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Before Tanzil-ur-Rehman and Syed Abdur Rehman, JJ
YAR MUHAMMAD and another--Petitioners ,
versus
PROVINCE OF SIND and others--Respondents
Constitutional Petition No. D-20 of 1987, decided on 18th March, 1987.
(a) Sind Land Commission (Pre-emption) Rules, 1974-----
---Rr. 3(1) t& 10--Sind Tenancy Act (XX of 1950), S. 13--Tenant's right of pre-emption--- Mode of exercise--Limitation--Tenant claiming his right of pre-emption in respect of land comprised in his tenancy, held, would be required to make application to Revenue officer of competent jurisdiction, exercising powers of Tribunal in respect thereof, within a period of twelve months commencing from the date of execution of sale--Provisions of R. 10 of Sind Land Commission Rules, 1974 do not apply to applications for pre-emption but applies to appeals and revisions only.
(b) Sind Land Commission (Pre-emption) Rules, 1974--
---R. 13--Limitation Act (IX of 1908), S. 18--Deliberate suppression of transaction of sale, what is not--Provisions of S. 18, Limitation Act, 1908 whereby limitation would start from knowledge of execution of sale-deed, held, would apply in cases of deliberate concealment on part of vendee wit regard to transaction--Where a sale-deed was executed and registered in the Office of Sub-Registrar and land was later mutated in favour of vendee, there was sufficient disclosure and notice to general public and provisions of S. 18, Limitation Act would not be attracted.
(c) Land Reforms Regulation, 1972 (M.L.R. 115)--
---Para. 25--Sind Land Commission (Pre-emption) Rules, 1974, R. 3(1)- Sind Tenancy Act (XX of 1950), S. 13--Tenant's right of pre-emption- Effect of Supreme Court judgment in P L D 1986 S C 360 on right of pre-emption of tenant--Provision of M.L.R. No. 115 conferring right of pre-emption on tenant having been declared as repugnant to the injunctions of Islam by Supreme Court, right of pre-emption conferred on tenant, held, would cease to be in force on the day on which decision of Supreme Court had taken effect i.e. on and from 1st August, 1986--There being no existing law in force on the right of pre-emption conferred on tenant under M.L.R. No. 115, petition for enforcement thereof would not lie.
Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah P L D 1986 S C 360 fol.
(d) Constitution of Pakistan (1973)--
---Art. 199--Sind Land Commission (Pre-emption) Rules, 1974, R. 3(1)- Sind Tenancy Act (XX of 1950), S. 13--Constitutional jurisdiction, exercise of--Petition for exercise of right of pre-emption which had ceased to exist, held, would not be maintainable.
Ali Ahmad Khanzada for Petitioners. Nemo for Respondents. Date of hearing; 18th March, 1987.
TANZIL-UR-RAHMAN, J.--1. Granted.
2. The facts arising out of this Constitution Petition, briefly stated, are that a sale-deed in respect of the land in question was executed and registered on 30-9-1974 by respondents Nos. 6 and 7 in favour of respondents Nos. 8 to 11. A pre-emption application was filed by 10 plaintiffs, including the two petitioners herein. The said application was dismissed by respondent No. 3 as time-barred. An appeal was preferred by them to respondent No. 4 who agreed with the finding of respondent No. 3 on the point of limitation and dismissed the said appeal. It may be mentioned that the eight appellants out of ten withdrew their cases at the appellate stage, A Revision was preferred on the same ground but was also dismissed as the suit for pre-emption, was, hopelessly, time-barred. Now the Constitution Petition has been filed by the two petitioners.
Mr. Ali Ahmad Khanzada, learned counsel for the petitioners submitted that the application for pre-emption was dismissed on the point of limitation by the learned respondent No. 3 without hearing the petitioners. The contention seems to be correct, but they were heard subsequently in appeal as well as revision.
It is further submitted by him that he came to know of the execution/registration of the sale-deed filed on 2-1-1978 and, therefore, his application for pre-emption was not time-barred. Rule 3(1), Sind Land Commission (Pre-emption) Rules, 1974 which came into force on 18-2-1974 provides that a tenant, who claims his right of pre-emption in respect of land comprised in his tenancy, shall make an application to the Revenue Court of a competent jurisdiction exercising the power of Tribunal under the Sind Tenancy Act, 1950 within a period of 12 months commencing from the date of the execution of sale. Admittedly the pre-emption application was filed before respondent No. 3 in July, I 1978, which was held by all the respondents Nos. 2, 3 and 4 to be A time-barred. It appears that the petitioners/ appellants also submitted an application under section 5/12 of Limitation Act for condonation of delay but the respondent No. 2 in his order in appeal observed that applicants have failed to furnish any satisfactory explanation for condonation of delay and so the said application was refused. Even otherwise, Rule 101 does not apply to applications for pre-emption. It applies to appeals and revisions only.
The learned counsel further pleaded that the petitioners came to know of the execution of the sale-deed only on 2-1-1978 and so the limitation of 12 months will run from that date. In this respect he referred to section 18 of the Limitation Act. The contention is misplaced. The said section contemplates deliberate contrivance on the part of the opposite party to suppress the transaction from coming to the knowledge of the plaintiff. So there should be a deliberate concealment on the B part of the respondent with regard to the transaction. It is apparent that the sale-deed was executed and registered in the office of the Sub-Registrar concerned in 1974 and the land was later on mutated in favour of vendees/respondents 8 to 11 which is a sufficient disclosure and notice to general public.
The learned counsel, lastly submitted that the petitioner did not receive any notice of sale. We called upon the counsel to produce law if the Martial Law Regulation 115 or the Pre-emption Rules provide for a notice of sale to be given by the vendors. Vendees conceded that there is no such provision in the Regulation or the Rules.
Moreover, in view of the decision of the Shariat Appellate Bench of the Supreme Court in the case of Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah P L D 1986 S C 360 the provision of M.L.R. 115 conferring right of pre-emption on the tenants has been declared as repugnant to the injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p. b. u. h.) and by virtue of that decision the said provision of law has ceased to be in force on the day on which the decision of the Court has taken effect i.e. on and from 1st August, 1986. For this reason, too, there being no existing law in force as to the right of pre-emption conferred on the tenant under the M.L.R. 1f5, the petition, does not lie.
In these circumstances, no case is made out to exercise our constitutional jurisdiction in the matter, the petition is, therefore, I dismissed in limine.
3. In view of the dismissal of the main petition the application M.A. No. 53/87 is also dismissed as infructuous.
A.A. / Y-3 / K Petition dismissed.
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