1989 PLP 1079 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑This appeal by right arises from the judgment and decree of a learned Single Judge of the Lahore High Court, Lahore, dated 3‑12‑1980.

2. Land measuring 438 Kanals alongwith electric motor, meter and house/haveli, a hand pump, situate in Mauza Kharal, tehsil Narowal, District Sialkot, was purchased by the appellants from an allottee under the Border Scheme through a registered sale‑deed dated 13‑6‑1972 for an ostensible sum of Rs.1,00,

000. The sale was pre‑empted by Muhammad All and Barkat Ali, sons of Lal Din (for 1/2 to be shared by them equally) alongwith one Abdullah who died during the pendency of the suit and is now represented by respondents 3 to 6 for the other half, for Rs.43,000, on the ground that they were the owners in the estate; that respondents 1 and 2 have been and are tenants of a portion, of the suit land since prior to the sale and as such have a preferential right of pre‑emption against the appellants who have no such right.

3. The plaint was filed with a court‑fee of Re.l. The deficiency was to be made up by 23‑6‑1973 but the same was done on 5‑7‑1973.

4. The suit was resisted on the grounds that the respondents were neither the owners in the estate nor the tenants of any portion of the land as alleged; that the suit is bad for partial pre‑emption; that the plaint was presented with a court fee of Re.l and thus the plaint was liable to be rejected under Order VII rule 11, C.P.C. and further that there was no proper and valid plaint before the Court within the prescribed period of limitation.

5. As a result of the pleadings the learned trial Court framed as many as eleven issues in the case. After recording the evidence led by the parties the learned trial Court on the basis of its findings on issue No. 1 which was with regard to superior right of pre‑emption and issue No. 6 which pertained to partial pre‑emption dismissed the suit vide its judgment dated 18‑9‑1975. The respondents then took up the matter in appeal where the learned Additional District Judge, Siaikot, vide his judgment dated 9‑1‑1978, maintained the finding of the trial Court on the issue of superior right of pre‑emption but reversed the finding of the trial Court on the issue of partial pre‑emption and ultimately dismissed their suit by holding that they did not have superior right of pre emption and also that the appeal was barred by time.

6. Muhammad Ali and other respondents still not satisfied questioned the findings of the two Courts through a regular second appeal. This has been allowed as per the impugned judgment whereby while reversing the conclusion arrived at by the two Courts below on issue No. 1, the finding of the first Appellate Court on issue No. 6 has been maintained and it has also been held that the appeal was not barred by time.

