2008 PLP 128 (CLC)

MAULVI ANWARUL HAQ, J.

For purposes of this order, reference to pleaded facts in detail would not be necessary. Suffice It to say that on 30-3-2002 the -petitioner filed a suit for possession by pre-emption of the suit-land purchased by the respondent vide Mutation No.1124 attested on 30-11-2001. He claimed superior right of pre-emption on the basis of being Shafi Sharik, Khalit and Jar. The suit was contested. On 17-10-2005 an application was filed by the respondent whereby it was reported to the Court that the petitioner has transferred his entire land in 'favour of his daughter vide gift Mutation No.1366 attested on 26-7-2004. He filed a reply stating that he had not transferred his entire land rather some land was transferred but the respondent managed to get entered in the mutation his entire land. In the same breath, it was stated that the land has been re-transferred to him vide Mutation No.1497. The learned trial Court dismissed the suit on 27-3-2006. A learned Additional District Judge, Sialkot, dismissed the first appeal .of the petitioner vide judgment and decree, dated 9-6-2007.

2. Learned, counsel contends that a complete gift was never made. His further contention is that the land transferred constituted undivided share of a joint holding and the gift was void.

3. I have gone through the copies of the records. I have already stated above the contents of the said application and the reply filed by the petitioner. Copy of Mutation No.1366 is Annexure "F". It records a gift of the entire holding of the petitioner in favour of his daughter, namely; Sabreena Ayesha. It was entered on 5-7-2004 and attested on 26-7-2004. Copy of Mutation No.1497 is Annexure "E". It was entered on 18-10-2005 and attested on 29-11-2005 and it records a gift by the said daughter of the petitioner in his favour of the same land. Examining the said documents in the light of the said application and the reply, I have no manner of doubt in my mind that the entire land was transferred by the petitioner to his daughter, and after about a year the same was gifted back by the daughter to the father.

4. Coming to the said contentions of the learned counsel, so far as the said first contention is concerned, no such plea was taken either in the learned trial Court or the First Appellate Court. So far as the said allegation as to the matters being manoeuvred by the respondent are concerned, the same is wholly improbable and has been rightly rejected by the learned Courts below. The doctrine of Mushaa being relied upon by the learned counsel is not applicable to the present case. In the first instance, it is a gift by a father to his daughter and, in the second, the requirement of law is delivery of such possession as the property admits. The moment the petitioner divested himself of all his interest in the said land, the same vested in the donee who shall be deemed to have taken over the joint possession.

5. Needless to state that the well-founded rule laid down by the superior judiciary of the country including the Honourable Supreme Court of Pakistan that a pre-emptor is required to be equipped with the superior right of pre-emption right from the date of sale upto the date of decree has now received statutory recognition in the form of section 17 of the Punjab Pre-emption Act, 1991. Consequently, because of the said alienation, his right stood abated. The civil revision is dismissed in limine. H.B.T./M-573/L Revision dismissed.