D 19711 Lah. 168 A I R 1960 Punj. 196; Allah Data v. Fateh Khan and other. P L D 1970 Lah. 168; Siddique Khan v. Abdul Shakoor Khan 1' 1, f) 1984 S C 289; Gobind Dayal v. Inayat Ullah I L R 7 All. 775 anc. Sardha Ram - Kanhya Lal v. Haji Abdul Majid Muhammad Amir Khan and others A I R 1960 Punj. 196 ref.

Malik Muhammad Jaffar for Petitioner,

Sh. Zamir Hussain for Respondent.

Date of hearing: 31st May, 19ft6.

Rehmat Jan, appellant was defendant in the suit brought by Tariq Mahmood to pre-empt sale of property made by Muhammad Akram. Facts in brief are: Muhammad Akram son of Allah Yar, Awan by caste, resident of Kotha Kalan, Tehsil Attock, was owner of some property (hereinafter called suit property) consisting of 24 Kanals. 11 Marlas. Khasras 531, 536, 551. situate at Mouza Kotha Kalan. Tehsil Attock On 1-1-1971, suit property was sold by him to Rehmat Jan for Rs.10,000 Sale was evidence by a registered deed Tariq Mehmood, as a residuary and co-sharer in the suit property pre-empted the sale and brought a suit on 23-12-1971, in the Court of Civil Judge, Campbellpur. Pre-emptor offered to pay Rs.6,000 for the suit property and as regards the rest alleged that it was a false show of payment. Vendee contested the suit and pleaded that suit property was bona fide and in good faith purchase by her for a sum of Rs.10,000 which was also its market value. Plaintiff's right to pre-empt was denied and it was claimed that the vendor belonged to the Shia sect.

On pleadings, Court framed the following issues:-

(1) Whether the plaintiff has superior pre-emptive right O . P . Y

(2) Whether the sum of Rs.10,000 was actually paid or fixed in good faith O . P . D .

(3) What is the market value of the suit land O.P.P.

(4) Relief."

As the plaintiff was a minor, suit was instituted by him through one Fazal Alam, his next friend. For the plaintiff, aforesaid Fazal Alan appeared and deposed about plaintiff's relationship with the vendor Reliance was placed on copy of Jamabandi for the year 1968-69, Exh P.1, Genealogical Tree consisting of two leaves Exh. P. 2, copies o Mutations 929, Exh. P.3, 1463 Exh. P. 4, 1541 Exh. P. 5, and, evidence was closed. In defence, Khan, real brother of Mst. Ahmed Jan appeared as D.W. 1 and was supported by the statement of Sher Khan D.tn' 2

Defence also relied on copy of Genealogical Tree Exh. D. 2 and original sale-deed Exh. D. 1, was also put in evidence. Learned Judge of the trial Court, on examination of the evidence, found that plaintiff had superior right of pre-emption. As regards sale price, it was held that a sum of Rs.10,000 in the sale-deed was actually paid to the vendor. Issue of market value, therefore, was left undetermined. With these conclusions, plaintiff's suit was decreed in his favour on 22-5-1972, subject to payment of Rs.10,000 which the plaintiff was directed to deposit in Court before 22-6-1972. Aggrieved of the decision, vendee preferred an appeal to the District Court which having been dismissed on 19-9-1972, has brought him to this Court in second appeal.

On behalf of the appellant, it is contended that plaintiff had failed to prove his better right and that the Courts below were erroneous in finding that he had such a right. It was also urged that statutory law of pre-emption as in force in Punjab imposed unreasonable restrictions on the right to acquire, hold and dispose of property. Restrictions imposed were neither reasonable nor in the public interests. Punjab Pre-emption Act in the opinion of counsel offended fundamental right of every citizen to acquire, hold and dispose of his property according to his own choice and free volition. With the revival of the constitutional provisions, sections 15 and 16 of the Punjab Pre-emption Act, which laid down the rules of priority amongst the pre-emptors and vendees, cannot be allowed to stand.

