1987 PLP 2134 (CLC)

(8) Whether a sum of Rs.6,16,000 has been fixed in good faith as sale consideration of the suit land? (9) Market value? (9/A) Whether the suit of the rival pre‑emptor Ghafoor have been filed by incompetent person. (10)????? Relief.

5. Evidence of the parties consists of the statements of Zafar Ali Khan Patwari Halqa (P.W.1), Sardar Muhammad Ishaq Khan Kundi (Plaintiff in suit No.686/1 of 1982) as P.W.2 on behalf of the plaintiff, Alamgir Khan A.D.K. as D.W.1, Muhammad Nawaz Khan as D.W.2 and Muhammad Rafique (general attorney of Abdul Ghafoor the rival pre‑emptor) on behalf of the rival pre‑emptor. Muhammad Din Khan, special attorney of defendants 11 to 14 and 19 to 24 appeared as D.W.4. Haqnawaz attorney for defendants 6 to 9 is examined as D.W.5, Qadir Khan Shabir ldhan (attorney of defendants 2, 3, 4 and 15 to 17 are examined for the subsequent transferees.

6. The learned trial Judge on consideration of the evidence led before him discussed the evidence of the parties under issues Nos.1 and 2 and held that the plaintiffs have got superior right of pre‑emption, as against the vendees, the rival pre‑emptors and transferees from the original vendee, they being co‑sharers in the suit land. It was further held that they have also their land contiguous to the suit khasra numbers lying in a block. It was observed that in case plaintiffs are not held to be co‑sharers in the suit land and entitled to the decree on that ground then they would be entitled to the decree on contiguity to the extent of 3/4 share while the rival pre‑emptor who has his land contiguous to the suit land would be entitled to the remaining 1/4 share on payment of proportionate sale consideration. The sum of Rs. 6,16,000 was held to be the market value of the suit land. The claim of the defendant for Rs.12,000 as expenses incurred in the completion of sale was not accepted. Rest of the issues were decided against the defendants and in favour of the plaintiffs. Objection to the maintainability of the rival pre‑emptor's suit filed by his general attorney did not prevail with the trial Court. In this view of the matter, plaintiffs' Suit No. 686/1 was decreed in their favour on 27‑10‑1984 against the defendant on payment of Rs.6,16,000/‑ while suit of the rival pre‑emptor was dismissed.

7. Aggrieved by the judgment of the trial Judge, defendant vendees challenged it in appeal No.233/84, the rival pre‑emptors in appeal No.234/84 and the plain tiffs/ decree‑holders preferred cross objections in appeal No.234/1. In their cross objections, the decree ?holders challenged the finding of the trial Court regarding their entitlement on the ground of contiguity regarding khasra No. 209 and claimed that they are even otherwise co‑sharers in it. All these three matters were heard and disposed of by the learned District Judge D.I. Khan by a single judgment in appeal No.233/84 (Shabir Khan. v. Muhammad Ishaq Khan etc.). The learned District Judge in paras 7 to 17 of his judgment has given summary of the evidence produced by the parties relevant for determination of the issues argued before him by the learned counsel for the parties while contentions raised before him are reproduced in 18 to

20. He however, dealt with the points for determination elaborately in para 22 of his judgment in the light of the evidence on the record and the law cited before him. While repelling the arguments of the appellant that sale of land in plaintiffs' favour was in violation of the provision of para 25 of Martial Law Regulation No.115, the learned District Judge found that the plaintiffs decree‑holders became owners in the village by purchase through mutations Nos.86 and 87 attested on 1‑8‑1977. Through the aforementioned mutations plaintiff had purchased the entire holding of the vendor, namely Mst. Noor Jehan Begum. The entries appearing in the relevant column of mutation that the land has been purchased for construction purposes, therefore inconsequential in the context of the objection raised and the above?mentioned provisions would not be attracted to the case. The arguments of the defendant/ vendees that the plain tiffs/ decree‑ holders were no more co‑sharers in the entire suit land after the joint khata was split up into several separate khatas did not prevail with the Court. Similarly, plea of exemption of under Section 5 (c) of the N.‑W.F.P. Pre‑emption Act raised by the subsequent transferees was not accepted for the reason given therein. The subsequent transfer by the vendees within a period of one year was held to be of no effect on the plaintiffs‑superior right of pre‑emption as these transfers were not made in recognition of the superior right of pre‑emption of the subsequent transferees. The learned District Judge also did not agree with the learned counsel for the defendants (appellants) that additional evidence was required for arriving at a just decision and rejected their application made under Order 41, Rule 27, C.P.C. In consequence of these findings, both the appeals as well as the cross objections were dismissed on 5‑9‑1985. Civil Revision No. 127 of 1985 is by Ghafoor Khan, the rival pre‑emptor, Civil Revision No.103 of 1985 by Shabir Khan and others, the defendants/ vendees and Civil Revision N0.112 of 1985 by Muhammad Ishaq Khan Kundi and others, the plain tiffs/ decree‑holders.