7. We have heard M/s. A.R. Sheikh and Bashir Ahmad Ansari, Senior Advocates, for and against the appeal at considerable length. Though at the bar arguments were addressed on other aspects of the appeal also but the main controversy revolved around issue No. 1 which was with regard to the claim of superior right of pre‑emption by the respondents. The learned trial Court has non‑suited the respondents on this issue in the following manner: "So far as Muhammad Ali and Barkat plaintiffs are concerned, they are not proved owners in estate according to the Jamabandi Exh. P.3. Their names do not appear at all in the said Jamabandi. However, their father's name appears there but he is not the pre‑emptor. The plaintiffs Nos. 1 and 2 however, became owners‑in‑estate by the death of their father when mutation of inheritance (Exh. P.4) was attested in their favour on 7‑1‑1973. The sale took place on 13‑6‑1972, meaning that the plaintiffs were not owners in estate on 13‑6‑1972, even through inheritance, as no such proof is on the tile. The result of the above discussion is that plaintiffs Nos. 1 and 2, have failed to prove themselves as owners‑in‑estate. Now the position is that plaintiffs Nos. 1 and 2, joined the deceased plaintiff Abdullah as strangers and continue to be so till today when the judgment is being delivered; they have not as yet withdrawn from the present suit which fact is fatal even for the rest of the plaintiffs rendering them having no superior right of pre‑emption for the sale in dispute. The above findings were concurred by the learned Additional District Judge as under: "Now I refer to the ownership of the plaintiffs in the estate. So far as Abdullah or his heirs were concerned they had been found to be owners in the estate by the lower Court. About Muhammad Ali and Barkat Ali plaintiffs‑appellants it was stated that at the time of sale they were not owners in the village. The relevant documents produced by these plaintiffs‑appellants in this behalf was a copy of mutation Exh. P.4. This was a mutation attested in favour of Muhammad Ali and Barkat Ali on the death of their father Lal Din. Column 13 of this mutation shows that Lal Din, their father, had died one month prior to the report with the ,Patwari which was on 1‑12‑1972. According to this the date of death of Lal Din, father of these plaintiffs, comes in November, 1972. Now the sale sought to be pre‑empted had taken place on 13‑6‑1972. Thus at the time of sale Barkat Ali and Muhammad Ali could not be regarded as owner in the village and these plaintiffs are to be regarded as strangers joined by Abdullah or his successors and on the principle of sinker these plaintiffs also disentitled Abdullah and his successors from pre‑empting the same." The learned Judge in his Chambers while dealing with the appeal did not say a single word about the claim of tenancy by respondents 1 and 2 and thus the findings of the Courts below that these respondents were not the tenants of the suit land and thus have no superior right of pre‑emption stand finally concluded on that score. However, while reversing the findings of the two Courts on the question of ownership in the estate it was held by the learned Judge: "It is also not correct to say that the right of pre‑emption was not heritable or that the pre‑emptors were deprived of its exercise if their father had not exercised the right during his lifetime. It has been held by the Courts below that the father of Muhammad Ali and Barkat Ali had died after the sale, but he did not exercise his right of pre‑emption, and therefore, his sons above named could not exercise the right which they did not hold at the time of the sale. Learned counsel for the respondent has not been able to point out any evidence except the contents of a ,mutation (Exh. P.4) to show that Lal the father of Muhammad Ali and Barkat Ali appellants on whose death they claimed pre‑emptive right had died after the sale under pre‑emption. It appears from Mutation No. 10 (Exh. P.4) that the Patwari entered it on 1‑12‑1972; and attested on 7‑1 -1973. In column No. 13, it recites "inheritance of Lal Din owner, period of one‑month, report No. 133". The two Courts found that Lal was a reported to have died a month prior to the date of making entries in the mutation, and thus presumed that Lai had died after the sale. Facts stated in the mutation are, in the eye of law, not proved facts and cannot even be presumed true. Although Muhammad Ali was shown to have joined the proceedings before the Revenue Officer, yet the source of information about said entries in Column No. 13, cannot be attributed to him. There is no other evidence on either side which may give a hint that Lal had died after the sale. It cannot be thus said that these appellants were not the owners at the time of the sale."

8. The question whether the right of pre‑emption is heritable or not has been considered by this Court in two recent cases reported as Azizur Rehman v. Muhammad Nawaz P L D 1988 S C 384 and Muhammad Younas v. Khushal 1989 S C M R

69. Dealing with the former case, one of us (the learned Chief Justice who has written the judgment) basing his findings on an earlier decision of the Lahore High Court reported as Abdul Khaliq v. Abdul Ghani P L D 1969 Lah. 249 has held: "....Pre‑emption Act declares the right of pre‑emption to vest in certain persons at the time of sale. Therefore, a pre‑emptor who had .no right on the date of sale cannot improve his right after the sale by inheritance as the cause of action had already come into existence and the subsequent qualification by inheritance could not vest him with superior status after the accrual of cause of action." The same principle has been followed in the latter case.

9. Now let us examine the case in hand on the touchstone of the above principle. The sale in this case admittedly took place on 13‑6‑1972 through a registered sale‑deed. Lal Din, the father of Muhammad Ali and Barkat Ali respondents, who was an owner in the estate and was then alive, was alleged to have died somewhere in November 1972 and the suit was filed by the respondents on 12‑6‑1973. As per the findings of the lower Appellate Courts, inheritance mutation of Lal Din was entered on 1‑12‑1972 wherein in column No.13 the death was reported to be "period of one month". This mutation was attested on 7‑1‑1973 in the presence of Muhammad Ali and other heirs of Lal Din. No objection was taken or raised as to the date of death of Lai Din other than the one given in column No. 13 either at the time of making the entry of the mutation of inheritance or at the time of attestation of inheritance mutation. Since there was un-rebutted evidence on the record as to the death of Lal Din in November ‑1972 and for other reasons recorded, the. request of the respondents for allowing them to produce additional evidence had rightly been disallowed by the first appellate Court.

10. In view of the above, respondents 1 and 2 were not the owners the estate at the time of sale and had no superior right of pre‑emption. Then, Maim was rightly refused by the first two Courts. Ac for the case of respondents 3 to 6, since they had joined with them such persons who were strangers, they have been hit by the principle of sinker and thus their suit was also rightly dismissed by the learned trial and the first Appellate Courts.

11. As a result, the appeal succeeds and the judgment of the High court dated 3‑12‑1980 is set aside with costs. AA./S‑254/S Appeal accepted.