On behalf of the respondent, it was argued that findings of the Courts below arrived at, on plaintiff's right to pre-empt, had adequate support of the recorded evidence. It was also urged that this appeal was concluded by a concurrent finding of fact and it was not open to the appellant to successfully contend about the adequacy of evidence to support the finding of fact. Learned counsel argued that plaintiff was proved to be related to the vendor and in case of Tatters death was, in order of succession, entitled to succeed, and, therefore, was possessed of a better right in relation to the vendee, an outright stranger. Further submitted that pre-emption, which, in Punjab, was regulated by statute law, neither infringed fundamental right to hold, acquire and dispose of property nor can it be said that pre;-emptior placed unreasonable restrictions on the aforenoticed right or that the restrictions imposed were not in public interests. With these submissions, impugned decisions were supported by the respondent. It clearly comes out that this appeal urges two points: first is as to the plaintiff's right to pre-empt the sale of suit property, and, second, whether the provisions contained in section 15 of the Punjab Pre-emption Act, 1913 were ultra vires of the provisions of Article 23 of our Constitution. ,I propose to deal with the points seriatim. Superior right was supported by Fazal Alam, P.W. 1, who deposed that plaintiff was a residuary of the vendor and the common ancestor of both was one Salabat. It was further deposed that Salabat had three sons, namely, Azeem Ullah. Saad Ullah and Muhammaday. Vendor of the suit property was progen%of Azeem Ullah, whereas the pre-emptor was descendant of Saad Ullah Statement as to relationship of the plaintiff with the vendor could not be shaken so as to discredit the witness. Khan, P.W. 1 was real brother of Rehmat Jan. It is correct that in examination-in-chief, he denied that plaintiff was a collateral of the vendor but in cross examination was constrained to concede the correctness of the relationship between vendor and the vendee as given out by Fazal Alam, a next friend of the minor plaintiff. It was expressly stated by him that Tariq Mehmood was son of Abdul Qayyum, whose paternal-grandfather was one Ali Gohar. It was also admitted by him that Saad Ullah and Azeem Ullah were brothers and were sons of Salabat. Witness further conceded that Muhammad Akram was descendant of Salabat and Saad Ullah was the ancestor of the plaintiff Tariq Mehmood. Statement made by D.W. 1 lends considerable support to the statement of P.W. 1. Copy of pedigree tables and mutations also support the plea of the plaintiff as regards his relationship with the vendor. It may be noticed that Khan, though brother, of defendant-vendee yet was not her properly constituted attorney. From the record it transpires that defendant herself did not bother to enter the witness-box to make statement in her support and to subject herself to cross-examination. Contention that the vendee was not bound by the concession offered by her brother, with respects, cannot be accepted, particularly when note is taken of the fact that she withheld herself from appearing before the Court. Malik Muhammad Jafar, Advocate, for the appellant contended that statement of Fazal Alam was merely an opinion-evidence and the opinion expressed did not conform to requirements of law of evidence so as to treat it as "evidence" to prove relationship. I have failed to discover force in this contention. When the statement of the plaintiff is examined in juxtaposition with the statement of D.W. 1 and the entries of pedigree table and mutations, it comes out clearly that plaintiff had substantiated his relation with the vendor and thus had a better right in relation to the vendee who was admittedly a total stranger to the family. Both the learned Judges of the Courts below, have on this evidence, found for the plaintiff, and, in my opinion, they were not wrong in coming to the aforesaid conclusion. Right to pre-empt found in favour of the plaintiff was supported by the record and the contention that the plaintiff had no such right was wholly without substance. Additionally, issue of relationship was concluded by a concurrent finding of fact which finding, in my judgment, was honestly and correctly arrived at. There appears to be no fallacy in appreciation of evidence by the Courts below. Accordingly, I see no adequate ground to differ with the view of the two Courts. However, it is correct that the plaintiff was not a co-sharer in the suit property but this does not tell adversely on his success, for, he is entitled to succeed on the basis of relationship.

As to the second point, whether the law of pre-emption imposes restrictions on the right to acquire, hold and dispose of property and if so whether the restrictions were in the public interests the issue can best be resolved with reference to the nature of the right of pre-emption, its origin and the object behind it. As the case pertains to the sale of agricultural land situate in a village, I shall confine my discussion to the pre-emption in regard to the sale of agricultural land only and the rules of priority given in section 15 of the Punjab Act I of 1913. Section 15 of the Punjab Pre-emption Ac% laid down the priority ,amongst the pre-emptors and vendees. Section 15 concerns agricultural land and village immovable property, while section 16 provides for pre-emption in respect of urban immovable property and the persons entitled to exercise the pre-emption right. Article 23 of the Constitution declares that every citizen shall have the right to acquire, hold and dispose of properties in any part of Pakistan subject to the constitution and any reasonable restrictions imposed by law in the public interest. This article of the constitution imposes an obligation on the Court to enquire whether there has been an arbitrary interference with the protected rights of property and further whether the interference was unreasonable or against the public interest. Right of ore-emption has been defined in section 4 of the Act which runs as follows.

