2004 PLP 882 (CLC)

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑

As the above entitled appeals are inter‑related and appeals Nos.4 and 5 of 1999 entitled above arise out of the single judgment of the High Court whereas Appeal No.3 of 1999 has direct bearing on the decision of other two appeals, the same are disposed of by this single judgment.

2. The brief facts of the case are that Muhammad Malik purchased suit‑land measuring one Kanal, four Marlas and one Sarsai vide sale deed dated 16‑12‑1993 for a consideration of Rs.72,

500. The said sale deed was pre‑empted by Ch. Yaqoob Javed in the trial Court alleging his superior right of pre‑emption. The trial Court after taking necessary proceedings in the case, dismissed the pre‑emption suit on the ground that as during the pendgncy of the suit, Muhammad Malik, vendee‑defendant, had improved his status by purchasing the suit‑land measuring 12 Marlas vide sale‑deed dated 17‑2‑1994 and became a co‑sharer in the suit‑land, the plaintiff, Ch. Yaqoob Javed, had no right of pre‑emption as being equal in status with the vendee, Muhammad Malik. Thus, the pre‑emption suit filed by Ch. Yaqoob Javed was dismissed. The appeal by Ch. Yaqoob Javed before the District Judge also failed. However, on appeal filed by Ch. Yaqoob Javed before the High Court, the same was accepted and the case was remanded to the trial Court, inter alia, on the ground that as the pre‑emption suit against the sale‑deed, dated 17‑2‑1994, whereby Muhammad Malik, vendee, had improved his title, had been remanded to the trial Court through a separate judgment, the pre‑emption suit filed by Ch. Yaqoob Javed regarding the sale‑deed dated 16‑12‑1993 must be kept pending by the trial Court till the pre emption suit filed against sale‑deed dated 17‑2‑1994 pertaining to the land measuring 12 Marlas was decided. Thus, Muhammad Malik and Ch. Yaqoob have filed cross‑Appeals Nos.4 and 5 of 1999, entitled above; Muhammad Malik contending that appeal filed by Ch. Yaqoob, respondent, should have been dismissed whereas Ch. Yaqoob filed appeal contending that the High Court instead of remanding the case to the trial Court, should have decreed his suit of pre‑emption.

3. So far as Appeal No.3 of 1999 entitled above is concerned, that pertains to the sale‑deed dated 17‑2‑1994 pertaining to 12 Marlas of land, whereby Muhammad Malik, vendee, alleges to have improved his title. The said suit was dismissed by the trial Court on the ground that it was time‑barred because the sale‑deed regarding 12 Marlas of land was executed on 17‑2‑1994 but instead of filing the suit within the period of four months, the same was filed on 4‑12‑1994, after ten months. The application for condonation of delay in filing the suit by Ch. Yaqoob was also dismissed on the ground that the plea of Ch Yaqoob that he had no knowledge of the sale‑deed dated 17‑2‑1994 was not tenable in the circumstances of the case and that there was no sufficient cause for condoning the delay in filing the pre‑emption suit. The High Court has remanded the suit filed against the sale‑deed dated 17‑2‑1994 observing that onus of issue regarding the limitation was wrongly placed upon the defendant, Muhammad Malik, rather the same should have been placed on Ch. Yaqoob Javed, plaintiff, and that issue should have been decided after recording the evidence of the parties because the question of limitation in the case was a mixed question of law and fact and could not be decided without recording evidence. It may also be observed that the High Court has also made observation in the judgment given in pre emption suit pertaining to sale‑deed dated 16‑12‑1993 that an Ordinance was also placed on record by Ch. Yaqoob Javed, pre‑emptor, that improvement of status during the pendency would not affect the right of pre‑emption of a party, which was available to such party at the time of the execution of the sale‑deed. The High Court also expressed the view that this aspect of the case also needs consideration by the trial Court as to whether the Ordinance would affect the suit of pre‑emption filed by Ch. Yaqoob against sale‑deed dated 16‑12‑1993.

4. First we deal with appeal entitled Muhammad Malik v. Ch. Yaqoob Javed Batalvi (Civil Appeal No.3 of 1999) which deals with the pre‑emption suit whereby land measuring 12 Marlas. was purchased by appellant, Muhammad Malik, vide sale‑deed dated 17‑2‑1994. Raja Liaqat Ali Khan, Advocate, the learned counsel for the appellant, has argued that the trial Court has dismissed the pre‑emption suit filed by respondent, Ch. Yaqoob Javed Batalvi, as being time‑barred. He has further submitted that no plea was taken in the plaint as to why the pre emption suit was filed after the prescribed period of limitation of four months. However, an application was filed about five months after the institution of suit seeking condonation of delay on the ground that the respondent‑pre‑emptor had no knowledge of the sale‑deed. He has argued that if the pre‑emption suit was filed five months prior to the application of condonation of delay, how it can be accepted that the pre emptor respondent was not aware of the registration of sale‑deed. He has argued that in dealing with the question of limitation each day has to be explained. He has argued that in the instant case not only that no reason was given by the respondent pre‑emptor for filing belated suit in the plaint but there is no explanation as to why the application for the condonation of delay was filed after the expiry of about five months. Thus, the learned counsel for the appellant has argued that the trial Court rightly refused the condonation of delay and dismissed the suit of the plaintiff‑respondent. He has further submitted that the findings of trial Court were upheld by the District Judge but the High Court without assigning any valid reason set aside the dismissal order of the suit filed by the respondent and remanded the case. He has argued that in previous round of litigation the High Court had dismissed the petition holding that the question regarding the limitation in the instant case did not require any evidence and order of the trial Court for hearing arguments on the point of limitation on issue No. 1 was upheld. Thus, the learned counsel contended that subsequently the same suit could not be remanded by the High Court after ignoring its earlier order, dated 2‑10‑1995. The learned counsel has further submitted that in view of the previous order of the sub‑Judge as well as the High Court there was no question of recording evidence of the plaintiff pre‑emptor on issue No. 1.

