P L D 2009 Lahore 119 (PLP)

MIAN SAQIB NISAR, J.

The present civil revision has been filed against the judgment and decree dated 31-3-2005, passed by the learned Addl. District Judge, whereby the appeal of the respondent was allowed and the judgment and decree of the learned trial court dismissing the pre-emption suit of the respondent was reversed and the same was decreed.

2. Brief facts of the case are that the petitioner through registered sale deed dated 26-8-1999, purchased the suit land measuring 3 Kanals and 6 Marlas for a consideration of Rs.2,01,

000. The respondent, on 23-12-1999,brought a suit for the pre-emption against the petitioner claiming that he learnt about the sale on 17-12-1999 and made Talb-i-Muwathibat, whereas, after issuance of notice of Talb-i-Ishhad dated 21-12-1999, the pre-emption action was propounded on the basis of being co-sharer in the Khata, out of which, the suit land has been sold. The petitioner contested the matter, joined the issues and raised, the objection that the Talbs have not been made in accordance with law; the petitioner himself is a co-sharer of the khata. The learned trial court after framing of issues and putting the parties to trial, dismissed the suit vide judgment and decree dated 21-12-2004, holding that the respondent has failed to prove the Talbs; that the petitioner being a co-sharer in the khata, the sale could not be pre-empted, but the appellate Court as mentioned earlier by reversing the finding on the two main issues, has decreed the suit.

3. Learned counsel for the petitioner contends that the respondent has failed to prove the Talbs. P.W.2 and P.W.3 namely Nazir Ahmed and Muhammad Bashir while appearing as witnesses of Talb-i-Muwathibat have not given any exact date, rather they vaguely mentioned that the respondent came to know of the sale 3-1/2 years ago; their statements were recorded on 25-6-2002 and thus calculating 3-1/2 years aback, the date comes to 24-12-1998. As regards P.W.4 Muhammad Yasin informer, though he has mentioned the date, but has also stated in the cross-examination that it is 4-1/2 years ago, that the petitioner came to know of the sale and it is quarter to four months after the date of sale, when she got the knowledge of the same. This also is the statement of the respondent as well. Thus taking the evidence in totality, the specific contradictions mentioned above are sufficient to establish that the story of making of Talb-i-Muwathibat has been concocted and accordingly the talb is not proved as has been required by the dictum of Hon'ble Supreme Court reported as Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC

302. Learned counsel for the petitioner has also argued that though the objection of limitation was not taken in defence and therefore, no issue was framed in this regard, but being a pure question of law, it should be permitted to be raised at this stage; he submits that the impugned sale-deed admittedly was executed on 13-8-1999; it was registered on 26-8-1999, the suit was filed on 23-12-1999 and being beyond four months, it was barred by 9 days, because according to section 47 of the Registration Act as interpreted by number of judgments, particularly, PLD 2005 Lah. 102 (Muhammad Sharif and others v. Meraj Din and others), the limitation shall commence from the date of execution of the sale-deed and not from the registration.

4. Heard. As far as the question, if the respondent was able to prove the Talbs, suffice it to say that the exact date, time, place of the Talb-i-Muwathibat has been mentioned in the plaint and' through the plaintiff's testimony, corroborated by the statement of the informer, the above particulars have been proved. Though the other two witnesses of Talb-i-Muwathibat, have not given the exact date, but have mentioned it to be 3-1/2 years from the date of their statements, which were made on 25-6-2003 and not on 25-6-2002, as claimed by the petitioner's counsel, thus while calculating this period, the time almost corresponds quite close to the date of Talb-i-Muwathibat and hardly a few days difference, which according to the law laid down in the judgment reported as Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410 can possibly be the result of lapse of human memory, be given that much importance.

5. As far as Talb-i-Ishhad is concerned, the same stand proved on behalf of the respondent and no significant argument in this regard has been made by the petitioner's counsel. It is also not proved on the record, if the petitioner is a co-sharer in the khata out of which the sale has been made and on this account, the right of the respondent to pre-empt the land stands established.

6. On the point of limitation, it may be held that this plea was not raised by the petitioner in his defence. It is on this account that no issue was framed. This has not been the case of the petitioner in the memorandum of the first appeal or even set out in the grounds of the instant revision. However, still the point has been argued before me and deeming it to be a pure question of law, because the admitted facts are available on record i.e. about the execution of the sale deed on 13-8-1999 and its registration dated 26-8-1999 and the filing of the suit on 3-12-1999. I have decided to take it up in order to adjudicate, if the time of four months provided by section 30 of the Punjab Pre-emption Act, 1991, shall be reckoned from the date of the execution of the sale-deed or from the "date of the registration". Section 30 of the Act, clearly prescribes that the period of limitation for a suit to enforce a right of pre-emption under the Act, shall be four months from the date of the registration of the sale-deed. Whether on account of section 47 of the Registration Act, this date of registration can be construed as the date of the execution and thus the limitation shall commence therefrom suffice it to say that according to section 47 ibid, a registered document shall operate from the time from which the same commence to operate, if no registration thereof had been required or made and not from the time of its registration. This section has altogether different scope, object and connotation and is restricted to the legal concept as to when the rights and obligations founded on the basis of the registered document and the transaction covered thereby, shall emanate; this provision, however, in no manner, shall regulate or circumscribe the period of limitation as prescribed by section 30 of the Punjab Pre-emption Act, 1991, which is a very explicit provision of law and is independent in its application. In fact, the relevant provisions of the Registration Act for the understanding as to what is the date of registration of the instrument is section 60 thereof, which provides that after having complied with certain requirements of law, the registering officer shall endorse thereupon a certificate containing the word "registered" and it is thus this certificate carry the date of registration, which is within the purview of section 30 of the Punjab Pre-emption Act, 1991, from where the limitation would commence.

7. In order to support the above view it is pertinent to mention that while interpreting Article 10 of the Limitation Act, 1877, pertaining to the suit for pre-emption under the previous law, which provision in some respect is analogous to section 30 of the Act, 1991, it has been held in the case reported as Fazal Din v. Abdul Hamid and another PLD 1967 Lah. 378 that the date of registration means date when deed is entered in registration book, the limitation starts from that date. Similarly, in the Civil Judgments No.92 of the Punjab Record titled Bhanjan Ram and another v. Gopala Ram and another it is enunciated that "the limitation provided for a suit to enforce a right of pre-emption depending on registration under Article 10 of the Limitation Act, 1877, begins to run from the date when the endorsement of sale is registered within the meaning of section 60 of the Registration Act and not from the date of its provision for registration". Resultantly, I am of the considered view that in the present case, as the date of registration is 26-8-1999 therefore, the suit brought on 23-12-1999 was well within time and the objection raised by the petitioner is untenable under the law. In the light of above, this petition has no merits and is hereby dismissed. M.B.A./S-154/L Petition dismissed.