1979 PLP 222 (CLC)

7. The next contention raised by the learned counsel was that in case it is held that the appellant was not a co-sharer in the khata he was in any case an owner in Taraf Waraich of the Estate of Kunjah, in which Taraf the land in dispute was also situated. This status according to him was not enjoyed by the respondent. He elaborated his contention by submitting that the Estate of Kunjah had two pattis namely pattis . Ramna, Taraf Waraich and Taraf Korotana. Khasra No. 2981/7027 which was earlier purchased by the respondent and on the basis of which the respondent claims equal status with appellant was situated in Taraf Korotana whereas the land in dispute according to him was admittedly in Taraf Waraich. He, in this regard, referred to the document Exh. D; 7 to show that Fazal Elahi respondent owned land in Taraf Korotana of Kunjah Estate.

8. On the other hand the learned counsel for the respondent sub mitted:- Firstly that vide RL. II Exh. D/4 specific Khasra. numbers had been allotted in favour of vendors and that by issue of Exh. D/5 (Nakal Parchi Taqseem Khatauni), the partition of the joint khata of the evacuees held before partition with the predecessor-in-interest of the appellant had been effected. He referred to rule 7-A of the Displaced Persons (Land Settlement) Rules, 1959 to contend that an entry in the RL 11 shall be taken as a mutation of partition. He further submitted that according to para 7-56 of Part D of Chapter VII of the Land Records Manual, it is the duty of the Revenue Department to give effect to all the mutations in the manner prescribed and their failure to do so would not render the mutation as non-existing or ineffective especially when it had come into existence by operation of law; secondly that under section 52 of the West Pakistan Land Revenue Act which is a substitute of section 44 of the Punjab Land Revenue Act, the presumption of correctness is attached to the Jamabandi only if it has been prepared in accordance with law. According to him since the entries in Exbs. P. 2, P. 3 and P. 4 had not been prepared in accordance with law, the presumption as to the correctness of the entries therein no longer remained attached to them. He further contended that it was for the appellant to have established that despite RL. II Exh. D/4 the entries in Exhs. P. 2, P. 3 and P. 4 were correct, which he failed to do, and thirdly that since specific Khasra numbers had been allotted to and con firmed in favour of the vendor as per Exbs. D/4 and D/5, the process of the partition of the joint khata shall be deemed to have been undertaken as this was an act done in the due course of official work. The onus of proof of issue in question being on the appellant and no evidence having been led to show that partition had not been effected in accordance with para. 15 of the Rehabilitation Settlement Scheme, 1557, the onus had not been discharged. He also drew attention to the evidence of D. W. 1 Khadim Hussain Patwari to show that not a single question was put to the said witness to ascertain whether partition of the joint khata had been effected or not.

4. With his above submissions he concluded his arguments on the point of failure of the appellant to discharge the onus of proof of issue of superior right of pre-emption claimed on the basis of being a co-sharer in the khata.

10. He then submitted that so far as the other basis of superior right of pre-emption namely being owner in estate is concerned, there also the appellant had miserably failed. In this regard he first referred to the state ment of the appellant himself appearing as P. W. I wherein he had admitted that he does not know the patti in which the land in dispute was situated. This, it was argued by him, was sufficient to show that there were no pattis and Tarafs of the Estate at all. He further submitted that in fact there were no pattis and Tarafs as envisaged by section 15(c) (Secondly) of Punjab Pre-emption Act, inasmuch as it had to be proved by positive evidence that the patties were based on homegeneity of descent or area regarding which position no evidence had been led by the appellant. He argued that the pattis and Tarafs, as mentioned in some of the docu ments placed on record were only in the nature of fiscal arrangement and cannot be equated with patties and Tarafs as are required to emst for exercise of right of pre-emption. He placed reliance in this regard on Ram Partab v. Kishan Singh aid another (A I R 1937 Lah. 32) and also on Raja Painda Khan and others v. Sardar Kahan Singh and others (A I R 1937 Lah. 703).

11. The learned counsel also contended that the appellant cannot be shown any indulgence in respect of the burden of proof of the issue in question, in that it was for him to have strictly discharged the same in compliance with the provision of law of pre-emption as the right of pre emption has been consistently held to be of a piratical nature. Reliance was placed on Lal Khan v. Ghulam Muhammad (1973 S C M R 252).

