1991CLC307 (PLP)

A suit for possession by pre-emption was brought by Subedar Major, r (Retired), Sohbat Khan plaintiff-petitioner herein, against Gulab etc. defendants respondents herein. The suit was decreed by a judgment dated 12-11-1986 of Sahibzada Khurshid Ahmad, Civil Judge 1st Class, Tank Camp D.I. Khan. The appeal filed by the vendees was accepted by Mr. Salim Khan Miankhel, District Judge, D.I.Khan, by his judgment and decree dated 29-9-1987.

2. The plaintiff-petitioner has come up in revision to this Courl

3. The brief facts giving rise to this petition in revision are that Square No.N/3 was originally the property of the Government of N.-W.F.P. Out of it, 100 kanals representing half of the Square was transferred to the petitioner on the basis of Mutation No.267 attested on 13-2-1980. The remaining half of the Square, bearing specified Khasra Nos. was transferred, by Mutation No.271 attested on 1-3-1980, to Mst. Daryai Khanum, widow of (Late) Amir Afzal Khan, Sitara-e-Basalat, a retired Non-Commissioned Officer. On the 7th of March, 1980, Mst. Daryai Khanum, by an agreement, agreed to sell the land aforesaid in favour of the vendees-respondents. The parties to the transaction fixed Rs.1,30,000 as sale consideration. The respondents paid Rs.90,000 as earnest money. The balance of sale consideration viz. Rs.40,000 was to be paid at the time of attestation of mutation. It was further recited in the agreement to sell that the vendor had put the respondents into physical possession of the land on 7-3-1980. Haji Ahmad Nawaz, one of the vendees-respondents, went to Patwari and reported the sale of the disputed land on the basis of agreement to sell dated 7-3-1980 and asserted that they have been put in physical possession thereof. On 30-4-1980, the respondents instituted Suit No.175/1 against the vendor through her general attorney Muhammad Ayub for declaration of their title to and confirmation of their possession over the land in dispute on the strength of the agreement to sell. On 22-6-1980, the learned Senior Civil Judge, D.I.Khan, who was seized of the case, passed "a consent decree for specific performance of the agreement to sell of the land as claimed in the plaint".

3. In pursuance of this decree, Mutation No.295 was entered and attested -on 13-8-1981. Meanwhile, Gulab, one of the vendees-respondents, through Mutation No.336 attested on 24-1-1982, sold 9 kanals and 5 marlas of land to Haq Nawaz, Muhammad Salim, Muhammad Jan and Shah Jehan, respondents.

4. The sale aforesaid was sought to be pre-empted by the petitioner by means of this suit for Rs.5,000 on the plea that he was co-sharer in the Khata, Khewat, Square and Khasra Nos. of which the land formed a part; he owned land lying contiguous to that in dispute and that he was participator in appendages and amenities of the land sold. The petitioner also attacked the sale of 9 kanals and 5 marlas of land by Gulab to Haq Nawaz, Muhammad Salim, Muhammad Jan and Shah Jehan as void and ineffective qua his pre-emptive rights.

5. The respondents in. their written statement while denying the superiority of pre-emptive rights of the petitioner, contested the suit, inter alia, on the plea that the suit was barred by limitation.

6. In this petition, the findings of the learned Appellate Court on the point of limitation and the claim of superiority of pre-emptive rights by the petitioner, have been challenged. 7.The impugned Mutation No.295 was attested on 13-8-1980. The respondents have claimed that they have been put into physical possession of the suit land since the execution of agreement to sell, EX.D.W.1/1 dated 7-3-1980 which fact got further affirmance in the Daily Diary EX.P.W.1/D/1 of Patwari dated 21-3-1980, the statement of the attorney of vendor, copy of the consent decree etc. Ex.D.W.2/32 and entries of Khasra Girdawari, EX.P.W.1/3. It has, therefore, been vehemently argued by the learned counsel for the petitioner that the cause of action had accrued to the petitioner from 13-8-1980 when Mutation No.295 was attested. It was additionally argued that in any case the presumption of truth to all these documents is not attached, particularly to the entries in the Khasra Girdawari. In support of this last contention, the case of Fakhrunissa v. Muhamadullah Khan P L D 1984 Pesh. 94 was cited at the Bar. It was further urged that only two of the respondents have been recorded only in few Khasra Nos. in dispute which would not be of any avail to them.

8. On the other hand, learned counsel for the respondents strenuously argued that although Mutation No.295 was attested on 13-8-1980, but the respondents were actually in physical possession of the suit land since 7-3-1980 when the agreement to sell was executed between the vendor and the respondents which fact stands affirmed in the extract, EX.P.W.1/1 of the Daily Diary dated 21-3-1980 and the statement of the General-Attorney of the vendor-respondent in the consent decree Ex.D.W.2/3. Reference was also made to the entries in Khasra Girdawari EX.P.W.1/3.

