1996 PLP 1701 (MLD)

ISSUES: (1) Whether the suit is bad for non‑joinder of necessary parties? OPD. (2) Whether the suit is bad for being partial? OPD. (3) Whether the suit has been wrongly valued for the purposes of court‑fee and jurisdiction? If so its effect and‑ what. is the correct valuation? OPD. (4) Whether the description of the suit land is incorrect? If so, its effect? OPD.. (5) Whether the plaintiff has a superior right of pre‑emption against the defendants? OPP. (6) Whether the ostensible sale amount of Rs.10,000 was fixed in good faith or actually paid? OPD. (7) If Issue No.6 is not proved, what was the market value of the suit land at the time of sale? OP Parties. (8) Relief. The parties produced their evidence, oral as well as documentary. Haji Muhammld Registration, Clerk, Saddar, D.G. Khan appeared as P.W.1. He brought Register Behi No.l. He testified about the correctness of copy Exh.Pl of sale‑deed which was according to the aforesaid Register wherein name of Bakhsha was not mentioned as one of the purchasers. During his cross- examination he made a perusal of the original sale deed Exh. D‑1 wherein Bakhsha was mentioned as one of the purchasers. He opined that the Copy Clerk may have left the name of Bakhsha in Register. Behi No.1 due to inadvertence. . Khuda Bakhsh figured in the witness‑box as P.W.2 and stated that he did not make sale of the property to Bakhsha. In his cross‑examination he admitted his signatures Exh.Dl/A on sale‑deed Exh. D‑

1. Din Muhammad P.W.3 stated about the sale price of the suit land. The plaintiff produced Exh. P2, copy of Khasra Girdawari; Exh.P3, copy of Jamabandi Exh. P4 and Exh.P5, copies of Khatooni; Exh.P6, copy of Jamabadi; Exh. P7 and Exh.P8, copies of pedigreetable and Exh.P9 copy of mutation. Ladha defendant‑vendee appeared as P.W.1 and stated the facts of his case. He deposed that the suit property was purchased for an amount of Rs.10,000 and that Bakhsha as one of the purchasers who had not been impleaded in the list of the defendants. Ghulam Rasool P.W.4 is the general attorney of the plaintiff who submitted the special power of attorney as Exh.P10 and stated that Mst. Bhirawan plaintiff was the collateral of the vendor and a co‑sharer .in the Khata. After hearing the parties learned trial Court relied upon Register Behi No.1 wherein Bakhsha is not entered as one of the purchasers and disposed of Issues Nos. l and 2 against the defendants vendees. Issues Nos.3 and 4 were not pressed. It was held while disposing of issue No.5 that the pre‑emptor had the superior pre-emptive right. The pre- emptor admitted the sale price of the suit land as Rs. ‑10,000 and issues Nos.6 and 7 were disposed of accordingly. Consequently the suit was decreed in consideration for an amount of Rs.10,

