1990 PLP 1019 (MLD)

Saifur Rehman Kiyani for Respondent No.

1. Date of hearing: 14th February, 1990. By Mutation No. 725 attested on 9‑4‑1977, Amanullah Khan, respondent No. 3 herein, transferred to Abdul Akbar, petitioner herein, 8 kanals and 12 marlas of land fully described in the title of the plaint and situated in village Ragee Aftizai, Teshil and District, Peshawar, on the basis of a consent decree passed by a Civil Judge, Peshawar, on 21‑3‑1977.

2. Attacking this transaction, as a sale, Fazal Mehmood and Fazal Marian, respondents 1 and 2 herein, instituted a suit in the Court of a Civil Judge, Peshawar; on 4‑4‑1978 for possession by pre‑emption of the land aforesaid on payment of Rs. 2,000 at which they valued its price. The superior right of pre- emption was claimed by respondents 1 and 2 on the basis of co‑sharer-ship in the khata, participation in immunities and appendages of the suit land and contiguity of the pre‑emptor's land with the land in dispute. The vendees‑respondents resisted the suit on many grounds both factual and legal. It was averred in their written statement that they had purchased the disputed land more than 13/14 years prior to this and had been in its possession which transaction did not find way into the Revenue record, therefore, they filed a suit for declaration of their title to and confirmation of their possession over the suit land which was decreed in their favour and thus the suit brought on 4‑4‑1978 was hopelessly barred by time. They also averred that they had paid a sum of Rs. 30,000 as sale consideration of the suit land which amount was fixed in good faith and actually paid to the vendor.

3. On these pleadings of the parties, as many as nine issues including the relief were settled. Issues No. 3 and 7 which are relevant for the purposes of this revision petition are to the following affect:‑‑ "(3). Whether the suit is within time? (7) Whether the sum of Rs. 30,000 has been paid as sale consideration of the suit land and fixed as such in good faith?"

4. The learned trial Judge found issue No. 3 in favour of the pre‑emptors- respondents 1 and 2 while on issue No. 7 it was held that the sum of Rs. 30,000 had not been actually paid or fixed in good faith and decreed the suit on 30‑11‑1981 at Rs. 20,727.72 on the basis of five years average worked out by the Patwari.

5. A learned Additional District Judge, Peshawar, affirmed these findings of the learned trial Judge in appeal and had dismissed it on 18‑4‑1983. Hence this petition.

6. Mr. Muhammad Aman Khan, the learned counsel for the petitioner, seriously questioned the findings of the two Courts below on issues Nos. 3 and

7. In this context, he contended that Mutation No. 728 attested on 9‑4‑1977 was attested on the basis of the judgment and decree of the Civil Judge dated 21‑3‑1977, which had been challenged by the answering respondents on the grounds of fraud and collusion between the vendors and the vendees in order to defeat the superior right of pre‑emption claimed by the answering respondents. The learned counsel, therefore, submitted that the findings on. issue No. 5 which cover the plea of fraud and collusion was recorded against the pre‑emptors and, therefore, the cause of action had accrued to the pre‑emptors/respondents from the date of passing the said decree on 21‑3‑1977 and the suit was thus hopelessly barred by time. The learned counsel further urged that the findings of the two Courts below on issue No. 7 are not correct inasmuch as in the consent decree dated 21‑3‑1977, the land in dispute was held to have been purchased for a sum of Rs. 30,000.

7. As against this, Mr. Saifur Rehman Kiyani, the learned counsel for the answering respondents, defended the judgments and decrees of the two Courts below in general and their findings on issues No. 3 and 7 in particular. The learned counsel vehemently urged that when a transaction of sale is completed by virtue of a consent decree and on the basis thereof a mutation is attested, the cause of action for the purposes of pre‑emption accrues to the pre‑emptor from the date of attestation of mutation and not from the date of passing of decree. He referred to Civil Revision No. 15 of 1979 titled Mussali Khan v. Haji Muhammad Khan which had also been relied upon by the learned Additional District Judge in this case.