9. In case of sale of agricultural land or village immovable property, the cause of action to pre-empt it arises within a year from the date of attestation of mutation or from the date on which the vendee takes under the sale physical possession of any part of such land or property whichever date is earlier. The crucial question is whether the respondents have been able to prove their actual possession of the suit land prior to 13-8-1980 when the Mutation No.295 was attested in their favour. The old view, that transfer of physical possession of the land being pre-empted must be under the sale would only be hit by the bar of limitation and that possession under an agreement to sell would not bar this right, has not been approved by the august Supreme Court in Barkhurdar v. Muhammad Razzaq P L D 1989 SC 749, wherein the following observations are note worthy:- "It is no doubt true that an agreement to sell simpliciter is' not a sale for purposes of pre-emption, but when that very agreement to sell is followed by delivery of physical possession of the land sold, it cannot, by any stretch of imagination, be said that the delivery of possession was not under the sale."

10. The finding of the learned District Judge on this point is that the recital in the agreement to sell, photo copy EX.D.W.1/1 and the receipt, EX.P.W.1/2, towards the delivery of actual and physical possession to the respondents, the statement of General Attorney, namely, Muhammad Ayub, photo copy Ex.D.W.2/3 in Suit No.175/1 between the respondents and the vendor, and the report Roznamcha, EX.DW.I/D.1, would prove that the vendees-respondents have been put in actual possession of the land in month of March, 1980 and the suit brought on 1-9-1982 was barred by limitation.

11. The documents relied upon by the learned counsel for the `respondents when taken together indisputably prove the delivery of possession of the suit land to the respondents much prior to the attestation of mutation on 13-8-1980. The contention that the entries in the Khasra Girdawari showing only two of the answering respondents to be in possession of some of the Khasra numbers in dispute is of no help to them. The physical possession of any part of the suit land by any one or more of the vendees prior to the attestation of mutation- under pre emption would be enough to non-suit the pre-emptor. Reliance, in this context can be placed on: (1) Niaz Ahmad v. Abdur Rehman P L D 1961 (W.P.) BJ 1) and, (2) Muhammad Akbar v. Allah Ditta (P L D 1974 Pesh. 51). It was also argued on behalf of the respondents that the dictum laid down in the case of Mst. Fakhrunissa, referred to by the learned counsel for the petitioner qua the presumption of correctness to the Khasra Girdawari has not been approved by the Supreme Court in Muhammad Aslam v. Khuda Dad 1982 S C M R

511. Reference was particularly made to the following paragraph in the report- "As regards the presumption of correctness attaching to the entries of the Khasra Girdawari no doubt it is not of the same degree and statutory force as exists for the entries of annual Revenue Record under section 44 of the Punjab Land Revenue Act or under section 52 of the West Pakistan Land Revenue Act. The fact, however, remains that if the entries of the Khasra Girdawari are shown to have been made by the officials charged with a duty in the matter, in the ordinary course of their business, a presumption of their correctness and regularity will arise under section 114 of the Evidence Act. It was such a presumption which was recognised in Ghulam Hassan and others v. Sarfraz Khan (P L D 1956 SC 306) limiting to it to the actual date when Girdawari was done."

13. The learned counsel for the respondents placed reliance on: (1) Nawab Din and 2 others v. Hassan Muhammad (Deceased) Represented by Legal Heirs and another (1987 C L C 1656) and (2) Ali Muhammad v. Shera and another (1987 S C M R 207), in support of his contention that specific Khasra numbers have been sold out of Square No.N/3, both to the petitioner and Mst. Daryai Khanum respectively and, therefore, the pre-emptor does not become co-sharer in the Khata. This contention has every force, in that the admitted position is that: the petitioner has not been able to prove on the record that the land which was transferred to him and that in dispute formed part of one Khata. In Mutation No.267, copy Ex.P.W.2/3, the Provincial Government of N.-W.F.P. is shown to have transferred 100 Kanals of land out of Square No.N/3, measuring in all 152 kanals, whereas Mst. Daryai Khanum vendor, from whom the respondents had purchased land, was transferred specific Khasra numbers out of Square No.N/3. Consequently, on the authority of Ali Muhammad v. Shera and another (1987 SCMR 207) cited above. the petitioner cannot be held to be a co-sharer in the suit land. In so far as the claim of contiguity is concerned, it is negatived by the evidence of Sardar Khan Patwari, P. W.

5. The claim of the vendor that he was participator in the amenities and appendages of the suit land, is also far from proved.

14. As stated earlier, the leaned Appellate Court had given findings of fact that the respondents had been able to prove their actual and physical possession over the suit Land prior to the attestation of mutation under the agreement to sell. These findings of fact based on the correct appreciation of evidence, as they are, call for no interference m exercise of revisional powers by this Court. Additionally the two Courts below have also erred in holding the petitioner to be a co-sharer in the disputed land.

15. In view of the aforediscussed reasons, this petition has no merit and is I accordingly dismissed with costs. AA.1136/P Revision dismissed.