2010 PLP 416 (SCMR)

MIAN SHAKIRULLAH JAN, J.

The appellant (the defendant/vendee) is seeking reversal of a decree in a pre-emption suit granted in favour of the plaintiff/respondent by all the three Courts below, through the instant appeal with leave of the Court. The relevant portion of the leave granting order reads as follow:

"(10) Having heard learned counsel for the parties at length, we grant leave to appeal to re-examine the question of limitation in a suit for pre-emption in the backdrop of a transaction of sale effected through mutation and also to consider the question of applicability of sections 54 and 118 of the Transfer of Property Act in cases involving questions of ownership through a mutation in the light of relevant provisions of law and the cases decided earlier."

2. As a contest of the pleadings of the parties, five issues were framed out of which the two i.e., the first and last one, were not pressed at any stage. However, Issue No.2 relating to limitation, Issue No.3 with regard to plaintiff's/respondent's right of pre-emption as being not superior to defendant/vendee and Issue No.4 relates to the plaintiff's waiver of his right of pre-emption were hotly contested before the trial Court and the High Court, however, before the appellate Court, the Additional Sessions Judge, only one issue i.e., Issue No.4, was agitated and the other two issues were also not pressed. However, the issues so taken before the Court were decided against the appellant.

3. The learned counsel for the appellant though has advanced the arguments on the question of waiver and limitation but half-heartedly without cogent reasons, however, they mainly argued the case on the question that the appellant is having an equal right of pre-emption or in other words the respondent has no superior right of pre-emption as he (appellant) being an owner/co-sharer in the property on the basis of purchase of the property through mutation prior to the attestation of the mutation, which is subject-matter of the present pre-emption suit, and it was contended that the appellant ought not to have been non-suited merely on the ground that the transaction of sale has taken place through a mutation and not complying with the requirements of section 54 of Transfer of Property Act. It was also contended that when for the purpose of pre-emption the sale through mutation, which is the subject matter of the pre-emption suit, is considered to be a transfer/sale and is held to be pre-emptable then on the same analogy in a pre-emption suit it may be open to both the parties i.e., the preemptor and the vendee-defendant to assert their claim or defending the case on the ground of co- sharership etc. accrued to them on the basis of a sale evidence by mutation and not satisfying the requirement of section 54 of the Act ibid and in this respect reliance was placed on the judgment of this Court in the case of Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 whereby the sale through mutation, subject-matter of the pre-emption suit, was held to be valid for the purpose of pre-emption and a pre-emption suit was held to be maintainable qua such transaction. They further contended that the judgments of this Court in the cases of Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988 and Muhammad Fazal v. Kaura through L.Rs. 1999 SCMR 1870 are required to be re-visited.

4. The learned counsel for the respondent vehemently opposed the contentions of' the learned counsel for the appellant on all the three issues. On the question of requirements of section 54 of the Act ibid he has referred to the judgments of this Court in the cases of Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988', Muhammad Fazal v. Kaura through L.Rs. 1999 SCMR 1870 (already referred to by the learned counsel for the appellant with a request to re-visit them), Muhammad Bakhsh v. Zia Ullah and others PLD 1971 Baghdad-ul-Jadid 42 and Pir Bakhsh v. Budhoo PLD 1978 Baghdad-ul-Jadid 86 by contending that the law has already been settled by this Court and there is no need to re-visit the same and he submitted that the judgments of the Courts below are in line with the judgments referred to by him and need no interference.

5. Undisputedly section 54 of the Act ibid was applicable in the area at the relevant time and the question for determination is as to whether the appellant could assert successfully to have an equal right with that of the respondent on account of being co-sharer on the basis of purchase of property, prior to the transaction, subject-matter of the pre-emption suit, by virtue of sale through mutation lacking the requirements of section 54 of the Act ibid. The judgment of this Court in Abdul Karim's case, relied upon by the learned counsel for the appellant, has distinguished the sale through, mutation, subject-matter of pre-emption suit, and the sale/purchase of the property on the basis of which a superior right of pre-emption is claimed. On page 414 in the first para while making a reference to other reported judgments it was noted as under:

" .the Legislature when enacting section 54 of the Transfer of Property Act could not have intended to add this provision of law to other laws dealing with the sale of property and in force in the same areas. No doubt, a sale made in violation of the provisions of section 54 of the Transfer of Property Act would not be a valid sale, but if the law of pre-emption permits that a sale, which is otherwise complete, can be pre-empted and if the pre-emptor is prepared to take over the defective title of the vendee, he cannot be prevented from doing so, simply because the vendor and the vendee have colluded with each other to deprive him of his rights. " On page 417 it was observed as follows:-- " We are, however, unable to accept this contention, because if the right of pre-emption is a right of substitution then certainly the person seeking to pre-empt can be put into the shoes of the stranger purchaser and exercise all the latter's rights including those to which he became entitled under section 53-A of the Transfer of Property Act. In exercise of this right he too could defeat the suit of either the vendor or any other person claiming through the vendor to oust him from possession even if he had entered into possession on the basis of an unregistered document of conveyance. He would be in just as good or as bad a position as the vendee himself. We see no reason, therefore, why the transfer in such circumstances should not be pre-emptible when to hold otherwise would amount to opening the door for fraudulent persons to defeat the law of pre-emption, as, indeed was the endeavor of the parties in the case reported in I L R 16 All. 344." And ultimately the findings of the High Court were maintained whereby it (the High Court) had set aside the judgment of the trial Court, which (judgment of the trial Court) had held that sale through an unregistered document not in accordance with the provisions of section 54 of the Act (ibid) was unpre-emptable. In Muhammad Bakhsh's case 1983 SCMR 988 while dealing with the question of the requirements of section 54 of the Act ibid, in pre-emption suits to examine whether the purchase on the basis of sale admitted but otherwise in violation of section 54 of the Act ibid enforce their right of pre-emption against the respondents/vendees it was held, on page 992 in the last para. as follows: "The entries of the Revenue Record like the Jambandi do not provide the foundation of title in property but are mere items of evidence to prove titled Wali Muhammad v. Muhammad Bux (3). They have a presumption of correctness which is rebuttable. The moment during scrutiny one reaches the transaction on the basis of which a change in the Revenue Record has been brought about then it is not the record but the transaction itself, not the secondary source but the primary one, which becomes the foundation of all claims and rights. It is clear that in the two cases before us the justification for the entries in the Revenue Record showing the plaintiffs as co-sharers or owners was an oral transaction of purchase given effect to by a mutation in contravention of section 54 of the Transfer of Property Act. Such a transaction must satisfy the legal requirements and it is only when its conformity to law is established the title to property is created, legal rights and liabilities come into existence. If the very substratum of the entries of the Revenue Record is found to be defective, deficient, or wanting the entries of the Revenue Record cannot create title in property or give rise to rights and liabilities as is claimed by the appellants. They are of no avail to the appellants." Abdul Karim's case heavily relied upon by the learned counsel for the appellant was also distinguished, on page 993 in the last para. of the judgment, as follows: "The decision of this Court in Abdul Karim's case may be topical but it does not advance the case of the appellants. In that case the meaning and scope of term sale as defined in section 3(5) of Pre-emption Act was examined with a view to identify the sales which could be preempted. Its meaning and scope was held to be winder than of sales defined and dealt with under section 54 of the Transfer of Property Act. Hence even those sales which did not satisfy the requirements of section 54 of the Transfer of Property Act could be preempted. Without involving definition, scope or meaning of any such term the right to preempt a sale cannot be given an' equally extended meaning to include within its orbit all inchoate, incomplete and imperfect sales as good sales for the purposes of acquiring an assertable or enforceable right of pre-emption."

6. We do not agree with the contentions of the learned counsel for the appellant to re-visit the judgments of this Court referred to above as a correct proposition of law has been laid down and we see no scope to re-visit them or have a view different from the one already taken by this Court. The other two pleas with regard to the waiver and limitation the Courts below have decided the same against the appellant and no question, of law regarding the afore-said two issues were agitated except on the questions of facts as to the proof or disproof and for which the Courts below have arrived at a correct conclusion and we see no reason to differ with them as no plausible or grounds were advanced in this respect. Consequently, we see no force in this appeal and the same is dismissed with no order as to costs. M.H./A-73/SC Appeal dismissed.