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Civil Appeal No.25 of 1988, decided on 21st February, 1989.

(On appeal. from the judgment and decree of the High Court dated 21 10 1986 in Civil Appeal No. 26 of 1986).

S. 6(2) Exclusion of area from pre emption Government authorised to declare by notification that in any local area or with respect to any property or class of property or with respect to any sale or class of sale, no right of prior purchase or only such limited right, as Government might specify, would exist.

S. 6(2) Exclusion of area from pre emption Notification issued under provisions of S.6(2) of the Act to be ordinarily prospective viz. applicable to future sales Government, however, authorised to issue such notification with retrospective effect which would affect sub judice sales Notification issued during pendency of suit might affect the pre emptor but when such notification was issued when right of prior purchase had already merged into a decree, same would not affect right of prior purchase. t is settled law that pre emptor, in order to succeed, must prove existence of his prior right of purchase at the time of sale, institution of the suit and date of decree. When a notification in the aforesaid fashion is issued during the pendency of the suit, it may affect the pre emptor. But when such a notification is issued at a stage when right of prior purchase has already merged into a decree, the consensus is that such a notification would not affect the right of prior purchase already sunk into a decree, consensus rests on the rule of prudence as the provisions of section 6(2) implicitly apply to a right of pre emption and not to a decree. Ordinarily, it may be said that a right of pre emption continues as a right in that shape irrespective off, its sinking into a decree, but the fact remains that such right when merged into a decree loses its individual identity. Therefore, it is rightly construed by judicial luminaries that once the right of pre emption merges into a decree, a notification extincting right of prior purchase would not affect the decree. There is no second view that an appeal is continuation of the suit but in pre emption cases the distinction lies in the manner that the notification under S.6(2) extincts the right of prior purchase. It does not affect the decree of the Court. It is already expressed that once the alleged right of prior purchase merges into a decree, it loses its identity as such. P L D 1971 AJ&K 68; P L D 1961 SC 69 and OLD 1978 SC

AJ&K 126 rel.

Sardar Rafique Mahmood for Appellant.

Kh. Muhammad Saeed for Respondents Nos. 1, 3 and 4.

The appeal is addressed against the Order of the High Court passed on October 21, 1986, whereby setting aside the Order of District Judge Poonch, the decision of the trial Court, resulting in decree for possession in exercise of right of prior purchase, was restored.

2. The alienation of suit land in favour of Muhammad Hassan was pre empted by Hussain Khan, father of respondents, on August 30, 1967. Hussain Khan died during the pendency of suit upon which Muhammad Ishaque Khan and others, his legal heirs, joined as plaintiffs. The vendee appellant repudiated the claim of pre emptors among others on the; ground of exemption of sale by virtue of notification issued by :Government under section 6(2) of the Right of Prior Purchase Act. It was averred that the suit property was situate within municipal limits of Rawalakot town, as such no right of prior purchase was exercisable. The trial Court disbelieved the defence and decreed the suit on October 31, 1982. An appeal was preferred before the District Judge. During the pendency of appeal on January 1, 1983, the Local Government by a notification, extended the limits of Rawalakot town from 1J miles to 21 miles from zero point viz. the old college building. It was in the light of this notification that the District Judge reversed the finding of the trial Court by dismissing the suit. In second appeal before the High Court, the learned Judge, however, disagreed with the finding of the District Judge and restored the decision of the trial Court.

3. Section 6(2) of the Right of Prior Purchase Act, is analogous to section 8(2) of the Punjab Pre emption Act. It postulates that the Government may declare by notification in the Government Gazette that in any local area or with respect to any property or class of property or with respect to any sale or class of sale no right of prior purchase or only such limited right, as the Government may specify, shall exist. By virtue of these provisions, the Government in exercise of its powers vide notification No.155 92/SI/65 dated January 23, 1965, declared that no right of prior purchase shall exist with respect to any sale of land including built up property within the radius of 11 miles of the old College building at Rawalakot, as the center. The vendee in his defence relied on this notification and claimed that the suit property being situate within the prescribed distance, was exempt from the operation of the right of prior purchase.