12. Lastly, the learned counsel contended that the suit had been filed by Muhammad Anwar, appellant in his own right claiming superior right of pre-emption whereas the admitted position as per his own statement is that his farther who had been reflected as a joint owner with the evacuees in the khata in dispute was alive at the time of institution of suit in 1964. The statement of plaintiff further was to the effect that the land had devolved upon him in the joint khata due to inheritance. He submitted that inheritance could only take place on the death of the father which admittedly occurred in 1967. In the context of this position he submitted that the entries in Exhs. P. 2, P. 3 and P. 4, the documents on the basis of which the appellant claims superior right of pre-emption can also be given no weight.

13. The learned counsel for the appellant in reply submitted that since the issue of superior right only was framed and there was no issue in respect of the paths of the estate, no evidence was led by the appellant to prove that there existed paths within the purview of Punjab Pre-emption Act.

14. I have given anxious consideration to the controversy involved. The contentions raised by the learned counsel for the appellant challenging correctness of judgment and decree of the lower Appellate Court and attempting to show the same as having .been passed by misreading of the record, suffice it to say do not find support from the record. It has been correctly pointed out by the learned counsel for the respondent that it shall have to be presumed that partition of the khata had taken effect in due course of law as specific Khasra numbers had been allotted to the vendors from whom the respondent derived the title. Nothing has been brought on record by the appellant on whom lay the onus of proof of the issue in question that partition in accordance with para. 15 of the Rehabilita tion Settlement Scheme had not been undertaken. In the face of docu ment Exh. D/4 it was obligatory on the appellant to have proved that the procedure laid down in para 15 had not been complied with. What to say of proving it by positive evidence, the appellant did not even care to put any question to the witness of the respondent namely D. W. 1 Khadim Hussain, Patwari in this regard. No suggestion even was made to him that partition of the joint khata had not taken place. Now by allotment of the land in dispute to the vendors vide Exh. D/4 specifically denoted with Khasra numbers in question and subsequent issue of Parchi Taqseem Khatauni Exh. D/5 under the signatures of Deputy Rehabilitation Com missioner it shall have to be presumed that the partition had been effected especially when nothing had been brought on record to rebut the same. It may also be pointed out that the position if there be any that the mutation which had emerged by virtue of issue of Exh. D/4 had not been given effect in the Revenue record, shall not detract from the validity of partition as the entries in the Jamabandis shall not have the presumption of correctness being violative of rule 7-A of the Displaced Persons (Land Settlement) Rules, 1959 and will be liable to be modified at any time in accordance with the provision of law referred to above. Para. 7.56 of Part I of Chapter VII referred by the learned counsel for the respondent also tends to show that it is the obligation of the Revenue staff to give effect to all the mutations. Their failure to perform their duty will not have the effect to nullify the partition itself, which shall be deemed to have come into existence by virtue of issue of Exhs. D/4 and D/5.

15. In the context of the above position it can be safely said and had been rightly held so by the lower Appellate Court that partition of the khata had been and in any case shall be deemed to have been effected and that the appellant could not claim superior right of pre-emption on the basis of being a co-sharer in the khata in question.

16. Adverting now to the other basis of claiming superior right of pre-emption, suffice it to say that it has not been established as rightly pointed out by the learned counsel for the respondent that there existed Patti or Taraf which is required to exist for exercise of right of pre-emption as provided by section 15(c) (secondly) of the Punjab Pre-emption Act.

17. The mere use of words "Path" or "Taraf" where in the record or otherwise, by itself will not establish a sub-division of the village as contemplated by the Punjab Pre-emption Act. Whether the "patti" or' "Taraf" is a sub-division or .not, has to be determined on the basis of the history of the village, the homogeneity of area or of descent. Tarafs ma have been created for fiscal purposes. Such Tardfs or Pattis do no necessarily represent homogeneity of area or descent and, therefore, cannot be held to be sub-divisions of a village within the meaning of section 15(c) (secondly) of Punjab Pre-emption Act, 1913. In order to establish Pattis or Tarafs for the purposes of Punjab Pre-emption Act, it has got to be established that the Pattis and Tarafs are recognised sub-divisions having homogeneity of area or descent. In the absence of such proof of existence of Pattis or Tarafs having been brought on record a pre-emptor cannot avail of the mere mention of the word Patti or Taraf in the record to successfully pre-empt a sale on the basis of claim as an owner in the Taraf or Patti.

18. In this regard reference may usefully be made to the following passage from the cited judgment Ram Partap v. Kishen Singh and another (A I R 1.937 Lah. 32) "It is no doubt true that in the settlement papers, the two pattis are men tioned and-there are separate Lambardars for them. But these facts are by no means conclusive on the point. The number of lambardars appointed in a village or the sub-division thereof, is a matter of adminis trative convenience, depending on a variety of considerations. In some places a single lambardar is considered sufficient for a whole village; in others several lambardars are appointed for one sub-division. The real question is whether path Gurmukh Singh and patti Gulab Singh are distinct entities, having nothing, in common between them, each having homogeneity of area or descent."

