P L D 1972 Peshawar 115 (PLP)

(3) Whether the plaintiff has a superior right of pre‑emption as against the defendants? (4) Whether the defendants purchased the suit land actually for Rs. 4,000? (5) In case issue No. 4 is not proved, what is the market value of the suit land? (6) Relief.

5. Out of the issues, we are, in this second appeal, to determine the questions of limitation and market value viz. issues 1 and

5. The learned trial Judge in his finding on issue No. 1, in substance, held that the suit land was sold by mutation No. 279 attested on 20‑10‑66 and as such the suit was clearly within time. As to the market value of the suit land, the trial Judge accepted the market value of the suit land to be Rs. 2,444.40, assessed according to the Ausat Panjsala (Exh. P. W. 1/2). He thus granted the plaintiff a decree for possession of the suit land through pre‑emption on payment of Rs. 2,444.40, with costs, against the defendants, by his judgment and decree dated 20‑4‑1968. In appeal by the two defendant‑vendees, the learned Additional District Judge, Mardan concurred with the finding of the trial Judge with respect to the market value. On the question of limitation, the learned appellate Court discussed the material on record at great length. His observations pertaining to the question of limitation in para. 4 of the judgment are worthy of reproduction:‑ "

4. The learned counsel for the appellants assailed the finding on issue No. 1 and contended that the sale of the suit land bad taken place in 1944 and the appellants had been in possession under the sale since then. It being so, according to him, the time had begun to run from the date of possession and not the attestation of the mutation. The learned counsel for the respondent, on the other hand, con tended that the sale of 1944, was distinguishable from the sale: evidenced by mutation No. 279 attested on 20‑10‑1966 and time shall run from the latter date. It was per unregistered deed dated 8‑7‑44, copy Exh. D. W. 1/3, that Abdul Ghafoor, Abdur Rahim and Abdul Shakur sold 1/4th share fn the Khasra Nos. 927 and 1053 measuring 7 kanals 5 marlas to Samar Qand, Abdullah and Mir Jaffar for Rs.

99. The same day per deed, copy Exh. D. W. 1/2, Wasil, Gulal Shah, and Mst. Misri sold 1/4 share in both the above‑mentioned fields for Rs. 99 to the same vendees. Said Shah, Faqir, Abdur Rahim, Abdul Ghafur, Abdul Shakur, Wasil, Gulal Shah and Mst. Misri sold the entire two fields for Rs. 98 to the same vendee the same day per deed copy Exh. D. W. 1/1. It may be pointed out forthwith that in the last mentioned deed the vendors of the former two deeds also joined Said Shah and Faqir, though on the same day they had transferred their share to the vendees. The total area transferred is the whole of Khasra Nos. 927 and 1053 measuring 7 kanals 5 marlas. In the jamabandi 1947‑48 Samar Qand is shown in possession of Khasra No. 927 as tenant‑at‑will on account of sale whereas Khasra No. 1053 is possessed by Dur Maqnoon. In the jamabandi 1955‑56 Samar Qand is shown in possession of 10 marlas only of Khasra No. 927 and the same entry finds a place in jamabandi 1959‑

60. In the jamabandi 1963‑64 Samar Qand is recorded in possession of Khasra No. 738, a new number created during the (consolidation) proceedings. In the Khasra Girdawari Samar Qand is shown in possession of a part of khasra No. 927 The question that arises is whether the sale which took place in the year 1944 is the same which finds place in mutation No. 279 attested in 1966 and whether possession of Samar Qand on a part of the suit land has been under the former sale. There are certain distinguishing features of both the sales which are to be kept in view. In the sale deeds Samar Qand, Abdullah and Mir Jaffar are the vendees, whereas in the sale mutation Samar Qand and Mir Jaffar only are shown the vendees. In the sale deeds the consideration amount is Rs. 296 only whereas in the sale mutation Rs. 4,000 is the consideration. Some of the vendors were ladies and they admitted before the Commissioner who had recorded their statements that Samar Qand and Mir Jaffar were the vendees on their behalf and they had received Rs. 1,