8. In the case of Mussali Khan, referred to above, Abdul Hakeem Khan, C.J., as his Lordship then was, exactly in almost identical facts had held that: "The petitioner wants us to believe that it took place 24/25 years before the pre‑emption suit but this contention is not supported by the Revenue record or by his witness Ajab Gul D. W.2. It will therefore follow and there does not appear to be anything extraordinary in it that no sooner the sale was agreed upon, instead of getting it incorporated in the Revenue record through mutation, he came with a declaratory suit and this was quite evidently done with a view to deter the possible pre- emptors. The fact that the suit was compromised would show that the declaratory suit was only a form and that in fact through that form sale was being effected. The law is well settled that it is the mutation or the date of possession which gives start to the period of limitation and in this case though the mutation was attested as a correction mutation but as a matter of fact it was a mutation of sale."

9. It is now well settled that the consent decree amounts to an agreement to sell. In this respect, I may refer to my own judgment titled Ghulam Akbar Khan v. Haji Sher Jan and others 1989 C L C 1789, wherein relying on Habib v. Haji Muhammad P L D 1970 Kar. 495 and Turab Shah v. Warad Shah P L D 1987 Pesh. 132, I have held that the consent decree is just an agreement between the parties notwithstanding the fact that it has been recorded and bears the seal of the Court. In the instant case, therefore, the impugned consent decree copy EX. D.W.1/2, would be deemed to be an agreement to sell between the vendee -petitioner and respondent‑vendor No.

3. This being the case, the finding of the two Courts below that the cause of action had accrued to the pre -emptors/respondents on 9‑4‑1977 when Mutation No. 725 had been attested on, the strength of the consent decree passed on 21‑3‑1977 and, therefore, the suit brought on 4‑4‑1978 was well within time is unexceptionable. An identical submission. before their Lordships of the Supreme Court in Barkhurdar v. Muhammad Razzaq P L D 1989 S C 749 that the appellants therein had entered in physical possession of the land in dispute through a sale agreement executed on 24‑12‑1976 and, therefore, the suit brought beyond the statutory period of one, year from the said date was barred by time was repelled and it was held that various pieces of evidence relied upon by the learned counsel for the appellant therein, when looked into ‑in the light of the above led their Lordships to the conclusion that the suit filed by the respondent was within time. In the instant case too, there is an concurrent finding of fact of the two Courts below that the petitioner had miserably failed to bring on record even an iota of evidence that he had been put into physical possession of the suit land on or prior to the consent decree dated 21‑3‑1977. Learned counsel for the petitioner has not been able to convince me that there had been any mis‑reading or non‑reading of evidence by the two Courts below. The petitioner's suit to pre‑empt the aforementioned sale instituted on 4‑4‑1978 was well within time. The findings of the two Courts below in favour of the answering respondents on the point of limitation are, therefore, affirmed.

10. The contention of the learned counsel for the petitioner that the two Courts below having recorded findings against the answering‑respondents on the point that the impugned decree was fraudulent and collusive and, therefore, the cause of action would be deemed to have accrued to the answering‑respondents from the date of passing of the decree is untenable. The finding on issue No. 5 would not adversely reflect upon the findings of the two Courts below on issue No.

3. However, the findings of the two Courts below on issue No. 7 are exceptionable in that they have relied upon the five years average price worked out by the Patwari. It is now well‑settled that there is an upward trend in prices of the landed properties in this Province in general and in the areas around Peshawar being the Provincial Metropolis in particular. No doubt, the five yearly average is a well‑recognized mode for ascertaining the market value but keeping in view the present economic set up where prices of land like other things are not constant and are increasing day by day the determination of the market value on that principle would not be a safe criteria. In this view I am fully fortified by the observations in Feroze Khan v. Haji Abdus Salam and others 1984 C L C 974 (Pesh.) wherein it was held that in the determination of the market value, five years average may not be a correct yardstick due to the inflatory trend in real estate prices. Similarly in Noor Khan and others v. Muhammad Hayat Shah bear their own costs. AA./980/P Order accordingly.