8. Learned counsel for the parties reiterated the same arguments which did not prevail with the two Courts below. The right of pre‑emption of the plaintiffs is disputed on two‑fold grounds, firstly that they having become owner by purchase for construction purposes in the village, their subsequent acquisition of land is void under the provision of pars. 24 (5) of Martial Law Regulation No.115 and secondly that the original khata in which the plaintiffs were co‑sharers was split up in several khatas at the time of preparation of new jamabandi during the pendency of suit, therefore, they did not retain their superior right of pre‑emption during the pendency of the suit and the passing of the decree in their favour. In support of first contention, reference was made to letter No. SR‑1633/67/1537‑IG dated 3‑2‑1986, issued under MLR 64, copy of which is Ex.D.W. 1/2 on the file, the relevant part whereof is reproduced as under:‑ "It has further been brought to the notice of the Commission that some persons after purchasing land for bona fide building purposes were flouting the provisions of paragraph 25 (6) ibid and had started to purchase more land for agricultural purposes the plea that they had become owners of the same village, deh or mauza by the purchase of land for building houses. In order to see against such malpractices, the Chief Land Commissioner is pleased to order that a red entry in the jamabandi be made against a small piece of land acquired for building purposes to the effect he is not owner within the meaning of paragraph 25 (4) of the Land Reforms Regulation. The subordinate revenue staff may please be directed to comply with these instructions strictly (in respect of past as also future cases)."

9. For proper appreciation of the question raised reference is to be made to the evidence of the parties led in this respect. The only evidence relevant in this context in which stress has been laid is the entry appearing in column No.9 of mutations No.86 and 87 copy Ex.D.W. 1/3 that the land in question was being purchased for construction purposes. However, there is no such reference in the order of the Revenue Officer and no other evidence whatsoever is on the file that the transfer in plaintiffs decree‑holders' favour was in any way in violation of the provision of M.L.R. No.115. It is in the statement of P.W.2 that vide mutation No.86 and 87 Mst. Noor Jehan Begum transferred her entire holding in the village in favour of the plaintiffs/decree‑holders. This transfer was, therefore, in conformity with sub‑para 24 (4) of Martial Law Regulation No.115 and no objection could be raised to the validity of subsequent sale made in favour of the plaintiffs/decree‑holders of land in the suit khata through mutation No.133, on which plaintiffs have based their superior right of pre‑emption. Neither this part of the statement of P.W.2 was subjected to cross examination, nor any question was put to the Patwari in support of the plea by the rival pre‑emptor and the defendants though the patwari was examined and re‑examined several times by the parties. At the time of attestation of mutation No.153 no objection was raised that the transaction was in violation of any of the provisions of M.L.R. No.155. In the absence of any legal bar, land purchased for construction purposes itself would not disentitle such vendee from acquiring more land or from making it basis for enforcing his superior right of pre‑emption. For the reason stated above, the arguments of the learned counsel for the defendants vendees are misconceived and the Courts below were perfectly justified in holding the plaintiffs/ decree‑holders rightful owners through mutation No.133 of the Land mentioned therein.

10. As far as the superior right of pre‑emption inter se the rival pre‑emptors is concerned, it was vehemently argued by the learned counsel that though plaintiff/decree‑holders were recorded co‑sharers in the suit khata No.39 at the time of sale and according to the Jamabandi for the year 1977‑78 but subsequently at the time of preparation of new Jamabandi of the year 1981‑82 it was split up into five khatas Nos. 57, 58, 59, 60 and

