P L D 1962 (W (PLP)

MASUD AHMAD, J.‑The facts, out of which this second appeal bas arisen, are somewhat complicated, and, briefly stated, are as follows :‑ Muhammad Ramzan and Allah Bachaya respondents filed a suit in the Court of the Sub‑Judge at Ahmadpur East, for recovery of possession of 89 kanals of land, being 254/408th share out of 142 kanals 14 marlas situated in village Hamidpur Kalan, Tehsil Ahmadpur East, against Gullan Khan appellant and two other persons, Nawab and Faiz Muhammad. Their case was that Faiz Muhammad, who owned this land, had sold it, in consideration of a sum of Rs. 2,500, to Gullan Khan and Nawab, and with a view to defeat the claim of the pre‑emptors, the sale price was wrongly shown to be Rs. 4,

400. The respondents alleged that they were owners of land in this village, while the two vendees were not and, hence, they had a right to pre‑empt the sale and prayed that a decree be passed in their favour, on payment of Rs. 2,

500. The suit was contested by both the vendees, Gullan Khan and Nawab, who, in their written statement, filed on the 1st March 1956, while admitting that the land in dispute had been sold to them, pleaded that the sale not having been effected by means of a registered document, the same was void, in view of the fact that the value of the property involved being more than Rs. 100 the sale bad to be effected by means of a registered deed and, hence, the respondents could not pre‑empt the sale. They further pleaded that the whole of the sale price, namely, Rs. 4,400, was duly paid, that the suit was barred by time, that the pre‑emptors were estopped from suing, on account of their acts and conduct, and that the plaint had not been correctly valued for purposes of Court fee and jurisdiction, nor did the trial Court have jurisdiction to try this suit. Lastly, they pleaded that one of them, namely, Nawab, had transferred his rights in favour of the other vendee, namely, Gullan Khan, and therefore, Nawab was not a necessary party. The trial Court framed the following issues :‑ (1) Has proper Court fee not been paid ? (2) Did the plaintiffs waive their right of pre‑emption and are now estopped from suing ? (3) Is the suit within time ? (4) Has the suit been filed for the benefit of others ? (5) Is the transaction in dispute, not a sale and is it legally not pre‑emptible ? (6) Has Nawab sold his share to Gullan Khan ? (7) Have the plaintiffs a superior right of pre‑emption ? (8) Was a sum of Rs. 4,400 fixed in good faith or paid ? (9) What is the market value of the property in dispute ?

2. No issue was framed by the Court regarding the objection that the valuation of the suit for purposes of jurisdiction was not correct.

3. After recording evidence of the parties, the Court came to the conclusion that the plaint had not been correctly valued, for purposes of Court‑fee, and that the respondents were estopped from suing. The first two issues were, therefore, decided against the respondents and, although the findings on the remaining issues were 1n their favour, the suit was dismissed. The respondents filed an appeal in the Court of the District Judge, Rahimyarkhan, and the appellate Court by means of its judgment, dated the 19th March 1957, remanded the case, for re‑decision of issues Nos. 1 and 2 only. The Court also' observed that as the respondents had conceded that the whole of the sale price had been duly paid, issues Nos. 8 and 9 had become redundant. No finding was given by the Court on the remaining issues, which had been decided in favour of the respondents. After the remand, the trial Court, which on both the occasions was being presided over by a Sub‑Judge having second class powers, decided the first two issues in favour of the respondents and, without giving any determination on the remaining issues, decreed their suit. The appellant challenged the judgment and decree of the trial Court by filing an appeal in the Court of the District Judge, Rahimyarkhan, and that appeal having been dismissed, summarily, on the 3rd December 1958, he has now come up to this Court, in second appeal, and prays that the judgments and decrees of the Courts below be set aside and the respondents' suit be dismissed.

4. As the learned counsel for the appellant challenged the findings of the trial Court on Issues Nos. 1, 3 and 5, only it would not be necessary to discuss the remaining issues. The learned counsel also raised the question of jurisdiction of the trial Court to try the suit and, although this matter was not put to issue, it would be necessary for us to deal with it.

