1998 PLP 1620 (CLC)

3. Learned trial Court, out of the pleadings of the parties, flamed the following issues: "(1) Whether the plaintiffs have superior right of pre‑emption? OPP (2) Whether Rs.30,000 were fixed in good faith or actually paid as price of the suit land? OPD (3) If issue No.2 is not proved what was the market value of the suit land? O.P. Parties. (4) Whether the description of the suit land is incorrect; if so, what is the correct description? OPD (5) Whether the suit of the plaintiffs is time‑barred? OPD (6) Whether the defendants have made improvement to the extent of Rs.5,000 upon the suit land? OPD (7) Whether the suit of the plaintiffs is deficient in court‑fee; if so, what is the correct fees? OPD (8) Relief."

4. The trial Court after recording the evidence and hearing the parties, decided Issue No.1 regarding the superior right of pre‑emption in favour of the plaintiffs and remaining issues were decided against the petitioners and decreed the respondents' suit. The petitioners' appeal, as mentioned above, has been dismissed. Hence this revision petition.

5. I have heard the learned counsel for the parties at this pre‑admission stage and have also gone through the record, copy of which has been attached with this petition.

6. It is contended by the learned counsel for the petitioners that the suit land is situated in Tehsil Khairpur whereas the petitioners' appeal was illegally entrusted to Additional District Judge, Hasilpur and the Appellate Court lacked the territorial jurisdiction to decide the appeal and in this context it has been explained that at the time of institution of the appeal, no Additional District Judge was posted either at Khairpur or at Hasilpur, the appeal was, therefore, filed before District Judge, Bahawalpur, later on, an Additional District Judge was posted at Hasilpur and there was no Additional District Judge in Khairpur and Khairpur remained attached with the District Headquarters, Bahawalpur and the appeal ought to have been heard at Bahawalpur. Reliance is placed on Sultan Ali v. Khushi Muhammad (PLD 1983 SC 243) to contend that the matter of absence of jurisdiction can never be waived by the parties nor can an illegality in an order be cured by the consent of parties. It has been submitted next that in the area of Bahawalpur, oral sale is not recognised by law and the pre‑emptors were required to prove that they have acquired land in the village through registered sale‑deed, they have miserably failed to prove and as such they were not entitled to obtain possession through the exercise of right of pre‑emption, consequently decisions of Courts below on Issue No. l suffer from patent illegality. Reliance in this regard is placed on Muhammad Bakhsh v. Zia Ullah and others (1983 SCMR 988) and on Pir Bakhsh v. Budhoo (PLD 1978 Baghdad‑ul‑Jadid 86). In the former, leave to appeal was granted by the Honourable Supreme Court to examine whether the petitioner‑pre‑emptor could, on basis of sales admitted but otherwise in violation of section 54 of Transfer of Property Act, enforce his right of pre‑emption against vendees and vide the above judgment the honourable Supreme Court held that the transaction of sale in question did not satisfy the requirements of section 54 of Transfer of Property Act, therefore, the sale did not confer‑any right or interest on plaintiff/pre‑emptor such as could be made basis for claiming either ownership or co‑sharership and it was further held that meaning and scope of term "sale" as defined in section 3(5), Punjab Pre‑emption Act (I of 1913) was wider than that of "sale" as defined and dealt with under section 54 of the Transfer of Property Act, 1882; however, right to pre‑empt a sale‑could not be given extended meaning to include within its orbit all inchoate, incomplete and imperfect sales as good sales for the purposes of acquiring an ascertainable or enforceable right of pre‑emption and in this regard provisions of section 54‑A of Transfer of Property Act, 1882 were also considered and it was held by the Honourable Supreme Court that the same does not confer a title on vendee and creates no real right except one of defending possession but merely creates rights of estoppel between proposed transferee and transferor. In the latter citation (Pir Bakhsh v. Budhoo), a learned Single Judge of this Court held that pre‑emptor cannot succeed on basis of ownership obtained by sale in contravention of section 54 of the Transfer of Property Act, 1882 and the vendee too, in the like manner, cannot succeed in his plea of having equal right of pre‑emption unless acquisition by him of ownership is proved to be valid in accordance with section 54.