000. The significant disparity between the sale money of the sale deeds and the sale mutations goes a long way to show that the transactions are different and not one and the same. The vendees are also not the same and this fact too supported the conclusion that both the transactions are not one and the same. It transpires that the sale deeds were executed in 1944 but were not acted upon and that is why no formal mutation was on their basis attested by the revenue authorities. The vendees Abdullah and Mir Jaffar never came into possession of any portion of the land purchased by them. Samar Qand no doubt has been in possession of a part of the suit land for years but he is a party to the sale mutation and it can be said that he bad waived his rights which he had acquired during the span of so many years. I am of the view that the sale transaction effected per mutation No. 279 is a separate distinct bargain and in no way connected with the sale of 1944. This mutation was attested on 20‑10‑1966 whereas the suit was instituted on 12‑10‑1967. The suit being within, one year from the date of the attestation of the mutation is well within time. The finding of the learned lower Court om issue No. 1 is, therefore, maintained." The appeal was thus dismissed with costs by the judgment dated 10‑1‑1970.

6. In this second appeal of defendant‑vendees, the questions which arise for decision have already been referred to in the commencing para of the judgment. The two `Courts below fixed the market value of the suit land at Rs. 2,444.40. This concurrent finding of fact does not merit interference. During the hearing of the' appeal Nisar Muhammad Patwari Halqa Shaheeda, District Mardan (C, W. 1) was examined at length. He placed the relevant revenue record consisting of copies of jamabandis and copies of khasra Girdawaris on file. From the evidence of the Patwari it is established that the pre‑consolidation field Nos. of the suit land were 917 measuring 6 kanals 8 marlas and 1053 measuring 17 marlas. By mutation` No. 2633 attested on 7‑8‑1959, the share of non‑Muslims, which was 1 kanal 9 marlas, was separated and given Khasra No. 927/1. The Muslim owners were allotted, in the partition, Khasra No. 927/2, measuring 4 kanals 19 marlas and Khasra No. 1053 salim, measuring 17 marlas. Subsequently as a result of consolida tion proceedings by mutation No. 3275 attested on 27‑12‑1963 the two Khasra numbers were allotted now Khasra numbers as 737 measuring 4 kanals 7 marlas, 738, measuring 4 kanals 15 marlas, 739, measuring 19 marlas and 765 measuring 6 marlas. The new Khasra numbers were allotted to Abdur Rahim, Abdul Shakur, sons of Mansur. two shares, Muhammad Younas, son, Mst. Quresha, widow, Mst. Bakht Jan and Mst. Nawab; Jan, daughters of Abul Ghafur, 1/3rd out of one share, Msts. Misri and Bakht Jan sisters 1/4th share, Gulab Shah, Zainur Shah, Sher Bahadur and Umar Khitab sons 56 shares, Mst. Safia, widow, 12 shares, Msts. Zainura and Khanam Nur, daughters, 28 shares as heirs of Said Shah, 3/4 out of 2/3, out of total 3 shares, Gulab Shah son of Said Shah, one share, Mst. Misri, widow of Said Shah, Gulal Shah, son of Sargand, one share out of one share. By mutation No. 279 (copy Exh. p. W, 3/1) entered on 20‑10‑56 and attested on 20/23‑10‑1966, Mst. Misri, widow of Sahib Shah, 4 shares, Gulal Shah son of Sargand, 9 shares, Gulab Shah, son of Said Shah, 4j shares, and Gulab Shah, Zainur Shah, Sher Bahadur, Umar Khitab, sons, fn equal share, 56 shares Mst. Hanifa, widow, 12 shares Msts. Zarina, Zainura, Khanam Nur, daughters, in equal shares, 26 shares, heirs of Said Shah out of 27 shares, sold 45 shares out of 72 shares, with share of shamilar, to Samar Qand and Mir Jaffer sons of Sohbat Khan in equal shares. Samar Qand appellant alone is entered in continuous possession over an area of 3 kanals 10 marlas out of Khasra No. 927 or 927/2 from Rabi 1954 till Rabi 1963. In Kharif 1963 Khasra No. 927/2, measuring 4 kanals 19 marlas fell in possession of Durri Maknoon on account of consolidation. It is thus clear that Samar Qand defendant‑appellant alone has been in possession of a part of suit land from Rabi 1954 till Rabi 1963. The three unregistered deeds, referred to above, were executed on 8‑7‑44 by which a total area of 7 kanals 5 marlas comprising of Khasra Nos. 927 and 1053 was sold to Samar Qand, Abdullah and Mir Jaffer, sons of Sotabat. The possession of Samar Qand vendee‑appellant alone over a part of the suit land after about 10 years of the execution of the unregistered sale deeds cannot be considered possession under the sale by the said deeds so as to attract the provision of subsection (i) of section 31 of the N. W. F. P. Pre‑emption Act. The sale by mutation No. 279 was attested on 20/23‑101966 for an area of 6 kanals 4.3/8 marlas with share of shamilat by the vendors, mentioned in the mutation, in favour of Samar Qand and Mir Jafar sons of Sohbat. Their brother Abdullah is not a vendee in this sale. Consequently I am in full agreement with the finding of the two Courts below that the sale transaction effected by mutation No. 279 is separate and distinct transaction than the bargain effected by the unre gistered sale deeds of 1944. The plaintiff's suit is, therefore, within time.