"The right of pre-emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosures of the right to redeem such property."

Section 15 deals with the persons in whom the right (if pre-emption vests in respect of sale of agricultural land and village immovable property. Priorities amongst various classes have been given in the aforenoticed section. As observed above Pre-emption Act has made classification of the pre-emptible properties on the basis of agricultural land and village immovable property as a separate subject and urban immovable property separately as a separate subject falling within the scope of section 16. The classification is understandable in this that the former is different on the basis of the right of pre-emption in the latter case. Without, entering into the elaborate discussion on the origin of right of pre-emption which is not relevant for our present purpose, it can straightaway be observed that there can be little doubt that law of pre-emption imposes restrictions on the right of the vendee to acquire and hold property and the right of the vendor to dispose of the property. It limits the power of the vendor to sell his property to whomsoever he may please or to any one whom he may wish to sell. In Atma Ram v. Devi Dayal 49 P It 1901; it has been described as a clog on the freedom, of sole and tends to diminish the market value of the property. In Raja Ram v. Bansi I L R 1 All. 207, the learned Judges from the Allahabad High Court took notice of the trials and tribulations of a person whose property was governed by the law of pre-emption in the following words.

"Except under the pressure of necessity, land owners, rarely part with their landed property. It is, therefore, of the utmost moment to them to obtain its fair value and without; unreasonable delay. Now, in a village held by a number of co-sharers it is almost impossible to obtain within reasonable time from every co-sharer an explicit refusal of an offer of sale or such evidence of the refusal as will thereby be incontrovertible. Not frequently when a co-sharer desires to sell his share and in fulfilment of the stipulation offers it to his co-sharer, some one or more of them will neither explicitly accept nor decline the offer, but haggle to obtain it at a price far below its value. When the patience of the seller is exhausted or the urgency of his need no longer permits delay, he is driven to effect a sale with a stranger, which is followed after the longest delay allowed by law by the institution of one or more suits to enforce the right i of pre-emption. The stranger, aware of the risk to which his purchase is exposed either at once takes account of it by offering less than .the property ought to fetch if it could be so. free from the risk, or retains a portion of the purchase money until it be seen whether the sale is contented, or if contested, the result be known. Fictitious considerations are entered in the sale-deed, fictitious payments made before the registering receipts executed, and wholesale .perjure committed on the one side or the other when the Courts come to enquire into the prices actually paid."

Material issue is whether these restrictions are reasonable and are also in the public interest. In two decisions of this Court viz. Qaim. Din v. Said Ahmad and another P L D 1967 Lah. 1171 and Allah Ditta v. Fateh Khan and others P L D 1970 Lah. 168; the nature of pre-emption, its vires in relation to fundamental right to acquire, hold and dispose of property, was exmained and it was found that pre-emption was not violative of the aforesaid fundamental right. Bhandari, C.J. in A I R 1960 Pb. 196, when examined the issue observed:-

"What is reasonable is primarily for the decision of the legislature and ultimately for that of the Court. It the Court is satisfied that the restriction is reasonable it should have no difficulty in upholding the validity of the statute. If it is in doubt whether the restriction is or is not reasonable the Court must defer to the Legislative wisdom and resolve the doubt in favour of the validity of the statute. If, however, the Court comes to entertain the view that the restriction is unreasonable beyond a reasonable doubt or if it is satisfied that the statute is manifestly in contravention of the Constitution it would plainly be the duty of as the Court to interfere."