5. So far as the finding on the first issue, namely, about the valuation of the suit for purposes of Court‑fee is concerned, the contention of the learned counsel for the appellant was that as a part of land in dispute was banjar, a part was ghair mumkin (unculturable) and as on a part of it some fruit and other trees were growing, it was obligatory for the respondents to value this part of the land according to its market value and they should have paid Court‑fee on the valuation so fixed, in addition to the Court‑fee on the culturable land which was to be assessed in accordance with the provisions of section 7 (v) (c) of the Court Fees Act. 5‑A. In suits for the possession of land, houses and gardens the value of the subject‑matter is to be determined in accordance with the provisions of section 7 (v) of the Court Fees Act. Sub‑clause (a) of clause (v) would be applicable where the land revenue is permanently settled, sub‑clause (b) would be applicable when it is settled but not permanently, sub‑clause (c) applies to that land on which the land revenue is neither settled nor is permanent and sub‑clause (d) would apply where the land forms part of an estate, but is not a definite share of that estate, and is not separately assessed to land revenue. As the land in dispute is assessed to land revenue, but that revenue is not fixed, it was admitted by the parties, that the sub‑clause applicable is (c). This provision of law reads a follows: "(v) In suits for the possession of land, houses and gardens according to the value of the subject‑matter ; and such value shall be deemed to be‑ Where the subject‑matter is land, and‑ (a) . . . . . . . . . . (b) . . . . . . . . . . (c) Where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the year next before the date of presenting the plaint‑-- Fifteen times such net profits ; but where no such net profits have arisen therefrom‑-- the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood. 5‑B. The expression " such revenue " mentioned 1n this sub‑clause refers to the land‑revenue which has been settled, whether permanently or not and therefore ft is correct to say that in the case of land whose land revenue is not fixed, and varies from harvest to harvest, for valuing its subject‑matter this is the only sub‑clause which can apply. The con tention of the appellant's counsel, however, was that under the first part of this sub‑clause the value of that part of the land, which was yielding net profits, should have been assessed, according to its net profits, and under the second part of this sub‑clause the land, which was not yielding any income, being ghair mumkin or banjar, as well as the land on which trees are standing, should have been separately valued according to its market value. In our opinion, this contention has no force, because the valua tion of the land, as a whole, is to be assessed and if the land was yielding income the case would be covered by the first part of the sub‑clause and if no income was being received, it would be covered by the second part of the sub‑clause and valued according to its market value. As only a very small part of this land (about 7 kanals out of 142 kanals 14 marlas) was lying banjar, or was unculturable, it was not obligatory for the respondents to value that part of the land separately. If the argument advanced by the appellant's counsel is accepted, it would mean that even that land, which is lying fallow, but is otherwise capable of giving income, should be assessed according to its market value and only the land, which has been actually under cultivation during the previous harvest, is to be assessed according to its net profits. Such an interpretation is not supported by the language of this sub‑clause and, therefore, we do not find any force in the contention raised by the appellant's counsel. The record of this case does not show if any part of this land is covered by trees, but even if some trees are standing on a part of this land, that land could not be considered to be a garden and, hence, no question of that part of the land being assessed according to its market value arose.

6. We, therefore, hold that the subject‑matter of the suit was correctly valued and, hence, the finding of the trial Court on Issue No. 1 was correct.

7. For purposes of limitation, suits of this kind fall either under Article 10 of First Schedule to the Limitation Act, or under section 30 of the Punjab Pre‑emption Act, 1913, which Acts, admittedly, are applicable to this part of the Province. These provisions of law are worded as follows: Article

10. Description of suit Period of limitation Time from which period begins to run To enforce a right of pre‑emption whether the right s founded on law, or general usage or on special contract. One year When the purchaser takes under the sale sought to be impeached physical possession of the whole of the property sold, or where the subject of the sale does not admit of physical possession, when the instrument of sale is registered. Section 30. "In any case not provided for by Article 10 of the Second Schedule to the Limitation Act, 1908, the period of limitation !n a suit to enforce a right of pre‑emption under the pro visions of this Act shall, notwithstanding anything in Article 120 of the said Schedule, by one year‑ (1) In the case of a sale of agricultural land or of village immovable property, from the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such land or property, whichever date shall be the earlier ; (2) In the case of a foreclosure of the right to redeem village Immovable property, or urban immovable property, from the date on which the title of the mortgage to the property becomes absolute ; and (3) In the case of a sale of urban immovable property, from the date on which the vendee takes under the sale physical possession of any part of the property."

