1989 PLP 978 (CLC)

‑‑‑S. 30‑‑Land Reforms Regulation, 1972 [M.L.R.] 115, para. 25‑ Pre‑emption suit‑‑Vendees' contradictory pleas about delivery of possession before sale‑‑ Effect‑‑Vendees' plea that he took possession of land before sale, from a lessee of vendor as a tenant and thus suit filed from the date of sale was beyond limitation, repelled‑‑Such vaendee could not state in the same breath that he took possession as an owner under the sale and as a tenant of such land‑‑Two positions taken by vendee were inconsistent with each other to the extent that one would destroy the other‑‑Perusal of written statement showed that vendee's whole stress was to show that his possession was as tenant and since he failed there, it was not open to him to claim that his possession was of vendee under the sale. Hakim Muhammad Buta and another v. Habib Ahmad and others P L D 1985 SC 153 ref. (e) Punjab Pre‑emption Act (I of 1913)‑‑ ‑‑‑S. 15‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appear-First Appellate Court's finding that suit was barred by limitation for failure to make good deficiency of court‑fee within period of limitation of filing suit, was set aside and pre‑Pmptor's suit was decreed in second appeal as per terms of Trial Court. C . M . Sarwar for Appellant. Ch. Mushtaq Ahmad Khan and Malik Amjad Pervaiz for Respondent. Date of hearing: 3rd December, 1988. This R.S.A. impugns the judgment and decree dated 6‑1‑1981, passed by the learned Additional District Judge, Faisalabad, whereby the respondent‑vendee's appeal was accepted and the appellant plaintiff s suit for pre‑emption was dismissed on the short ground that by having failed to pay necessary court‑fee in time, his suit had become barred by limitation.

2. For the purposes of the present R.S.A., other facts need not be given because the only point canvassed was whether failure to pay court‑fee in time could make the suit barred by limitation. The sale had taken place by registered deed on 9‑9‑1974. The suit was filed on 2‑9‑1975 fixing the valuation of the suit at Rs.100 both for court‑fee and jurisdiction. It was maintained that this amount represented fifteen times of the net profits accruing during the preceding year and further that if need arose, the deficiency would be made up. The Court noted that the plaint was deficiently stamped particularly in view of the fact that the consideration amount passing for the land was Rs.1,22,

000. It, therefore, in its very first order dated 2‑9‑1975, directed the appellant‑plaintiff to make good the deficiency before the next date, that is, 26‑11‑1975. The record shows that this order was duly complied with inasmuch as the deficient portion of the court‑fee was filed on 25‑11‑1975, that is, a day before the terminal date of 26‑11‑1975, fixed in the aforementioned order.

3. The respondent‑vendee contested the suit taking preliminary objections, among others, that it was barred by time; that there was contumacy on the part of the appellant‑plaintiff in having paid less court‑fee in time; and that his attempt to have paid it up after the expiry of the period prescribed for the suit was not enough either to condone the delay or to extend the limitation. He traversed the appellant's better right of pre‑emption more specifically on the ground that he had taken over possession of the land before sale as tenant from its lessee, Ata Ullah, by virtue of an agreement dated 31‑8‑1974 and, hence, in his capacity as such tenant, he could defeat the appellant's better right of pre‑emption.

4. A number of issues were framed on the various contentions raised in the pleadings. The trial Court decreed the suit holding that the court‑fee having been paid before the date fixed by it shall be deemed to have been paid in time and that the suit could not be defeated or, the score of this objection. It spurned also the contention that the respondent‑vendee was tenant of the land. His entry upon the land in dispute taking place just nine days before the sale under the foot of the agreement dated 31‑8‑1974, executed between him and the former lessee, Ata Ullah, was held not sufficient to constitute him a tenant so as to claim prior right of pre‑emption against all others.

5. In appeal, however, the learned Additional District Judge, in the impugned judgment, took a different view relying upon Walayat Khatoon's case reported in P L D 1979 SC 821 that failure for a long period of one year on the part of the appellant‑plaintiff to obtain necessary data in regard to the net profits accruing from the land during the year preceding the suit, was, by all standards, contumacious and that the trial Court had no authority whatsoever to extend time for him, suo motu, to file the same after the expiry of the period of one year, prescribed for the suit. Consequently, he reversed the finding on the point and dismissed the appellant's suit. He, however, affirmed other findings of the trial Court, in particular, to the effect that the so‑called entry of the respondent upon the land a few days before the sale did not turn him into a tenant so as to claim prior right of pre‑emption against the appellant‑plaintiff.