000. An appeal was preferred and relying on AIR 1925 Lahore page 343 as well as PLD 1963 Azad Jammu.and Kashmir page 44 the lower Appellate Court held that it was a suit wherein Bakhsha purchaser had not been impleaded in the list of the defendants were by to the extent of his share the, suit for possession by pre‑emption was not instituted which was that of partial pre‑emption. Consequently the judgment and decree passed by the trial Court was set aside and the suit for possession by pre‑emption was dismissed. Hence this regular second appeal which has been resisted by the respondents/defendants. 4. 1 have heard the learned counsel for the parties and gone through the record before me. Learned counsel for the appellant‑plaintiff argued that the statement of Haji Muhammad, Registration Clerk P.W.1 has clarified the matter as in the Register Behi No.1 Bakhsha was not entered as one of the purchasers while the remaining eight vendees were mentioned therein and that Exh.Pl was a certified copy of the entries of the said Register. He maintained that the matter was beyond the control of the pre‑emptor and thus she had no option but to rely upon the entry of the aforesaid Register which was nothing but the public record. According to him the vendees‑defendants did not make any effort to get corrected the entry in the aforesaid Register and. the same ‑ would remain operative. He also referred to the statement of Khuda Rakhsh. P.W.2 who deposed that he had not made sale of the property under pre‑emption to Bakhsha. According to him in para. 4 of the plaint it was specifically narrated that no portion of the land in dispute was' left and that the suit for possession by pre- emption was instituted with respect to whole of the suit property sold by Khuda Bakhsh. On the contrary learned counsel for the respondents referred to Jawala Das and others v. Gopal Lal (pre‑emptor) and Des Raj and others AIR 1925 Lahore 343 and argued that where out of the several vendees one vendee was impleaded after time whole of the suit was liable to be dismissed. He also relied on Khawaja Umar Joo v. Muhammad Hussain, and others PLD 1963 Azad Jammu and Kashmir 44 and argued that the pre‑emption suit against all legal representatives of deceased vendee except one was to be dismissed as a whole even, if the application to bring one remaining legal representative on record .is made beyond the period of limitation fixed for institution of suit. He argued that there was one indivisible transaction and one sale‑deed pertaining to the suit property and that since Bakhsha vendee has been eclipsed from the list of the defendants the suit has rightly been dismissed by the lower Appellate Court. He added that in the copy of Jamabandi the names of nine vendees including Bakhsha have been narrated and the suit is hit by non joinder of necessary party i.e. Bakhsha vendee which has become that of partial pre‑emption. In my view the reasoning adopted by the learned counsel for the appellant‑plaintiff/pre emptor has to prevail. It would be proper to express at this stage that the ruling referred to by the learned counsel for the respondents and printed as AIR 1925 Lahore 343 is not applicable as in that case the omission to implead the correct defendant‑vendee was due to wrong copy of the sale‑deed supplied to the pre emptor/plaintiff by the Registration Department. In the instant matter in the relevant. Register Behi No.1 eight vendees who have been impleaded in the list of the defendants have been shown as the purchasers of the suit property. It shall not be out of place to express that the said Register can safely be termed to be the public record and the recitals mentioned therein are entitled to due weight. This Register plays the pivotal legal role. To exemplify if a sale‑deed is registered on 2‑2‑1996 and the same fact is entered to the Register Behi No:l on 3‑3‑1996 the period of limitation in a suit for possession by pre‑emption would be computed from the date of the entry of the sale‑deed in the Register Behi No.1 on 3‑3‑1996 and not with effect from 2‑2‑1996. Thus, the pre‑emptor is not at fault and she is entitled to derive the legal benefit out of the recitals in the Register Behi No.1 on the basis of which certified copy Exh.P‑1 of the sale‑deed has been issued. On this score original sale‑deed Exh.D‑1 shall stand eclipsed A for the purpose of the factual controversy in hand. The entries in the Jamabandi are made by the Patwari on the basis of the sale‑deed which was under the valid possession of the defendants‑vendees and on this ground the pre‑emptor/plaintiff cannot be held responsible especially when, as expressed (supra), the entries in Register Behi No.1 have to be given the legal weight and I have passed the order accordingly. In para. 4 of the plaint it was specifically mentioned that the suit was being instituted with respect to whole of the land sold through sale‑deed registered on 19‑5‑1975 and whole of the suit land has been mentioned in the plaint. Not a fraction has been left. The ruling published as PLD .1963 Azad Jammu and Kashmir 44 is also not applicable having the different facts and particularly wherein one of the legal representatives of the vendee was left at the time of the institution of the suit which is not the dispute in hand. I would be glossing over an important aspect of the matter by expressing that in case the weight is granted to the assertions raised by the learned counsel for the respondents‑vendees, it would be nothing but giving the free hand to the clerical staff of the Registration Office. It is known to all of us that .the texture of the society is becoming substandard with passage of time and the control of the Authorities on the subordinates is becoming loos. If the proposed relief is not granted to the pre‑emptor/plaintiff, a mischief doer posted the Registration Office as Copy Clerk may start plying havoc even though right of pre‑emption tias the blessing of the Muslim Law as well. The devices are being coined to provide wrongful gain to one party and wrongful loss to the other party, quite in rife, these days and if the female pre‑emptor has fallen a prey to that she is definitely entitled to the discretion of this Court. The pre‑emptor is not ‑ at fault. She is willing to pay whole of the amount pertaining to whole of the property and the defendants‑vendees are liable to pay the price of the land to Bakhsha after receiving the same from the trial Court. On the aforesaid technical ground the pre‑emptor cannot be non‑suited especially when she is an illiterate female living in a village to whom the cloak of protection through the law is available. Hence in view of Exh.P‑1 neither it is a case of non joinder of necessary parties nor that of partial pre‑emption especially when whole of the land in dispute is incorporated in the plaint. 1, therefore, do e not agree with the lower Appellate Court and, set aside its findings on Issues Nos. l and 2.

5. For what has been said above, I accept this regular second appeal, set aside the impugned judgment and decree dated 5‑7‑1979 passed by the District Judge, D.G. Khan and restore the judgment and decree dated 11‑4‑1979 passed by the trial Court. In view of the circumstances of the matter, the parties are left to bear their own costs throughout.

6. Learned counsel for the appellant has told that whole of the pre‑emption money in the sum of Rs.10,000 has already been deposited. A.A./B‑7/L Appeal accepted.