8. Under Article 10 of the Limitation Act, time commences to run from the date on which the purchaser takes, under the sale, physical possession of the whole of the property sold, or if the subject‑matter of the sale does not admit of physical posses sion, when the instrument of sale is registered. If neither of these conditions are fulfilled, Article 10 will have no applica tion and, for purposes of limitation, the law applicable would B be section 30 of the Pre‑emption Act. The subject‑matter of the sale in this case was a share in a joint holding and as the sale was not made by means of a registered instrument, this Article had no application, because the purchaser could not have taken possession of the whole of the property sold. Section 30 of the Pre‑emption Act, would, therefore, apply and the suit should have been filed within one year of the date of attestation of the mutation, or within one year of the date on which the vendee took physical possession, under the sale, of any part of the land sold. It is in evidence that Gulan vendee was In possession of the whole of the land of this Khata, including that which was not sold to him, prior to the date of the sale, because he was holding it as a sub‑tenant under Karim Bakhsh, who was recorded as a non‑occupancy tenant in the revenue papers in the year 1953‑

54. Assuming that he continued to occupy this land, after the date of the sale, It would not mean that he took physical possession of a part of this land under the sale, within the meaning of section 30 of the Pre‑emption Act ; his posses sion being prior and not subsequent to the date of sale. Reference, in this connection, may be made to three cases of the Lahore High Court, reported as Gyan Singh v. Gyan Singh and another (A I R 1923 Lab. 654), Misri Khan v. Shahji and another (A I R 1924 Lah. 394) and Dhanna v. Lekh Ram and others (A I R 1924 Lah. 695). In the first‑mentioned case, which was decided by a Division Bench, the plaintiffs had brought a suit for pre‑emption, within a year of the date of attestation of the mutation, but more than a year after the date of the oral sale. The defendant‑vendee had been in possession of the land before the sale in his capacity as a tenant. It was held that the period of limitation ran from the date of the mutation. Similar views have been expressed in the other two cases referred to above. The words "under the sale" which occur in section 30 of the Pre‑emption Act, are very significant and indicate clearly that possession of the purchaser must have been obtained in pursuance of the sale made in his favour and that if prior to the date of the sale he was in possession of any part of the land sold that possession cannot be deemed to be under the sale and, hence, time would run from the date of attestation of the mutation and not from any earlier date.

9. The mutation in the present case was sanctioned on the 28th October 1954, and the suit was filed on the 12th September 1955, i.e., within a year of the date of attestation. The suit was, therefore, rightly held to be within time.