5. In reply, Ch. Yaqoob Javed Batalvi, plaintiff‑respondent, has himself controverted the arguments advanced on behalf of the appellant. He has argued that his application for recording evidence on issue No.1 was allowed by the trial Court. He has further submitted that he had no knowledge about the registration of sale‑deed in question and this was a valid reason for condoning the delay. He has argued that as the issue regarding the limitation in the instant case was mixed question of law and facts, the evidence on the issue was necessary to be recorded and thus, the High Court rightly remanded the case to the trial Court. He further submitted that while dealing with the question of condonation of delay the discretion should be liberally exercised in favour of concerned litigants. He has also submitted that as the pre‑emption suit regarding 12 Marlas is pending, it cannot be said that the appellant Muhammad Malik has improved the title by purchasing the land measuring 12 Marlas. He has maintained that even otherwise in view of section 20‑A of the Right of Prior Purchase Act which was introduced by an amendment, the improvement of title would not help the case of Muhammad Malik regarding sale‑deed dated 16‑12‑1993. Thus, he has argued that the other pre‑emption suit which pertains to the land measuring 1 Kanal, 4 Marlas and 1 Sarsai should be decreed in his favour. He has cited following authorities in support of his contentions:‑‑ In an unreported case entitled Rehmat than v. Sabir Hussain and another (Civil Appeal No. 1 of 1997 decided on 30‑4‑1997) it was held that the question of limitation is related to the question of taking of possession under sale needs resolution. Thus, it was held that the trial Court had committed error in deciding issue No.2 without recording evidence. Consequently, the order of the trial Court was set aside and the case was remanded for recording the evidence on preliminary issue. In case reported as Bashir Ahmed and 8 others v. Aftab Ahmad and 2 others PLD 1976 Lah. 1433 it was observed that as the fate of the case depended upon the genuineness of the Will alleged to have been made in favour of the plaintiff, decision on one of the issues separately was not possible. Thus, the order of the trial Curt whereby the application for deciding some of the issues as preliminary issues was rejected, was upheld by the High Court, observing that all the issues should be decided together. In the case reported as Rahmat Bibi and 4 others v. Ghazanfar Hussain and another PLD 1983 SC (AJ&K) 25 it has been held that while dealing with the question of condonation of delay the Court should be satisfied about the existence of sufficient cause for condoning the delay. It was observed that whether there existed any sufficient cause for condonation of delay or not, depended on the peculiar circumstances of each case. It was also observed that the discretion exercised by subordinate Courts in allowing or disallowing the condonation of delay is not interfered by the superior Courts. In case reported as Saadullah Khan and 3 others v. Mohabat and 29 others PLD 1975 Pesh. 218 it has been held that if a person purchases land bearing more Khasra numbers than one situate in the same Khata, a pre‑emptor to the said sale can get the decree for such Khasra number as are contiguous to his land, that is to say the vendee cannot defeat a claim of the pre‑emptor to the land which is contiguous to his land on the ground that he is to remain co‑sharer in Khata after decree. In case reported as Fazal Dad v. Mst. Sakina Bibi and another 1997 MLD 2861 the facts were that law regarding the limitation was amended on 29‑6‑1992, when the suit for pre‑emption was already pending. The question which needed resolution was as to what would be the effect of amendment of limitation during the pendency of the suit.. The authority is irrelevant because in the case in hand the suit was instituted in the year 1994 whereas the amendment regarding the period of limitation was introduced in the year 1992. It is evident from the case‑law cited by the respondent that most of the authorities cited by him have no bearing to the facts of the case in hand. The only authority which relates with the condonation of delay recites the principle that each case of the condonation of delay is to be decided in view of its own peculiar circumstances. It has also been observed in the said authority that discretion exercised for condoning or refusing delay is not usually interfered with by the superior Courts.