61. Only in khata No.57 plaintiffs are recorded co‑sharers while in rest of the khatas, plaintiffs are no more recorded as co‑sharers. The contention of the learned counsel is well founded and is supported by the evidence on the record. It is not disputed that in order to succeed, plaintiffs must have subsisting right of pre‑emption at three stages i.e. at the time of sale, institution of the suit and passing of the decree. The impugned sales through mutations referred to above were made when the entire suit land all the khasra numbers, comprised in khata No.39 of the Jamabandi of the year 1977‑79 and the new Jamabandi was not yet prepared. Even in their respective plaints both the pre‑emptors have referred to khata No.39 to be the subject‑matter of the suit. Plaintiffs have become co‑sharer in the khata by purchase of 1/4 share out of khasra No.209 in the said khata through mutation No.133 attested on 26‑6‑1979. Exh.P.W. 2/3 is the certified copy of mutation No.133 in which the sale transaction has been given effect to in the column of ownership. However, when new Jamabandi was prepared of the yeari 1981‑82 khata No.39 was split up and various khasra numbers were allotted new khata numbers. Khasra No.209 in which the plaintiffs are co‑sharers was allotted khata No.57 in the said jamabandi, copy of which is Ex.PX on the file. Rest of the khasra numbers previously comprised in khata No.39 are shown in different kharas in which the plaintiffs do not figure either in the column of ownership or in the column of cultivation. This factual aspect of the case, which is borne out by the revenue record is not denied by the learned counsel for the decree‑holders. The learned counsel for the decree‑holders, however argued that at the time of sale in question khasra No. 209 in which the plaintiffs/decree‑holders are co‑sharers, formed part of Khata No.39 and that the subsequent change in the revenue record brought out by preparation of new Jamabandi during the pendency of the suit resulting in the splitting up of the khata No.39 into several different khatas would not affect their superior right of pre‑emption as held by the courts below. In support of his argumunl the learned counsel placed reliance on Bhubindra Narayan Bhattacharjya v. Mst. Tarupriya Debya and others (A I R 1950 Assam 119) and Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (P.L. D. 1959 Supreme Court (Pak) page 9). 1 find do force in the arguments as cited judgments are mainly based on the provision of Section 52 of the Transfer of Property Act,1981 which reads as under:‑ "Transfer of property suit relating thereto.‑‑During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of any suit or proceeding which is not collusive and in which any right of immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."

11. From bare reading of the section, it appears that emphasis has been made on "any party to the suit or proceeding" and the learned counsel has failed to point out that the preparation of new Jamabandi was the act of a party to the suit which affected his rights. The former judgment cited by the learned counsel is not helpful to the plaintiffs/decree‑holders as in that case, the plaintiff was a party to the partition proceedings carried out during the pendency of the suit and it was in that context that it was observed:‑ "Section 52 prevents not merely the transfer of immovable property when any right to it is directly and specifically in question but it also prevents dealing with the property otherwise. Partitioning the property is containing dealing with it. A partition may or may not be regarded as a transfer. It does, however, alter the mode of enjoyment of the property and can produce a result very similar to transfer in certain cases. In any case, the language of the section is wide enough to cover a partition."

12. In the instant case, it is not the case of the decree‑holders that the preparation of jamabandi and splitting up of the original khata was the act of a party to the suit. In fact periodical record of Jamabandi is prepared after every four years under subsection (1) of Section 41 of the West Pakistan Land Revenue Act, 1967 so that all mutations upon which final orders have been passed till the relevant date are incorporated in it. The splitting up of khata No.39 into five khatas cannot, therefore, be challenged as an act of a party rather to attract Section 52 of Transfer of Property Act rather it was done in pursuance of and in compliance of the aforementioned provision of Land Revenue Act, The plaintiffs/decree‑holders having purchased a specific share in column of ownership, exclusively in khasra No.209, at the time of preparation of the new Jamabandi, this khasra number could not be retained with other khasra numbers in a joint khata.

13. Similarly, in the later cited judgment, transfer of that specific portion of joint land was made which was in the exclusive hissadari possession of the vendors in column of cultivation, the ownership rights remained intact. It was in that context their Lordships held:‑ "If the vendor was in exclusive possession of certain portion of the joint land and transfer its possession to his vendee, so long as there was no partition between the co‑sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, tax the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property." According to the law laid down a vendee of specific Khasra number acquired from a co‑sharer in an undivided khata does become a co‑sharer in the entire khata, but facts of the present case are distinguishable. In that case it was hissadari sale of possessory rights and not sale of specific share in column of ownership, the former is always subject to the vendors' entitlement in the. khata and at the same time it does not interfere with the integrity of the khata. In Hamzullah v. Umar Ali and another P L D 1984 Peshawar 20, referred to by the learned counsel, the question for determination was quite different one. In that case the principle of adjustment of land of a vendee/co‑sharer affected by partition of a joint holding was involved. Here in this case the question of adjustment is neither raised nor it requires determination, as sale has been made of specific share in the column of ownership out of a single khasra number.