10. With regard to the finding on issue No. 5, the con tention of the learned counsel for the appellant was that as the land In dispute was of the value of more than Rs. 100 and as section 54 of the Transfer of Property Act had been made applicable to this part of the Province in the year 1931, there could not be a valid sale, except by means of a registered docu ment and, as no such document was registered, there was no legal sale which could be pre‑empted by the respondents. To support this contention the learned counsel referred to a recent judgment of this Court, reported as Jangi v. Jhanda and others (P L D 1961 B J 34). He relied, in particular, on the following observa tions made at page 36 of this reported judgment :‑ "I am of the view that the dismissal of the suit of the plaintiff was justified. The reason for this view is that section 54 of the Transfer of Property Act, which enjoins that sale of any immovable property worth more than Rs. 100 can be effected only by a registered deed, had not been complied with. Some sections of the Transfer of Property Act were in force in the Bahawalpur State at the relevant time, and section 54 was one of them. As that section had not been complied with, the sale in favour of the plaintiff, on which reliance was placed, cannot be considered by Court to have been made, as the sale was not admitted by parties to the suit except the one in whose favour it was made. Learned counsel for the appellant pointed out that the sale which led to the suit for pre‑emption had also been effected by means of a mutation, but I do not see how that can help the case of the appellant. If the sale in favour of the vendees‑res pondents was invalid, the suit of the plaintiff must fail on the ground that there had been no sale. I might mention that the sale in favour of the vendees was admitted for the purposes of the present case, in the pleadings of the parties, and in this suit no question arose whether or not the sale had been affected. If the question arises between the vendor and the vendees whether there had been a sale, the vendees could perhaps succeed against the vendor by relying on part performance of the contract, but that point need not be dilated on, because the vendor of the land in suit did not deny the sale and the assertion of the appellant in his plaint that there had been a sale was admitted by the vendees in their written statement." It will thus be seen that although the sale, which was being pre‑empted, had been made orally and although the value of the property was more than Rs. 100, no final opinion was expressed by the Court, as to whether that sale was pre‑emptible or not and the plaintiff's suit was dismissed on the ground that the sale on which he relied for his title as a pre‑emptor, was not a valid sale, being in violation of the provisions of section 54 of the Transfer of Property Act. In coming to this conclusion the Court, probably, had in its mind the provisions of section 15 of the Pre‑emption Act, under which only owners or occupancy tenants of land can pre‑empt a sale and, therefore, if the pre‑emptor was not an owner of land, in a particular village, he had no right to pre‑empt any sale of land made in that village. The ownership of the preemptor must be perfect and as, in this particular case, his title was found to be defective, on account of absence of a registered document, he could not be considered to be an owner and, hence had no right to pre‑empt the sale. The decision given In this case could not be construed as laying down the proposition that a pre‑emptor, whose title is otherwise perfect, cannot pre‑empt a sale of some other land, on the ground that the vendee's title was imperfect, on account of the absence of a registered document. 10‑A. It 1s well known that if a pre‑emptor succeeds in such a suit, he acquires whatever rights vest in the vendee and if the vendee's title is defective the pre‑emptor would get that defective title. Where the transaction had to be made by means of a registered document, but no such document was executed or registered, the transferee is not without a remedy, because he can rely on the doctrine of part performance, which has been incorporated in section 53‑A of the Transfer of Property Act and can defend his title against the transferor, or those claiming through him. He can also sue the transferor for specific performance of the agreement of sale. It is, therefore, in our opinion not correct to say that a sale which could have been made only by means of a registered document, but is not so made, cannot be pre‑empted. Another Bench of this Court, in Abdul Khaliq v. Sher Muhammad and others (P L D 1961 B J 79) decreed the pre‑emptor's suit and in another case, reported as Niaz Ahmad and others v. Mian Abdur Rahman and others (P L D 1961 B J 1) upheld the decree of the trial Court, in a pre‑emption suit, although in both of them the land in dispute, which was in excess of Rs. 100 in value, was sold without a registered deed.