The object behind pre-emption in villages is to protect the village against the intrusion of strangers who otherwise may obtain a footing to it contrary to the wishes of the community who are bound together by, ties of class, kinship /descent. Precisely law of pre-emption as it obtains in Punjab, helps in checking out the persons who are strangers to the compact village community so as to break its homogeneity against disturbance. The conditions of our villages which necessitated the application of law of pre-emption had not materially changed so as to urge that the basis of the law no longer existed. In Qaim Din's. case, Karam Elahi Chauhan, J. , an eminent Judge of this Court on the nature of pre-emption observed:-

..An examination of the provisions of section 15 of the Pre-emption Act shows that the abovementioned is the sole object of the law of pre-emption and it cannot be said that this is an object which is not in the public interest. On the other hand, the preservation of a homogeneous village community is undoubtedly in the interest of general public and it is clearly a reasonable restriction, for it has existed for many years and its extent is just sufficient to achieve the aims in view. Under section 15, the right of pre-emption has been given in the first instance to the descendants of the vendor in the order of succession, then to the co-sharer who are agnates in order of succession and fourthly to the co-sharers. Failing these, the right vests in inferior or superior proprietors, when the land is sold to superior or inferior proprietors, respectively, then in the owners of the Patti, the owners of the estate, and the tenants and finally in the occupancy tenants. The sole object o this legislation is to preserve the homogeneity of the village community and to prevent fragmentation of holdings. The terms of section 15 do not go beyond the object aimed at and the restrictions imposed arc just sufficient to achieve the interest of general public in the way indicated above. Punjab State v. Inder Singh and others A - R 1953 Pb. 20. In Sayed Sayeed-ud-Din Ahmad v. Haji lunus Mia A I R 1942 Lah. 102; the object of Muhammadan Law of Pre-emption was described as:-

"to prevent the inconvenience which may result from the introduction of disagreeable stranger as a co-parcener or as a near neighbour. It is based on the ground of convenience and its object is to prevent possible vexation arising from disagreeable neighbour."

The issue whether pre-emption was violative of fundamental rights 5 and 13 guaranteed by Constitution, 1962 also feel for consideration before this Court in the case of Allah Ditta v. Fateh Khan and others P I. D 1970 Lah. 168; and the Court expressed the following view:

..I need not have considered this aspect of the case since Fundamental Rights have been taken away by clause (3) of paragraph 2 of the Provisional Constitution Order, 1969. but in the instant case the suit was filed when Fundamental Rights were in existence. Right to sue will naturally come under cloud if the vires of the Act is challenged. First Amendment to the Constitution was made on the 10th of January, 1964 and the suit was instituted on the 30th of November, 1964. Learned counsel submitted that the suit was not maintainable when it was filed, though at the time of passing the decree, i.e. 24^th of September, 1965, the Fundamental Rights had been superseded by the declaration of Emergency by the President on the 6th of September, 1965. Despite this plea had vanished when the suit concluded, yet I would like to examine this question in the light of the provisions of our own Constitution:-

'Fundamental Right 5.--Freedom of movement:

Subject to any reasonable restrictions imposed by taw in the public interest every citizen shall have the right to move freely throughout Pakistan and to reside and settle in any part thereof. Law of pre-emption according to the learned counsel is a clog in the settlement of an individual in a place of his own choice and 'settlement' according to him includes right to hold property in that party. The very paragraph begins with "subject to any reasonable restriction imposed by law in the public interest". It, therefore, provides that reasonable restrictions can be imposed even on the movement and settlement of an individual. . The Pre-emption Act does not bar coming to that village of an individual who does not own property in that estate. However, it only creates restrictions on him to buy property in that particular area in preference to another person. He can buy provided nobody objects to his purchase and it cannot necessarily be presumed that every sale will be challenged. The right of challenge may or may not be exercised by the owners in that estate Moreover-, does not mean that the vendees intend to settle in the estate where they have purchased land. They are residents of two different villages away from the estate of village Bhago where the property is situated. It, therefore, cannot be said that restriction has been imposed on their settlement in village Bhago: only, preferential right to purchase land is available to the plaintiff. Such preference cannot be held to be unreasonable restriction against public interest in order to keep the village community a compact society. Learned counsel further submitted that this kind of society should no more be in existence in Pakistan after Independence. The displaced persons a new society has been introduced in the village and in any case the village community no more remains a compact society of the pre Independence period. The right of pre-emption is available to the owner in the estate and if the new settler, who by operation of law has become the owner in the village intends to sell his property, surely it cannot be said that he is a loser if the local inhabitants of the Chak have the preferential right to acquire All that he is interested in is the market price, of the land which the pre-emptor has to pay it' he wants to pre-empt the land sold by the transferee under the Displaced 1tt Persons (Land Settlement) Act, 1958.

Fundamental Right 13 deals with property rights which is reproduced as under:-

'13. Provision as to property. ---Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to acquire, hold and dispose of property.