6. The law on the point of court‑fee has undergone a diametrical change. The rule propounded in Walayat Khatoon's case is no more efficacious as held in Shahna Khan v. Aulia Khan and others P L D' 1984 SC

157. It has been now laid down that bar of limitation will' not apply to a suit, which has been brought on a deficient court‑fee and that it is obligatory for the trial Court to, firstly, determine what the deficiency is, and secondly to adjourn the case as a matter of compulsion to enable the plaintiff to make good the deficiency, if any. This could be done, according to rule now obtaining, even after the expiry of the period of one year, prescribed for a pre‑emption suit. Learned counsel for the respondent could not defend the impugned judgment on the point. The trial Court, of course, without determining the precise deficiency in the court‑fee, adjourned the hearing of the suit directing the appellant to make good the same. The appellant was vigilant enough to have complied with this direction inasmuch as he filed the requisite court‑fee on 25‑11‑1975, i.e. a day earlier than the terminal date of 26‑11‑1975. There was no further adjournment. The Court appears to have had performed its obligation in this behalf, and even though the order was passed suo motu, it' could not be assailed on this ground. Consequently, the finding on It' the point, recorded by the lower .Appellate Court, is set aside and that of the trial Court is restored.

7. An attempt was made to support the bar of limitation although the respondent‑defendant did not file any cross‑objection in regard to the adverse finding given against him. Reliance in this behalf was placed. upor Khairati and 4 others v. Aleem‑ud‑Din and another PLD 1973 SC 295 and Mst. Zohran Bibi v. Manzoor Ahmad and 2 others PLD 1975 Lah.

318. Support was sought for this view from the fact that the delivery of possession under the sale nine days before the registration of the deed had the effect of making the present suit barred by time. No doubt, the plea of limitation was raised in the written statement but there was no mention of the fact that the idea behind was to state that the respondent‑vendee had taken physical possession of the land under the sale. What he showed in the written statement was that he had taken possession of the land before the sale and that too not from the vendor but nom a lessee already occupying it under him. Obviously, coming into possession of the land much earlier than the sale was of no effect. In order to attract limitation for such entry, it had essentially to be under the sale. The idea is that such a change of possession would constitute a phenomenon to make aware all the potential pre‑emptors to assert their right in time. If in a given case, as was indicated here, possession already lay with the vendee, it would not constitute enough notice of something new to put on guard the potential pre‑emptors. Further, taking possession under the sale was a question of fact which had to be categorically asserted so that the opposite party might meet it. The typical plea taken in the written statement in that context did not suffice to exhibit that the change of possession, if any, was relatable to sale. It was something between a lessee under the vendor and the vendee and apparently had nothing to do directly with the vendor himself. In simpler words, the possession was not delivered by the vendor, nor indeed was he himself in possession at the pertinent time owing to his having already leased out the land in favour of a third person. For this reason, it turned out to be a case where delivery of physical possession was not possible to the vendee under the sale. Still further, the respondent's contention was that he entered as a tenant. If it were so, he could not state in the same breath that he entered as an owner. The two positions were inconsistent with each other to the extent that one would mutually destroy the other. An owner cannot be his own tenant and vice versa a tenant cannot be his own owner. A perusal of the written statement reveals that the whole stress was to show that possession of the respondent was as tenant and since he failed there, it was not open to him to bolster up a claim of showing his possession to be that of vendee under the sale. It was argued that under the principle enunciated ink Hakim Muhammad Buta and another v. Habib Ahmad and others PLDID 1985 SC 153, point of limitation could be raised even without having been specifically urged in the written statement. I do not think it is so, all the more where such a plea is a mixed question of fact and law. The factual aspect involved was whether or not the possession was taken as vendee in contradiction to the status of a tenant. Failure in the written statement to show the possession as vendee was quite material and it could not be allowed to be raked up at this late stage. In Sadiq Hussain and others v. Ghulam Rasool 1986 S C M R 322, Syed Abdullah Shah and others v.. Abdul Ghaffar Khan and others 1987 S C M R 925 and Mst. Fauzia Parveen alias Fauzia Tiwana v. Mst. Sahib Khatoon and others 1988 S C M R 552 even the plea of limitation was not allowed to be raised at late stage say in the second appeal or revision and applying the same rule here, the respondent could net be allowed to misconstrue his objection as to limitation taken up in the written statement.

8. As a result, the R.S.A. is accepted. The impugned judgment and decree are set aside and that of the trial Court are restored. The appellant‑pre‑emptor shall, if he has not already, deposit the pre‑emption amount of Rs.1,22,000 including the 'zar‑i‑panjam' by or before 14‑2‑1989, failing which his suit shall stand dismissed. Parties are left to bear their own costs. A.A./P‑51/L. Appeal accepted.