1999 PLP 1870 (SCMR)

ABDUR REHMAN KHAN, J.

This appeal has been moved with the leave of the Court to challenge the legality of the judgment delivered by a learned Judge of the High Court on 11-5-1993; whereby, in second appeal the concurrent judgments of the first Appellate and Trial Courts were reversed and consequently, the 'suit for possession through pre-emption by the appellant/plaintiff, was dismissed. 2.Muhammad Fazal plaintiff instituted a' suit for possession asserting therein superior pre-emptive right being co-sharer in the land sold. Respondent/vendee contested the suit, denied the claim of superior right of the plaintiff and instead alleged that he was possessed of superior right being tenant of the disputed land. 3.The learned Trial Court by judgment dated 20-10-1975 decreed the suit by holding that the plaintiff had superior right of pre-emption as co-sharer and that the defendant could not prove his tenancy over the suit land. The learned first Appellate Court affirmed this decision. But by the impugned judgment, a learned Judge in the High Court in second appeal, reversed the two agreed judgments and consequently dismissed the suit on the following three grounds:-- "(i) Defendant/vendee had superior right being tenant of the disputed land. (ii) Plaintiff/pre-emptor could not prove his co-shareshlip. (iii) Both the learned Courts below had not applied their minds to important aspect of the case that the provision of section 54 of the Transfer of Property Act are applicable to this part of the country and hence, a share in the Khata acquired by the respondent by means of sale otherwise than by registered deed did not confer any right or title to pre-empt the suit land. It was ruled by this Court in Muhammad Bakhsh v. Ziaullah and others (PLD 1971 Baghdad-ul-Jadid 42) that in absence of re0stration of sale, the pre-emptor acquired no valid right or title to be deemed a co-sharer and exercise a right of pre-emption under section 15 of the Punjab Pre-emption Act, 1913. This view was confirmed by the Supreme Court, in the said case cited in 1987 SCMR 988.

4. The learned counsel appearing for the appellant argued that there is convincing evidence on record to prove that the respondent/vendee had never remained a tenant of the disputed land and that the reliance on "Khasra Girdawari" by the High Court was not legally justified because of its doubtful nature and also on the ground that no presumption of correctness is attached to this document. It was also submitted that onus to prove superior right on the ground of tenancy was on the vendee which he had not completely discharged. It was further argued that the learned High Court legally erred in disturbing the finding of fact arrived at by the first Appellate and the Trial Court holding that the defendant had not been able to prove his tenancy over the suit land particularly when no misreading or non-reading of any evidence could be pointed out. We agree with the submission of the learned counsel as the Trial Court and the first Appellate Courts after discussing the evidence on record had held that the vendee could not prove his tenancy over any portion of the suit land. It is to be noted in this context that out of an area of 200 Kanals consisting of twenty-five number Khasra, 12/25th share equal to 96 Kanals is subject matter of pre-emption suit. The defendant could not prove as to which one of the co-sharer was in occupation of the area sold and under whom he was tenant. The entries in the Khasra Girdawari are also not consistent and on perusal appears to be of doubtful nature. None of the co-sharer could be produced to depose that the defendant was a tenant. Therefore, there was no justification for the High Court for disturbing the agreed decisions of the two Courts on this count. It was also argued by the appellant that the co-sharership of the plaintiff over the suit land was established from the Revenue Record brought on case file and from the fact that the defendant had not denied it and, as such, the High Court has erred in law in reversing this finding. It is correct that the Revenue Record support the co-sharership of the plaintiff and this is also a fact that the defendant did not deny this co-sharership of the plaintiff in his statement in Court. The contrary finding of the High Court in reversing this finding is, therefore, not correct and is up set.

5. However, the learned counsel for the appellant was unable to successfully challenge the legal point as reproduced above in item No.3 and as enunciated in PLD 1971 Baghdad-ul-Jadid 42 to the effect that in the area where section 54 of the Transfer of Property Act is enforced, a superior pre-emptive right as co-sharer cannot be acquired unless the sale on the basis of which co shareship is claimed, has been made by registered sale-deed. This could not be controverted that section 54 of the Transfer of Property Act applies in the area in which the disputed sale took place and it could also not be denied that the right of co-sharership for superior right of pre-emption of the plaintiff was claimed on the strength of sale mutation in his favour and not registered deed. The learned High Court was, therefore, correct in view of the law laid down in PLD 1971 Baghdad-ul-Jadid 42, that by such co-sharership superior right of pre-emption could not be asserted. This rule in the said judgment is to the effect. "In a suit for pre-emption the pr e-emptor claimed a superior right of pre-emption on the basis of being a co-sharer in the Khata. This share in Khata was acquired by means of a sale evidenced by mutation. Section 54 of the Transfer of Property Act was applicable to the said sale but no registered instrument was executed. It was held that in absence of registration, the pre-emptor did not acquire any valid right-or title so as to be deemed a co-sharer entitled to exercise the right of pre emption under section 15 of the Punjab Pre-emption Act, 1913". This rule was subsequently approved by this Court in Muhammad Bakhsh v. Zia Ullah and others (1983 SCMR 988) as it was laid down therein "As the transactions did not satisfy the requirements of section 54 of the Transfer of Property Act they did not confer any right or interest on the plaintiffs/pre-emptors such as could be made the basis for claiming either ownership or co-sharershp".

6. We, therefore, while agreeing only with the, reasons as contained Item No.3 above, dismiss this appeal and leave the parties to bear their own cost of litigation. H.B.T.[M-234/S Appeal dismissed