7. On the other hand, learned counsel appearing for the respondents plaintiffs while vehemently opposing this petition has submitted that under section 18 of the Civil Courts Ordinance (II of 1962) all appeals within the pecuniary jurisdiction of the District Judge from a decree or order of Civil Judge lie to the District Judge and under subsection (2) of section 18 of the abovesaid Ordinance, the District Judge can assign any appeal to any Additional District Judge and furthermore, if a general order has been passed by the District Judge then the appeals can be preferred to that Additional District Judge directly who can competently hear the same and decide. In regard to the matter of proof of pre‑emptor's ownership in Deh in terms of section 54 of the Transfer of Property Act, 1882, it has been contended by the learned counsel for the respondents that the pre‑emptor's ownership was admitted by D.W.1 Muhammad Tufail as well as D.W.2 Bashir Ahmad the defendant‑petitioner himself and, therefore, the pre‑emptor did not need to prove the same through documentary evidence. Reliance in this regard is placed on Allah Yar and others v. Ghulam Jeelani and others (1996 SCMR 662) wherein the Honourable Supreme Court held that ownership of land need not be proved only by producing documentary evidence, factum of ownership could also be proved by the oral evidence and where the plaintiffs' assertion that they were owners in the estate was not challenged in cross‑examination and defendants had failed to produce evidence in rebuttal, it is to be deemed that the plaintiffs have established their ownership in estate.

8. In order to ascertain the issue of lack of territorial jurisdiction of the Appellate Court, as asserted by the petitioners, a report was called for from District and Sessions Judge, Bahawalpur who has reported that vide Notification No.SO (Judl.‑II) 1(5)/93(P), dated 16th February, 1995, issued by Government of Punjab, Home Department, Lahore, Hasilpur Tehsil was declared as place of sitting of Court of Session, thereafter vide Notification No.200/RHC/AD&SJJ, dated 22nd October, 1995, the Honourable High Court, Lahore posted Ch. Ehsan Ahmad, Additional District and Sessions Judge at Hasilpur and after his posting, his jurisdiction was restricted to Sub‑Division Hasilpur. He has, however, also submitted that the appeal in question was previously pending in the Court of Ch. Akbar Ali Cheema, Additional District Judge, Bahawalpur and the same was withdrawn and entrusted to Additional District and Sessions Judge, Hasilpur by the orders of District and Sessions Judge, Bahawalpur under Endst. No.2689‑90/EB, dated 6‑11‑1995.

9. The report furnished by District and Sessions Judge, Bahawaipur shows that the petitioners' appeal was specifically entrusted to the Additional District Judge, Hasilpur by the District Judge, Bahawalpur and, therefore, no exception can be taken to the lawful authority of Additional District Judge, Hasilpur to decide the petitioners' appeal because the same was competently entrusted to him by District and Sessions Judge, Bahawalpur. The argument of the learned counsel for the petitioners that the Appellate Court had no territorial jurisdiction. to decide the appeal has, thus, no force.

10. Ali Sher plaintiff appeared as his own witness as P.W.2 and in answer to a question he stated that he is owner in Deh since the days of Hindus and obtained his land through mutation and a registry. D.W.1 Muhammad Tufail has admitted in cross‑examination that the plaintiffs were owners in the Deh prior to the disputed sale in favour of the defendants and further admitted that the defendants were not owners in the Deh prior to the sale which is the subject matter of the pre‑emption suit. Similarly, D.W.2 Bashir Ahmad, one of the defendants‑petitioners, admitted in the cross‑examination that the plaintiffs were I owners in the Deh prior to the sale m dispute and the defendants were not owners in the Deh. All this indicates that the assertion of the plaintiffs having become owners in the Deh through a registered sale‑deed was admitted by the petitioners‑defendants, thus, the plaintiffs had no need to prove the factum of ownership through documentary evidence when it was an admitted position between the parties. Even otherwise, there was no allegation that the plaintiffs became owners in Deh in contravention of section 54 of the Transfer of Property Act, 1882.

11. In view of the above discussions, I see no merit in this petition which is accordingly dismissed. However, under the circumstances, the parties are left to bear their own costs. A.A./M‑656/L ??????????????????????????????????????????????????????????? Revision dismissed