11. This very question appears to have been raised in several other cases before the High Court of the former Bahawalpur State and although the judgments of that Court are not binding on this Court, they have persuasive value and, therefore, it would be useful to refer to one of those judgments, which was delivered in the year 1946 in Civil Appeal No. 73 of 1944. The question raised in that case was precisely the same as was raised before us, namely, that the sale in question having been made in violation of the provisions of section 54 of the Transfer of Property Act, that sale was not pre‑emptible. The Court, relying on two full Court judgments of the Allahabad High Court, held that even though the title of the vendee in such circumstances be defective, the sale was pre‑emptible under the law. The two cases of the Allahabad High Court have been reported as Janki v. Girjadat and another (I L R 7 All. 482) and Begum and others v. Muhammad Yaqub and another (I L R 16 All. 344). The following observations made at page 350 of the second‑mentioned reported judgment, which was based on the previous decision of the same Court and which are applicable, with full force, to the present case, are very significant :‑ "In my opinion, in considering whether or not the Muhammadan Law of Pre‑emption applies to a transaction, we must see whether the conditions existed upon which a right of pre‑emption would arise, as those conditions were understood in the Muhammadan Law applicable to the sect to which the vendor belonged. To import into the Muhammadan Law of Pre‑emption the definition of the word `sale' coupled with the restriction of the transfer of ownership contained in section 54 of Act IV of 1882 would be materially to alter the Muhammadan Law of Pre‑emption and to afford fraudulent persons a means of avoiding success fully the obligation of that law, the object of which was to enable cc‑sharers and near neighbours, if they so desired, to exclude strangers from the enjoyment of immovable property to which the Muhammadan Law of Pre‑emption applied. The co‑sharer or near neighbour is not given a right under Act IV of 1882 to compel a vendor to execute or the vendor or vendee to register an instrument of transfer. The decree of a successful pre‑emptor is under section 214 of Act XIV of 1882, not a decree ordering the vendor or the vendee to execute any instrument transferring the ownership in the property, but is a decree for possession of the property on payment of the purchase money with the costs. I cannot think that it was the intention of the Legislature in passing Act IV of 1882 to alter directly or indirectly the Muhammadan Law of Pre‑emption as it existed and was understood for centuries prior to the passing of Act IV of 1882, by substituting for the sale referred to in that law, the `sale' coupled with the restriction of section 54 of Act IV of 1882."

12. With all due respect, we are in full agreement with the views expressed in this reported case and are of opinion that the Legislature when enacting section 54 of the Transfer of Property Act could not have intended to add this provi sion of law to other laws dealing with the sale of property and in force in the same area. No doubt, a sale made in viola tion of the provisions of section 54 of the Transfer of Property Act would not be 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. Whatever rights are possessed by the vendee, under such a defective sale, would go to the pre‑emptor, if he succeeds, and if he is prepared to take that risk, it is not for the vendee to say that his title is defective and that, therefore, that defective title cannot be passed on to the pre‑emptor.

13. For reasons given above, we hold that although the sale which is being pre‑empted in the present case was not made by means of a registered document, the respondents' suit could not have been thrown out on this ground and, therefore, the sale made in favour of the appellant was pre‑emptible.

14. With regard to the question of jurisdiction, which was raised during arguments before us, much need not be said. The suit was decided first by a Sub‑Judge exercising second class powers and after its remand, by another Sub‑Judge exercising similar powers. Under section 3 of the Suits Valuation Act, 1887, the Provincial Government is empowered to determine the value of land, for purposes of jurisdiction, in the suits mentioned in section 7 (v) of the Court Fees Act, but no such rules for determining the value appear to have been framed by the former Bahawalpur Government. Rules under this provision of law were framed by the Government of the Punjab, and are contained in Chapter 3‑D, Volume I of the High Court Rules and Orders, but as these rules were not extended to the former Bahawalpur State and as the existing laws applicable to this part of the Province were saved by section 10 of the Establishment of West Pakistan Act, 1955, and by Article 224 of the late Constitution, the rules framed by the former Punjab Government had no application to this case. As held by a Division Bench of this Court, in an unreported judgment, delivered in R. F. A. No. 147 of 1955 for purposes of jurisdiction the value of the subject‑matter of suit for land is the market value and not the value as determined according to the rules referred to above. The market value of the land in dispute was, admittedly, less than Rs. 5,000 and hence, the two Courts which initially decided the respondents' suit had jurisdiction to decide it. As the value of the subjec6 matter of the suit was less than Rs. 5,000, an appeal lay to the District Judge, under section 39 of the Punjab Courts Ac, 1 which provision of law was also made applicable to this part of the Province. The two District Judges, who decided this case to appeal had, therefore, jurisdiction to hear the appeals. The objection raised by the appellant's counsel being without any force, is hereby, overruled.

15. For reasons given above, we find no force in this appeal and, hereby, dismiss it with costs. A. H. Appeal dismissed.