P L D 2005 Lahore 102 (PLP)

(3) If not, what is the correct value of the suit‑land? OPPs. (4) Whether the suit is within time? OPP (5) Whether the suit is not correctly valued for Court‑fee and jurisdiction? if so, what is the correct valuation and its effect? OPD (6) Relief. The trial Court dismissed the suit of the respondents vide judgment and decree dated 28‑10‑1981. The respondent being aggrieved filed appeal before the concerned First Appellate Court who accepted the same vide judgment and decree dated 26-9‑1984. The petitioner being aggrieved filed C.R.No.1628 of 1984 which was accepted vide judgment dated 13‑8‑1998 and remanded the ease to the trial Court to decide the case afresh. The trial Court decreed the suit after remand vide judgment and decree dated 1‑4‑1999. The petitioners being aggrieved filed appeal before Additional District Judge, Pasrur who dismissed the same vide impugned judgment and decree dated 8‑1‑2003. .The petitioner being aggrieved filed this revision petition.

2. Learned counsel of the petitioners submits that respondents has mentioned in para‑2 of the plaint that sale‑deed was executed on 8‑5‑1975 which was formally registered on 26‑5‑1975 as is evident from para‑5 of the plaint. Therefore, suit filed by the respondents is time barred and both the Courts below have decided the issue of limitation without application of mind and without proper appraisal of evidence on record. Therefore, finding of both the Courts below are non‑existent in the eyes of law which are not in consonance with the law laid down by the superior Courts. He further submits that impugned judgments of both the Courts below are not in consonance with section 47 of the Registration Act. In support of his contention he relied upon the following judgments:‑ Muhammad Ali v. Muhammad Irshad 2002 YLR 2889, Muhammad Sharif v. Muhammad Safdar 1994 MLD 1390, Din Muhammad v. Subedar M. Zaman 2001 SCMR 1992, Muhammad Hayat v. Surraya Begum 1981 CLC 293, Allah Yar v. Raja and another 1989 SCMR 802, Sher Muhammad v. Rajada and others PLD 1981 SC

591. He further submits that both the Courts below erred in law to rely the evidence of the respondents which was not affirmative evidence as is evident from page‑18 wherein counsel of the respondents has given his statement. Therefore, on the basis of statement of counsel ‑of the respondents learned counsel of the petitioner submits that impugned judgments are not sustainable in the eyes of law by relying upon the evidence which was not produced by the respondents at the relevant time. The judgments of both the Courts below are not in consonance with the law laid down by the superior Courts in the following judgments:‑‑ Naseer Ahmad v. Asghar Ali 1992 SCMR 2300, Al‑Haj Khalil Ahmad v. Australasia Bank 1979 CLC 494.

3. Learned counsel of the respondents submits that sale‑deed was registered by the sub‑Registrar on 26‑5‑1975 and the respondents have filed the suit before the trial Court on 25‑5‑1976, therefore, section 10 of the Limitation Act is attracted in the present case and both the Courts below have given concurrent finding of fact against the petitioner and revision petition is liable to be dismissed. In support of his contention he relied upon Ch. Shafqat Mahmood v. M.B.R (2001 CLC 751). He further submits that respondents produced P.W.1 and documents were also produced. Therefore, respondents have discharged their duty to prove their right of pre‑emption and both the Courts below after proper appreciation of evidence have given concurrent finding of fact against the petitioner. Therefore, revision petition is liable to be dismissed.

4. Learned counsel of the petitioner, in rebuttal, reiterated the same pleas and submitted that statement of P. W.1 does not prove the case of the respondents. Therefore, both the Courts below committed material irregularity and revision petition may be accepted.

5. I have given my anxious consideration to, the contentions of the learned counsel of the parties and perused the record.

6. It is better and appropriate to reproduce relevant paragraphs of plaint, written statement, statement of P.W.1, statement of counsel of the respondents/plaintiffs before the trial Court to resolve the controversy between the parties:‑‑

7. Out of pleadings of the parties, as mentioned above, trial Court framed issue Na.4 to the following effect:‑ "

4. Whether the suit is within time? OPP" In Case the contents of the plaint alone be read then it is crystal clear that the sale deed was executed between the original owners and the petitioners on 8‑5‑1975‑which was registered on 26‑5‑1975 whereas the respondents/plaintiffs filed suit for pre‑emption on 25‑5‑1976. Both the Courts below decided issue No.4 merely on the ground that the sale‑deed was registered on 26‑5‑1975. Therefore, suit filed by the respondents/plaintiffs on 25‑5‑1976 was within time. It is pertinent to mention here that judgments of both the Courts below on issue No.4 are not in consonance with section 47 of the Registration Act and the law laid down by the superior Courts. In arriving to this conclusion I am fortified by the law laid down by the Honourable Supreme Court in Naseer Ahmad's case (1992 SCMR 2300). The relevant observation is as follows'.‑ "Section 47 of the Registration Act seemingly escaped notice of the learned Judges of the High Court, which provides that a document registered on a date subsequent to the date of its execution operates from the date of the execution. Obviously, therefore, the title to the land had passed on to the appellants on 8‑9‑1974, and they could justifiably bank on it to oppose the suit filed by the respondent. " Therefore, finding of both the Courts below are not sustainable in the eyes of law in view of section 47 of the Registration Act and the law laid down by the Honourable Supreme Court in the aforesaid judgment, As such finding of both the Courts below on issue No.4 are set aside. In view of what has been discussed above, the suit filed by the respondents is time‑barred. Therefore, it is not necessary to dilate upon the contentions raised by the learned counsel of the parties' on other issues. As mentioned above the judgments of both the Courts below are in violation of the law laid down by the superior Courts. This concept of jurisdiction and illegality had been considered by the Honourable Supreme Court in Kanwal Nain's case (PLD 1983 S.C. 53) to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom. Both the Courts below have committed material irregularity. This Court has ample jurisdiction to disturb the finding of fact in such situation as the principle laid down by the Honourable Supreme Court in Shaukat Nawaz's case (1988 SCMR 851). In view of what has been discussed above, this revision petition is accepted with no order as to costs. Resultantly judgments and decrees of both Courts below are set aside and the suit of the respondents is dismissed. S.A.K./M‑712/L Revision accepted.