1984 PLP 1301 (SCMR)

SHAFIUR RAHMAN, J.‑‑ The petitioner an unsuccessful defendant‑second vendee in a pre‑emption suit seeks leave to appeal against the judgment of the Peshawar High Court dated 15‑2‑1984 whereby a revision petition filed by him against the judgment and decree of the two courts below was dismissed. Said Nauman was the mortgagee of the land measuring 1 Kanal caring Khasra No. 1826 in Village Naudah, Tehsil Swabi, District Mardan He sold the mortgagee rights on 29‑1‑1974 for a sum of Rs.6,000 to Haji Muhammad Yousaf represented as respondent by his legal representa tives. Hussain Shah who is now represented by his legal representatives Sardar Said etc. respondent pre‑empted the sale on 29‑1‑1974. One of the pleas taken up in defence by the successor‑in‑interest of Yousaf was that Yousaf had sold the mortgagee rights to the petitioner in recognition of his superior right of pre‑emption. He had done so at first orally then by writing on 16‑10‑1974 followed by a decree of the civil Court dated 8‑7‑1975 and reflected by a mutation attested on 23‑2‑1976. The contest centered round this second sale and its affected on the rights of the plaintiff to pre‑empt for, otherwise it was not disputed that the pre‑emptor had a superior right against Yousaf the first vendee. The trial Court held as follows:‑ "The deed stands disapproved and nothing was brought to this court to establish that the deed was written on its actual date i.e. 16‑10‑1974. I am of the view that all this was done to defeat the right of the plaintiff his absence and hence I hold that the plaintiffs right is not effected by D.W.1/2 or decree of the civil court. Decided in favour .of the plaintiff". On appeal the Additional District Judge affirmed this finding and held as follows:‑ "In my opinion, the subsequent transfer in favour of defendant No.10, having been made during the pendency of the present suit and after the expiry of the period of limitation, is not binding on the rights of the plaintiff and appears to have been made in order to create a hurdle in the way of pre‑emption suit". The High Court upheld the concurrent finding of fact by observing as follows: ‑ "It may, however, be mentioned that there is no evidence to support the oral sale in favour of the petitioner and the deed dated 16‑10‑1974, even if taken as a sale deed, would confer no title on the petitioner as it was neither registered nor proved according to law. Hence, there was no valid transfer in favour of the petitioner within one year of the original sale. The deed which is merely an agreement to sell could not create title to immovable property though it was capable of being specifically enforced. Neither the consent decree dated 8‑7‑1975 in suit N0.276/1 nor the sale mutation No.8245 attested on 23‑2‑1976 in favour of the petitioner are within one year of the original sale which had taken place on 29‑1‑1974 . The learned counsel for the petitioner contended that the sale was proved to have taken place within the period of limitation prescribed for instituting a pre‑emption suit and as the sale was in recognition of the superior right of the petitioner, the plaintiff's suit could not be decreed. We find that the concurrent finding of fact has been recorded by all the Courts that no sale had taken place within the period o. limitation and that having taken place if at all after the expiry of the period of limitation, it could not be said to be in recognition of the superior right of pre‑emption of the second vendee. For this reason such a sale could not stand in the way of the plaintiff pre‑emptor. We find that such a finding has been recorded after consideration of a the evidence brought on ‑the record. There is no error of law as may require further examination of the question. Leave to appeal is, therefore, refused. M. Z. M. Petition dismissed.