Learned counsel says that the restriction imposed by the Pre emption Act on the sale and purchase of the property cannot be said to be in public interest. He submitted that in Muslim Society everybody should be free to buy and sell the property. Learned counsel seems to have lost sight while making this submission to the fact that law of pre-emption is recognized by Muslim Jurist and in fact the Muslim Rulers brought this law with them and enforced it in Indo-Pakistan Sub-Continent, which acquired the nature of 'custom' in the non-Muslim society. Such restrictions therefore, cannot be declared against public interest. It is surely in public interest to keep intact the family life of Muslims and restrictions on sale and purchase of houses, lands and groves cannot he held as unreasonable and against public policy, more especially when their origin can be traced to a Hadith by Jaber with which I will deal at a later stage.

A co-sharer has only to give notice to the other co- sharer that he intends to sell his share in the property. 1f he is interested, he may buy. If he does not intend to purchase and the property is sold within his knowledge to some outsider, he cannot later come round and challenge the sale. In these circumstances, to my mind it cannot be said that obligation of making an offer to the eo-sharer for the purchase of property intended to be sold is unreasonable when he has to pay market value as its price if he so chooses to buy it. I have already 'dealt with regard to the so-called restriction on acquisition of property by an outsider in the preceding paragraph. Suffice it to say such an outsider will come next in the line to purchase it and he cannot be debarred altogether, because every sale is not necessarily to be pre-empted by the co-sharers or the local land-holders in the estate. He can, therefore, acquire and hold property in an estate subject to the above restriction which cannot be considered to be unreasonable."

In Siddique Khan v. Abdul Shakoor Khan P L D 1984 S C 289 their lordships of the Supreme Court of Pakistan expressed approval of the following observation of Mahmud, J. in Gobind Dayal v. Inayat Ullah I L R 7 All. 775:-

. . . Upon the present occasion it is unnecessary to consider whether 'gift' can properly be described as a 'religious usage or institution within the meaning of section 24, 1 am here concerned only with the question whether pre-emption can be so described. My own opinion is that it can, and although I cannot add much to the reasons given by Spankie, J. I may observe that pre-emption is closely connected with the Muhammadan Law of inheritance. That law was founded by the Prophet upon republican principles, at a time when the modern democratic conception of; equality and division of property was unknown even in the most advanced countries of Europe."

In Sardha Ram, Kanhya Lal v. Haji Abdul Majid Muhammad Amir Khan and others A 1 R 1960 Pb. 196; on "reasonable restrictions Bhandari, C.J. was of this view "Now, what exactly is the meaning of the expression "reasonable restrictions" appearing in Article 19 of the Constitution It is not easy to define the expression "reasonable" and the Courts are usually reluctant to define it, but it may be said that a thing is reasonable when it is conformable to reason, when it is rational, fitting or proper, when it is sensible. The expression is sometimes used to express that which is appropriate and necessary, that which is ordinary and usual under the circumstances of the case. There is a close relation between the words "customary", "usual" and "reasonable''., In determining whether a particular thing in reasonable the Court is called upon to consider the question of right and wrong, justice and fairness. What is reasonable is not necessarily the best but what is, fairly appropriate to the purpose under all the circumstances of the case. An act- is reasonable when it is comfortable or agreeable to reason, that is when commonsense is applied to the whole situation it is not illegitimate in view of the end to be obtained. An Act is unreasonable when it is plainly and grossly oppressive and contrary to reason. "Reasonableness" is not what extremist on one side or the other would deem fit and fair, but is what from the calm sea level of common sense applied to the whole situation is not illegitimate in view of the end toy be attained." -In my opinion which I have formed after examination of the various provisions of the Pre-emption Act and also the object behind it, I have no hesitation in saying that through the pre-emption places restrictions on the right of the vendor to dispose of his property and the vendee to hold and acquire it, yet these restrictions are not only reasonable but are in the public interest also. The structure and characteristic of the society which necessitated the introduction of a right of pre-emption as a part of the law, had not materially changed so as to obviate the necessity of the law of pre-emption altogether. Pre-emption, therefore, does not offend the fundamental right of a citizen to acquire, hold and dispose of his property. Both the points urged have been found against the appellant. No other point was urged. For the above various reasons, the appeal is found to be without merits and is dismissed. However, in the peculiar circumstances of the case, parties have been directed to bear their own costs.

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