1984 PLP 23 (CLC)

"With all due respect, we are in full agreement with the views express ed in this reported case and are of opinion that the. Legislature when enacting section 54 of the Transfer of Property Act could not have intended to add this provision of law to other laws dealing with the sale of property and in force in the same area. No doubt, a sale made in violation of the provisions of section 54 of the Transfer of Property Act would not be valid sale, but if the law of pre‑emption permits that a sale, which is otherwise com plete, can be pre‑empted and if the pre‑emptor is prepared to take over the defective title of the vendee, he cannot be prevented from doing so, simply because the vendor and vendee have colluded with each other to deprive him of his rights. Whatever rights are possessed by the vendee, 'under such a defective sale, would go to the pre‑emptor, if he succeeds, and if he is prepared to take that risk, it is not for the vendee to say that his title is defective and that, therefore, that defective title cannot be passed on to the pre‑emptor." The above‑quoted para. is a complete answer to the above submission made by the learned counsel for the applicant.

4. Reverting to the second contention that all the instalments were not paid by the vendor (who sold the land to the applicant) to the Colonization Officer, and therefore, he could not have transferred the land in favour of the applicant and hence no right of pre‑emption could be claimed by the respondent, it may be observed that Mr. Kehar has invited my attention to annexure `M' attached to the revision petition, which is a Tapedar receipt, dated 12th December, 1973 for a sum of Rs. 3,558 paid by the applicant towards the instalments. In this regard it may be pointed that the mutation was effected in favour of the appli cant on the basis of the statement recorded by the Mukhtiarkar on 23rd June, 1973. The applicant did not raise any plea of the nature which has been urged by him before me, in his written statement nor it was argued either before the learned trial Court or before the first Appellate Court. No question was put to the respondent in this regard. 1n this view of the matter, it will not be just and proper to non‑suit the respondent on the above ground. Even otherwise, the fact that mutation was effected in the name of the applicant in respect of the suit land on 23rd June, 1973 has not been denied. It was urged vehemently by the learned counsel for the respondent Mr. Farmanali that the mutation could not have been effect in favour of the applicant and village form VII would not have been prepared unless all the instalments would have been paid by the vendor. Since no such plea was raised in the written statement or before the two Courts below. I am not inclined to examine the above contention any further.

5. Referring to the third contention of Mr. Kehar that the suit filed by the respondent was time‑barred, it may be stated that in support of the above contention he has pointed out that the agreement of sale in favour of the applicant was made on 6th January, 1973. It has been urged by him that if the agreement of sale is sufficient to entitle the respondent to claim the right of pre‑emption, the above date would be the starting point for computing the period of limitation of one year and as the suit was filed on 12th June, 1974 it was clear time‑barred. In this regard it may be pointed out that the applicant had not raised any such plea in his written statement. However, plea of limitation can be allowed to be raised even as the revisional stage if on admitted facts, a case of limitation is made out. In the instant case a reference may be made to the statement made by the vendor before the Mukhtiarkar on 23rd June, 1973, in which it has been clearly stated that the vendor was transferring the land in favour of the applicant on the date when he made the above statement and prior to that the status of the applicant was of a Hari. Since the above statement is the basis on which the land was transferred to the applicant and the mutation in the Revenue record in favour of the applicant was effected in pursuance thereof, the starting point for the purpose of limitation is 23rd June, 1973 and hence the suit was within time.