6. As has already been pointed out that the suit relating to the said appeal was dismissed by the trial Court as being time‑barred and the appeal filed to the District Judge was also dismissed. However, the High Court set aside the findings of the dismissal of the suit observing that the evidence may be recorded in the same and decisions may be announced simultaneously postponed in both the pre‑emption cases, i.e. one which pertained to land measuring one Kanal, four Marlas and one Sarsai and the other relating to suit‑land measuring. 12 Marlas which was transferred vide sale‑deed dated 12‑2‑1994. It may be observed here that the High Court has not taken note of the fact that the question of taking evidence in this suit was agitated previously by way of revision petition to the High Court which was dismissed by the High Court, vide its order, dated 2‑10‑1995, observing that as issues Nos. 1 and 2 which pertained to the question of limitation and cause of action are of legal nature, no evidence was necessary before deciding the same. This order of the High Court was not challenged and, thus, the same had attained finality. Therefore, the High Court was not legally justified to remand the said suit with the direction that the evidence should be recorded in the same and the other pre‑emption case pertaining to sale‑deed dated 16‑12‑1993 must be kept pending and both suits should be disposed of simultaneously. The question falls for determination as to whether the dismissal of the pre‑emption suit filed by Ch. Yaqoob was legally justified. It may be stated that after the amendment in the law, the limitation for filing the cult of pre‑emption is four months from the date of the registration of the sale‑deed whereas the suit in the present case was filed on 4‑12‑1994, i.e. after about ten months of the registration of the sale‑deed. The application for condonation of delay in filing the suit for pre‑emption was made on 9‑4‑1995, about five months after the institution of the suit. No explanation for the operation of the limitation has been claimed in the pre‑emption suit itself: the application for the condonation was made on 9‑4‑1995, at a belated stage. It has been averred in the said application that the respondent, herein, was not aware of the date of execution and, the registration of the sale‑deed and, thus, he sought condonation of delay. The plaintiff filed the suit for pre‑emption on 4‑12‑1994, when he was aware of the fact that the sale‑deed pertaining to 12 Marlas of land was registered on 17‑2‑1994 had been executed. Thus, there is no explanation as to why the respondent kept mum for seeking the condonation of delay till 9‑4‑1995, i.e., for about five months after the institution of the suit. Even otherwise, the discretion with regard to the condonation of delay or refusing the same by the Courts below is hardly interfered with by this Court. Therefore, we are of the view that the trial Court rightly dismissed the suit of pre‑emption regarding 12 Marlas of land as being time‑barred. In these circumstances, the order of the High Court remanding the suit for recording evidence is not tenable and is hereby set aside. Consequently, Appeal No.3, entitled Muhammad Maliki v. Ch. Yaqoob Javed regarding the suit‑land measuring 12 Marlas is accepted and the pre‑emption suit filed by Ch. Yaqoob plaintiff‑respondent, is dismissed.

7. Now coming to the question of Appeals Nos.4 and 5 of 1999 entitled above, it may be observed that after the dismissal of pre‑emption suit filed by Ch. Yaqoob Javed against the sale‑deed dated 17‑2‑1994, Ch. Yaqoob Javed the pre‑emptor appellant, hurl no prior right of purchase against Muhammad Malik regarding the sale‑deed dated 16‑12‑1993, because he has improved the status by purchasing the land measuring 12 Marlas vide sale‑deed dated 17‑2‑1994. It is well‑settled principle of law that a vendee can improve his status during the pendency of the suit; the right of prior purchase should be existing on three dates, namely, the date of execution of sale‑deed, the date of institution of the suit and the date of pre‑emption decree in favour of the pre‑emptor. In the instant case as a result of the sale‑deed obtained by Muhammad Malik on 17‑2‑1994, he has also become co‑sharer in the suit‑land. Therefore, the suit of pre‑emption filed by Ch. Yaqoob Javed against sale‑deed dated 16‑12‑1993 on the basis of being co‑sharer in the suit land cannot succeed for the simple reason Muhammad Malik, vendee, had also become co‑sharer after sale‑deed dated 17‑2‑1994 in his favour. It is well‑settled principle of law that a person who becomes co sharer by purchasing land out of one of survey numbers in Khewat, he would be deemed co‑sharer in whole of the survey number comprised in; a Khewat; Thus, the main park on which the case of Ch. Yaqoob Javed, respondent against sale‑deed dated 16‑12‑1993 rested has come to an end. Thus, the suit of pre‑emption filed by Ch. Yaqoob Javed against the sale‑deed, dated 16‑12‑1993 pertaining to land measuring I Kanal, 4 Marlas and 1 Sarsai also fails arid is hereby dismissed. The amending Act of 1989 whereby section 20‑A was introduced does not help Muhammad Yaqoob, because it has not been given retrospective effect. In the light of what has been stated above, Appeal No.4 of 1999 entitled above filed by Muhammad Malik succeeds and Appeal No.5 of 1999 filed by Ch. Yaqoob Javed against Muhammad Malik is hereby dismissed. The nutshell of the above discussion is that both the pre‑emption suits filed by Ch. Yaqoob Javed against sale‑deed dated 17‑2‑1994 pertaining to the land measuring 12 Marlas, and the suit filed against sale‑deed dated 16‑12‑1993 pertaining to land measuring 1 Kanal, 4 Marlas and 1 Sarsai stand dismissed. The impugned judgment and decree passed by the High Court are hereby set aside. H.B.T./11/SC(AJ&K) Order accordingly.