19. The view that a patti which is created merely for fiscal purposes and in no way represents homogeneity of area or descent of the proprietors does not constitute a sub-division within the meaning and for the purposes of section 15(c) (secondly) of Punjab Pre-emption Act, 1913 had also been taken in Waryam Singh v. Mehtab Singh and another (A 1 R 1914 Lah. 255).

20. In Parbhu v. Shams-ud-Din and another (A I R 1948 Lah. 199) it was held that in order to determine for the purposes of the pre-emption law whether a particular patti or a sub-division of a patti was a recognised sub-division of a village in the true sense of that term, reference must be made to the Kaifiyat-i-Dehi of the village and it should be ascertained whether the sub division of the village was between various branches of one family or whether these sub-divisions were made by the Revenue authorities for fiscal purposes only. The subsequent history of ownership in the sub-divisions is not the determining factor in order to find out whether the sub-divisions when originally founded were homogeneous in descent as well as in area.

21. The consensus of the view, therefore, had been to which I very respectfully subscribe that in order to establish a Patti or Tara to constitute a sub-division within the meaning of section 15(c) (secondly of Punjab Pre-emption Act, 1913, it is not sufficient to "Patti" shothat in some record pertaining to the land in dispute, the word or Taraf has been mentioned, but it has got to be established by substantial and credit evidence that the Patti and Taraf had come into existence on account o homogeneity of descent or of area.

22. Adverting to hand applying the above principle it would be found that the appellant had failed to establish the existence of the path or Taraf in the above view of matter. By the mere production of some documents of the Revenue record wherein Taraf has been mentioned, it cannot be inferred that the Taraf was of the nature as contemplated by the Punjab Pre-emption Act, 1913. The inference that has been drawn by the lower Appellate Court in the attendant circumstance of the Taraf or patti as the case may be as mentioned in the Revenue record is in the. nature of fiscal arrangement made by the Revenue staff appears to be unexceptionable. It may also be mentioned that prima facie also there does not appear to be any homogeneity of descent between the father of the appellant and the evacuee owner, the former being Rajput whereas the evacuees were Khattris.

23. The principle laid down in Lal Khan v. Ghulam Muhammad that the nature of right of pre-emption is piratical and that in order to effectively exercise the same, the pre-emptor has to bring his case strictly within the four corners of the Punjab Pre-emption Act is well settled. Reference in this regard may also be usefully made to Maulvi Ahmadyar v. Mst. Hajran (P L D 1966 B J 1) and Saeed Ahmad and another v. Karam Singh (P L D 1949 Lah. 380).

24. In this view of the matter as well it can be safely said that the appellant has not been able to establish the superior right of pre-emption under section 15(c) (secondly) of Punjab Pre-emption Act.

25. The upshot of the above discussion is that the findings of the lower Appellate Court that the appellant had not been able to establish superior right of pre-emption on any of the two scores are fully warranted by the facts of the case have been based on proper appraisal of the evidence on record. No valid exception can be raised to the findings of the lower Appellate Court in this regard. As a result the contentions raised by the learned counsel for the appellant fail.

26. As regards the contention that there was no separate issue as to the existence of right of pre-emption on the basis of plaintiff being owner in patti, suffice it to observe that issues are to be construed in the context of the pleadings. As such the issue about the superior pre-emptive right of the appellant-plaintiff was comprehensive to include all pleas that the plaintiff claimed for such superior pre-emptive right including that of being an owner in the patti or Taraf. Furthermore, evidence had been led by the parties on this aspect of the case and if the appellant contented himself with entries of revenue record mentioning the names of patti or Taraj and did not go further to lead positive evidence showing that patti or Taraf existed in the village within the meaning of section 15(c) (secondly) of Punjab Pre-emption Act, 1913, he has to think himself and cannot make a grievance of the form of issue.

27. Before parting with the case it may also be pointed out that the submission made by the learned counsel for the appellant as to the locus standi of the appellant to file a suit for pre-emption in the lifetime of his father who in fact was the joint owner in the khata in dispute also appears to have force, especially when the appellant had admitted that the property had devolved upon him through inheritance. Now it cannot be said that inheritance could open before the death of a person. I would, however, not dilate on this aspect further as it was not a point at issue between the parties in the Courts below. For all that has been said above" this appeal has no force and is dismiss ed. There will, however, be no order as to costs. K. M. A. Appeal dismissed.