4.On evidence of the parties it was found that the suit land was situate outside the prescribed limits of the town, as such the suit was decreed. During pendency of appeal before the District Judge another notification was issued by Local Government on January 1, 1983, whereby the limits of municipal area were extended to 21 miles. The suit land was found within the extended limits of the town, the District Judge accepted the plea and dismissed the suit. But the learned Judge in the High Court, declined to accept the contention as in his view, at the time of issuance of subsequent notification, the right of prior purchase had already merged into a decree. It was concluded that the notification was not effective on the decree as such it was of no help to the vendee.

5. Ordinarily, a notification issued under section 6(2) of the Act is prospective; as such applicable to future sales. But the Government, undoubtedly, is clothed with authority to issue notification with retrospective effect. In that case such a notification affects sub judice sales. In the present case no such controversy exists as the notification in question obviously precedes the sale in dispute. Nevertheless the moot point desired to be resolved is as to whether on passing of decree, second notification by which the municipal limits of Rawalakot town were extended beyond the suit land, was effective so as to extinct the right of pre emptor or not. It is settled that pre emptor, in order to succeed, must prove existence of his prior right of purchase at the time of sale, institution of the suit and date of degree. When a notification in the aforesaid fashion is issued during the pendency of the suit, it may affect the pre emptor. But when B such a notification is issued at a stage when right of prior purchase has already merged into a decree, the consensus is that such a notification would not affect the right of prior purchase already sunk into a decree, consensus rests on the rule of prudence as the provisions of section 6(2) implicitly apply to a right of pre emption and not to a decree. Ordinarily, it may be said that a right of pre emption continues as a right in that shape irrespective of its sinking into a decree, but the fact remains that such right when merged into a decree loses its individual identity. T therefore, it is rightly construed by judicial luminaries that once the a right of preemption merged into decree, a notification extincting a right of prior purchase would not affect the decree. An identical view was expressed in Ghulam Rubani"s case PLD 1971 AJK 68. In that case the proposition was addressed at the Bar in that fashion and the learned Judges, on analytical review of the legal aspect of the case, held that notification issued under section 6(2) of the Act, would affect only sales in pending suits and not such sales about which the alleged right of pre emption had already merged into a decree. There was unanimity on the point. Early to that in Mst. Bibi Jan"s case PLD 1961 SC 69, the learned Judge Mr. Justice S.A. Rahman, who spoke for the Court, equally observed that right of pre emption merged into a decree, was not affected by notification issued under section 8(2) of Punjab Pre emption Act, to demolish the right of pre emption. In Shakar Khan"s case PLD 1978 SC (AJ&K) 126, the aforesaid view was approved by this Court.

6. Mr.Rafique Mahmood, the learned counsel for the appellant, emphasised that an appeal was continuation of the suit, as such notification issued at the stage of appeal, shall be deemed to affect the sale, at that level irrespective of passing of decree in favour of the pre emptor. He relied on authorities in support of his contention. There is no second view that an appeal is continuation of the suit but in pre emption cases the distinction lies in the manner" that the notification under section 6(2) extincts the right of prior purchase. It does not affect the decree of the Court. It is already expressed that once the alleged right of prior purchase merged into a decree, it loses its identity as such. Therefore, unless the language of the provisions of section 6(2) is modified so as the notification expressly provided to a decree, we are unable to record our agreement with the learned counsel. We may reiterate that it is accepted by the learned counsel for the appellant that at the time of enlargement of municipal limits of Rawalakot town to bring the suit land within its area, the right of prior purchase, asserted by the pre emptor, had already merged into a decree. The notification, therefore, not being applicable to a decree was of no effect to the present case. The authorities relied on by the learned counsel are not relevant to the proposition under consideration. Therefore, we do not propose to dilate on the same. We find no force in the appeal. It is, therefore, dismissed with costs.

A.A./253/S.C.A. Appeal dismissed.

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