6. As regards the fourth contention that the respondent's title to the land on the basis of which he was claiming right of pre‑emption was not complete as there was no execution and registration of a sale‑deed in his favour in respect hereof, it may be pertinent to make reference to the three cases in this regard, namely the case of Muhammad Bakhsh v. Ziaullah and others (P L D 1971 B J 42), the case of Muhammad Issa v. Board of Revenue, West Pakistan, Lahore and 2 others (P L D 1979 Kar. 783) and the case of Karam Ali lamali and S others v. Federal Land Commission, Rawalpindi and 2 others (1982'C L C 689). (i) As regards the case reported in P L D 1971 B J 42, it may be observed that a Division Bench of the Lahore High Court at Circuit Bench at Baghdadul Jadid held that in order to claim preferential right under section 1 of the Punjab Pre‑emption Act (I of 1913) as a co‑sharer, the share of which was obtained on the basis of sale mutated in the Revenue record without any execution and registration of sale‑deed in terms of section 54 of the Transfer of Property Act would not entitle the plaintiff to claim a right of pre‑emption. It may be advantageous to reproduce para. 3 of the above judgment, which reads as follows:‑ "After bearing the learned counsel for the appellant at some length we have come to the conclusion that the view taken by the learned Additional District Judge is the correct one to take in this case. It is conceded that section 54 of the Transfer of Property Act was applicable to the sale evidenced by mutation No. 1031, dated the 4th of June, 1965. As a consequence it must be held that no valid sale took place in favour of the present appellant as no registered instrument was executed. The right of pre‑emption relied upon by the appellant is spelt out in the fourth clause of subsection (b) of section 15 of the Punjab Pre‑emption Act. That clause contemplates that the right shall vest in the co‑sharers in the absence of the persons mentioned in the first three clauses of this subsection. In order to be treated as a co‑sharer it was necessary for the pre‑emptor to show that he had acquired a title in the land comprised in the Khata from which the sale, sought to be pre empted, had been made. The basis on which the pre‑emptor relies has been found to be non‑existent in view of the appli cability of section 54 of the Transfer of Property Act." The above case supports the contention of the learned counsel for the applicant. (ii) However, in the above two Karachi cases the Sind High Court has taken a contrary view as to the effect of mutation in the Revenue record, on the basis of an oral sale of agricultural land without execution and registration of a sale‑deed. In the first case of Karachi, reported in P L D 1979 Kar. 783 a Division Bench has made a reference to the G. R. No. 8856 of 1903 and No. 590, dated 6th September, 1921 to hold that oral transactions of land are admitted for the purpose of entries in the records of rights. In this regard it may be pertinent to quote the relevant portion of the above judgment at page 786. "We find that there is substance in ‑the contention raised by Mr. Saeeduz Zaman Siddiqui, Advocate. The transaction in question was an oral sale which was completed in the year 1942 and the entire consideration for the sale was paid to Bishan Singh in the year 1942 and Bishan Singh had also handed over possession of the plot in question with its structure to the appellant in the year 1942. Therefore, the sale was actually completed in the year 1942 and at this stage we are not very much concerned as to whether there was a defect in the sale so effected or not. It seems that oral‑sales have been allowed in this part of the country in respect of properties which were dealt with by the Revenue Authorities and Mr. Saeeduz Zaman Siddiqui had shown to us. Standing Order XVII, which contains instructions issued in 1903 and on 6th September, 1921 which is contained in the Volume of Standing Orders published under the Authority of the Government of Sind which reads as under :‑

"G. R. No. 8856 of 1903 and 590, dated 6th September, 1921. (1) The oral transactions of land and rights in the land are admit ted for the purpose of entries in the records‑of‑rights if the parties give written statement of agreement." This clearly shows that the mutation of names in the revenue records could be effected if the transaction of oral sales was proved before the Revenue Authorities through the statements by the parties. The objection of Mr. Osman, the learned counsel for the respondent that this would not apply to the Urban properties it is not correct at this notification talks of mutation in the Revenue records and since we are dealing in respect of mutations effected by the Revenue Authorities therefore we do not see any reason to exclude the application of this notification to the mutation on the basis of the oral sale before us. The sale thus having been com pleted in the year 1942, it was a matter of mere formality of bring ing the record of the Revenue Authorities in conformity with this sale as the mutation was sought to be effected in the year 1947 on the basis of the statement of Bishan Singh. This mutation did not in fact create a transfer in itself but simply recorded in Revenue records the factum of the transfer which bad been made in the year 1942. Therefore, it was not a case of transfer of property made in the year 1947 but was merely a case of recording a sale completed in the year 1942. The mutation in the revenue records is really made for the purpose of showing the possession of the property had been transferred to the appellant in the year 1942. It is true that ordinarily the mutation should have immediately followed the transaction of sale in the year 1942 and, therefore, there could be some doubt in respect of the bona fides of mutation. But since the possession had admittedly been with the appellant, therefore, the delay in the mutation is not of any significance". (iii) In the second case of Karachi, reported in 1982 C L C 689 a Division Bench comprising Zafar Hussain Mirza and Saleem Akhtar, JJ held that oral sale transactions reflected in the Revenue record notwith standing the absence of execution and registration of sale‑deed in favour of the purchaser created interest in favour of the purchaser and were valid transaction for the purpose of Land Reforms Regulation, 1972. (iv) It seems that in the province of Sind on the above notifications a practice of effecting oral sales in respect of agricultural land are effected' and the mutation in Revenue record are effected on the basis of such sales without execution and registration of a property. As the above transactions are accepted for all intents and purposes, the same can be pressed into service for claiming right of pre‑emption, till the time the Revenue Authori ties, issue a notification nullifying the above two G. Rs. of 1903 and 1921. Since two Division Benches of this Court have taken a contrary view to the above Lahore case, I am bound to fallow the Karachi cases. I am therefore, of the view that sufficient interest was acquired by the respon dent in the land on the basis of which he could claim right of pre emption.