7. A legal question of partial pre‑emption has cropped up. The counsel for the parties were, therefore, given full opportunity to argue whether the plaintiff‑respondent's suit suffers from a defect of partial pre‑emption and if so whit will be its effect? By the impugned sale mutation No. 279, attested on 20/23‑10‑66, land measuring 6 kanals 4.3/8 marlas Mulkiat with share of shamilat has been sold. The plaintiff has sued for pos session by pre‑emption of the suit land only without the share of shamilat sold alongwith it. The plaintiff‑respondent, according to the revenue record, is owner of Mulkiat land as well as shamilat land. Share in shamilat land is a separate entity and is in itself landed property. The plaintiff, in the present suit, has not specifically averred, in the plaint, the reason for not including the shamilat land fin the suit. The right of pre‑emption, is, in essence, one of substitution, and not of repurchase. The pre‑emptor, therefore, is bound to take the place of the vendee or vendees in the original con tract. He must take over the whole bargain or forego his claim altogether, because he is not permitted to pick and choose. If in a suit for pre‑emption the plaintiff intentionally sues for less land than is covered by the sale, he loses the right of pre‑emption. Partial pre‑emption is not at all allowed. The rule of partial pre‑emption is so stringent that its non‑observance is always fatal for the suit. The plaintiff is, therefore, not entitled to split up the sale and sue for partial pre‑emption in the circumstances of the present case. The plaintiff's suit is, therefore, incompetent and he deserves to be non‑suited on this ground. See: (1) Muhammad Azim v. Sher Ali Khan and another A I R 1933 Pesh. 74. (2) Allah Rakhia Khan and others v. Kala Ram and others 67 I C 72 and (3) Dhala v. Khanun and others A I R 1935 Lah.

635. Reference is also made to: (1) Muhammad Ali v. Masha Jan and another P L D 1961 Pesh. 29. (2) Umar Khan v. Muhammad Khan P L D 1954 Pesh. 11 and (3) Haji Khan Muhammad v. Yaqub Khan P L D 1956 Pesh. 96.

8. The learned counsel for the plaintiff‑respondent argued that the matter of partial pre‑emption could not be adverted to in the instant case, as it was not raised in the written statement, and no issue was framed to that effect. The contention is not correct, because if on the facts admitted or proved certain law becomes applicable then it is the duty of the Court to apply that law. Reliance is placed on: (1) Haji Abdullah Khan and others v. Nisar Muhammad Khan and others P L D 1965 S C 690; and (2) Khan Azizul Hassan Khan v. Haji Muhammad Ismail P L D 1972 Lah.

142. In the result, the appeal is accepted on the point of partial' pre‑emption. The judgments and decrees of the two Courts below are set aside and the plaintiff's suit is dismissed. Parties to bear their own costs throughout. Appeal accepted.