1994 PLP 1451 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑This appeal by leave arises in the circumstances that respondents purchased agricultural land in Khatas Nos.24 and 25 of Mauza Azim Shah, Tehsil Khanpur, District Rahimyar Khan measuring 104 Kanals 4 Marlas vide Mutation No. 325 attested on 9‑2‑1969. The appellant filed a suit to pre‑empt land measuring 21 Kanals 14 Marlas of Khatta No.25 on the ground that he was a co‑sharer therein and had thus superior right of pre‑emption as against the vendees. he did not pre‑empt land of Khata No. 24 saying that the vendees had equal right being owner in the estate. On the basis of the pleadings of the parties, the following relevant issues were framed: "(1) Whether the transfer of land to the plaintiff in Khata No.25 is hit by Section 54 of the Transfer of Property Act, if so, its effect? OPP (3A) Whether the plaintiff has got a superior right of pre‑emption as against the vendee/defendant? OPP.

4. Whether the suit is bad for partial pre‑emption? Issue No.4 was not pressed by the defendant vendees, so decided against them. Plaintiff relied on a registered sale‑deed Exh.Pl but it was found not related to the plaintiff. However, in view of Mutations Nos.200 and 201 Exhs.DS and D6 of oral sale in Khata No.25 in favour of the plaintiff it was held that through the sales being oral in contravention of section 54 of the Transfer of Property Act did not confer title on the plaintiff yet he had become an owner by adverse possession after the expiry of the prescriptive period, therefore he had the right to pre empt the sale in question. Issues Nos.l and 3A were, therefore, decided in favour of the plaintiff‑appellant and. his suit decreed vide judgment and decree dated 4‑12‑1979. Respondent‑vendees filed an appeal which was dismissed by the Additional District Judge, Rahimyar Khan vide judgment and decree dated 7‑10‑1982. However, they succeeded on a Civil Revision No. 194‑D/81/BWP when it was held that the oral sale vide Mutation No.200 entered on 27‑3‑1957 and attested on 2‑4‑1957 Exh. D5 and the other oral sale Mutation No.201 attested on 6‑12‑1957 Exh. D6 were not effective because the period of 12 years for adverse possession was into complete when the sale mutation which was pre‑empted was attested on 6‑2‑1969. The revision was, therefore, allowed, the judgments and decree of the Court below set aside and the suit of the plaintiff‑appellant dismissed. This is vide judgment and decree dated 15‑2‑1984.

2. At. the leave stage it was argued on behalf of the appellant that "the A High Court has misread the registered sale‑deed dated 24‑1‑1961 Exh. PI by which he had become an owner in the estate". Leave was granted to examine the point.

3. Today at the hearing it transpires that not only there is a finding by the trial Court that the registered sale‑deed dated 24‑1‑1961 Exh. P1 did not relate to the appellant but also it does not concern the Khata in question i.e. No. 25. 8 At best it would make the appellant an owner in the estate as contended at the leave stage but that does not help him because on this basis he did not seek the right to pre‑empt as the respondent‑vendees were also owners in the estate as stated in para. 2 of his plaint. Nor can he succeed on that basis. Therefore, the question on which the leave was granted to the appellant is of no avail to him. Hence, the appeal must fail.

4. A word may be said about acquiring a right to pre‑empt on the basis of adverse possession and how it was dealt with by the Courts below. Adverse possession cannot be used as a sword. This is well‑established law. A person in adverse possession may use it as a shield against the rightful owner if the latter was out of possession for the requisite period of twelve years and the possession of the former had been open, hostile and adverse to the knowledge of the rightful owner. Therefore, on the basis of adverse possession a right to claim preferential right to pre‑empt cannot be asserted against a third party. Consequently the suit of the plaintiff‑appellant on the basis of adverse possession was not maintainable. In the case in hand, the appellant claimed to have preferential right of purchase i.e. to pre‑empt the sale in question on the premise that though under the oral sales vide Exhs.D5 and 6 title did not pass in his favour on account of section 54 of the Transfer of Property Act yet as he had remained in possession of the land under the sales for requisite period of 12 years he had acquired title by adverse possession. Not only the learned High Court found that from the sales twelve years had not gone by when the sale in question was sought to be pre‑empted and this fact is not disputed, therefore, the claim falls through, but also it may be noticed that the appellant had come in possession under the oral sales. His possession was neither adverse nor hostile to the rightful owner. Rather, it was permissive. Therefore, no building could be raised on the basis of such possession that it was adverse.

5. For all the reasons given above there is no force in this appeal. It is, therefore, dismissed but in the circumstances parties are left to bear their own costs. AA./M‑1991/S Appeal dismissed.