7. Reverting to the last contention of Mr. Kehar that the respondent could not have claimed the pre‑emption right in respect of the entire agricultural land, which is the subject‑matter of the sale in favour of the applicant, it may be pertinent to refer the relevant passages from the well‑known Book namely, Muhammadan Law by Syed Ameer Ali, Vol. I, 1976 edition pages 719‑720 and 721:‑

"When a building situated in a private lane contains several houses and one of these houses is owned by two persons, one of whom sells his share to an outsider, the right of pre‑emption appertains first to the vendor's co‑sharer in the house, then to the partners in the building thereof, and next to the people in the street who are all alike. "If all these give up their right it belongs to the mulasik or contiguous neighbour by whom is meant the neighbour behind the mansion sold who has a door opening into another street." A house belonging to two persons is situate in a street which has no thoroughfare and one of the partners sells his share to a stranger, the right of pre‑emption belongs first to the partner in the house, then to a partner in a party‑wall, then to all the people in the street equally, and then to the person whose house is behind that which is sold. A person having a right of way over the property sold has a pre ferential claim to one who has only a right of water without any interest in the site of the water. So where a piece of land is sold over which one person has a right of way and another a right to discharge the water of his house, the former's claim is stronger. Between neighbours, proximity to the subject‑matter of the claim gives the preference, for example, one who is nearest is preferred to one who is further off." If the person who has a preferential right waives or relinquishes his right of claim, the person next in order would be entitled to enforce his own right. For example, if a Shafi‑i‑Sharik abandon his right of pre‑emption, it would devolve on one who is the holder of a dominant tenement, and if he also give up his right it would devolve on the Shafi‑i‑jar or Neighbour," It has been held that the right of pre‑emption extends to agricul tural estates, and is not confined merely to urban properties or small plots of land. And though the right founded on the basis of vicinage has been limited by the Courts in India to parcels of land and houses, such a right founded upon actual co‑parcenary has been held to apply to villages or large estates." It may be noticed that the author was of the view that a rig f of pre‑emption could be claimed on the basis of preferential rights and if A who has preferential right does not claim the right of pre‑emption B may claim if he comes next and if A and B do not claim then C may claim if by comes next and if A B and C 09 not claim, D mar claim It may also be noticed that the law of pre‑emption is also applicable to agricultural land. In the instant case survey numbers 159 and 195 which area also subject‑matter of the sale in favour of the applicant are not situated contiguously to the survey numbers of the respondent and there are one or two survey numbers between the above two survey numbers but since the persons having preferential right have not come forward to claim right of pre‑emption, the respondent was entitled to claim the same, particularly when they were subject‑matter of the same sale transaction and according to the finding of the learned Courts below that if the above survey num bers are not to be included, there would be violation of Martial Law Regulation 69 as the sale would be for less than economic holding prescribed under the law.

8. It was also contended by Mr. Kehar that there was no proper second demand inasmuch as the property in respect of which pre‑emption was claimed was not specified by the respondent in the presence of the two witnesses. No such plea was raised before the trial Court. Even otherwise, there was only one sale in favour of the applicant and the respondent exercised his right of pre‑emption in respect of the said sale.

9. For the aforesaid reasons, the revision is dismissed with no order as to costs. M. Y. H. Petition dismissed.