14. Right of pre‑emption arises out of sale of Agricultural land of village immovable property or urban immovable property in preference to other and vests firstly in the co‑sharers in such land or property under section 4 read with section 12 of the N.‑W.F.P. Pre‑emption Act, 1950. Both the Courts below did not correctly advert to the relevant controversy and failed to determine the effect of preparation of the new Jamabandi and splitting up of the original khata on the plaintiffs' right of pre‑emption based on cp‑sharership. Apparently plaintiffs are not recorded co‑sharers in the suit land excepting Khasra No.209 bearing khata No.57, at the time of passing of the decree. This fact is established from the copies of the jamabandi placed on file and also from the statement of patwari Halqa recorded in Court. Both the Courts below, therefore, in holding that the plaintiffs are co‑sharers in the entire suit land have misread the evidence.

15. Similarly, the observation of the Courts below that in case the plaintiffs are not held to be co‑sharers in the entire suit land, then they would be entitled to 3/4 shares of the land in suit including Khasra No.209 is also misconceived and based on misreading of evidence. In fact plaintiffs are recorded co‑sharers in Khasra No.209 bearing Khata No.57 as already observed, while rival pre‑emptors have got no such qualification. The plaintiffs/decree‑holders, therefore, would be entitled to the entire share sold in khasra No.209 in preference to the rival pre‑emptors.

16. Having held that the plaintiff s/decree‑holders' entitlement to the suit land on the ground of qualification of co‑sharership extends only to Khasra No.209 bearing Khata No.57, I have now to deal with the respective rights of the rival pre‑emptors with regard to the remaining suit land. Both the Courts below have held that the suit Khasra numbers are in one block and that the plaintiffs/decree‑holders and the rival pre‑emptors both have their land contiguous to the block, their rights are at par have in the alternative determined their share accordingly. The grievance of the learned counsel for the plaintiffs/decree‑holders, however, is that suit No.940 was incompetent it having been instituted by Muhammad Rafiq in his capacity as general attorney of Abdul Ghafoor rival pre‑emptor. According to the learned counsel, the attorney had no authority to pre‑empt the sale in question on behalf of his principal. Elaborating his arguments the learned counsel referred to the photostat copy of the general power of attorney dated 8‑5‑1982 available on the file in which no such power vested in the attorney. The learned counsel in support of his arguments placed reliance on Gul Taj Begum v. Lai Muhammad P L D 1980 Supreme Court Azad Jammu and Kashmir page 60.

17. In order to appreciate the arguments of the learned counsel, it would be proper and useful to reproduce the relevant portion of the general power of attorney:‑ On the careful reading of the above judgment Gul Taj Begum v. Lal Muhammad with special reference to the contents of the power of attorney reproduced above, the facts of? the present case are quite identical with the facts given therein. In that case similar words used in the Mukhtar Nama were pressed into service to show that the attorney was empowered to file any civil suit including that of pre‑emption. Their Lordships, however, in repelling the arguments observed:‑ "The reading of the document on the whole conveys a clear sense that the general power of attorney (Exhs. D.A.) was executed in respect of immovable property relating to land and built‑up house in Tehsil Mirpur and unrestricted powers were given to Sajawal Khan in respect of this property authorising him to launch all sorts of proceedings including the civil suit relating to this property only. It in no way allows Sajawal Khan to travel beyond it and file pre‑emption suit. The power of attorney is couched in clear terms and admits of no doubt that Sajawal Khan was not authorised to file the pre‑emption suit." Reference was also made to Muhammad Afsar Khan and another v. Khadim Hussain and 3 others P L D 1978 S C (A J & K) 143) and Messrs Eagle Star Insurance Co. Ltd. v. Messrs Usman Sons Ltd. PLD 1969 Kar. 123 ref.

19. In the instant case when an objection was raised at the trial to the competency of the suit, Ghafoor rival pre‑emptor executed; another special power of attorney in favour of Muhammad Rafiq which, too is not helpful to advance the case of the rival pre‑emptor. This power of attorney was executed on 31‑10‑1983 when period of limitation for filing suit of pre‑emption had already expired and valuable rights accrued to the plaintiff s/decree‑holders. The findings of the Courts below, in this respect, which are based on misreading and misinterpretation of the Mukhtar Nama are therefore, liable to be set aside. For the reasons given above and the observation made, all the three revision petitions stand dismissed leaving the parties to bear their own costs. K. B.A. 542/P????????????????????????????????????????????????????????????????????????? Petition dismissed.