1989SCMR994 (PLP)

NASIM HASAN SHAH, J.‑‑This is a petition for leave to appeal directed against the judgment and order, dated 31‑5‑1988 passed by a learned Single Judge of the Lahore High Court, Rawalpindi, Bench, Rawalpindi in Civil Revision No.1141 of 1975. Land measuring 4 kanals and 13 marlas 385/576 share bearing survey number 3938 in the revenue estate of Moorat, Tehsil Fateh Jang, District Campbellpur, was owned by Fida Hussain, Akram Shah sons of Shah Jee and Sabir Shah son of Basharat Shah. The abovesaid owner sold the same in favour of respondent Nos. 2 to 4 through Mutation No.2275 sanctioned on 12‑&1970 for a sum of Rs.900. The said vendees subsequently sold the said land in favour of the petitioner in recognition of her superior right of pre‑emption through mutation number 2295 entered on 10‑6‑1971 and sanctioned on 24‑&1971. Karam Shah respondent No.l filed a suit for possession of the said land through pre‑emption. He based his superior right of pre‑emption on the ground of his claim of co‑sharership and ownership in the estate. Four issues were framed by the learned trial Judge of which the following two are relevant for our present purposes:‑ (1) Whether Defendants Nos. 1 to 3 have sold the land to Defendant No.4? If so, when and with what effect? OPD (2) Whether the plaintiff has superior pre‑emptive right to that of the defendants? OP The learned Civil Judge after hearing the evidence was of the opinion that the sale in favour of the present petitioner was completed on 24‑6‑1971 and not on 10‑6‑1971. On Issue No.2, it was held that the plaintiff being an owner in the village has a superior qualification to acquire the land. The suit of the plaintiff was decreed on 16‑4‑1975. The petitioner preferred an appeal against the aforementioned judgment and decree and the learned District Judge was pleased to reverse the finding of the learned trial Judge on Issue No. 1 holding that the sale had taken place on 10‑6‑1971 and not on 24‑6‑1971 when the mutation was sanctioned. Accordingly, he accepted the appeal filed by the petitioner and dismissed the suit of the plaintiff, vide judgment, dated 5‑6‑1975. Feeling aggrieved, the plaintiff challenged the judgment and decree of the learned District Judge in the Lahore High Court by filing a Civil Revision (Civil Revision No.1141 of 1975). A learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi accepted the petition and reversed the finding on Issue No.l recorded by the learned District Judge and restored that of the trial Judge vide judgment, dated 31‑5‑1988. Hence this petition for leave. The learned counsel for the petitioner has submitted that the petitioner admittedly had a superior right of pre‑emption as compared to the pre‑emptor. The petitioner purchased the suit land from the original vendees in recognition of the superior right of pre‑emption within one year of the original sale. In such a situation the pre‑emption suit was liable to be dismissed. The sale in favour of the petitioner made by the original vendees was entered (Mutation No. 2295) on 10‑6‑1971. Although it was sanctioned on 24‑6‑1971 but the sale was completed on 10‑6‑1971 because according to the learned Counsel for the petitioner for completion of the sale, attestation of mutation is not necessary, nor is the passing of possession nor payment of whole of the sale price necessary. He submits that under section 54 of the Transfer of Property Act, a sale is complete even if only a part of the sale price or even nothing out of it is paid. The hypothesis on which the High Court based its finding that the sale could not be considered complete namely the circumstance that the delivery of possession had not been established, was untenable. The submission that the High Court should not have interfered in revisional jurisdiction with the finding recorded by the learned District Judge in the circumstances of this case, therefore, requires further consideration Leave granted. Security shall be furnished in the sum of Rs.5,

000. The appeal shall be made ready on the present record with liberty to the parties to add further documents, if any and put up for hearing on an early date. AA./G‑164/S Leave to appeal granted.