1988 PLP 2076 (CLC)

ABAID ULLAH KHAN, J.‑‑This appeal against the judgment and decree of the learned Civil Judge, Chiniot, dated the 7th July, 1979, dismissing the appellant's suit for possession by pre‑emption of 967 Kanals 17 Marlas of the land in dispute, being half share of 1929 Kanals of land entered in Khata No 1 plus one‑fourth share of 13 Kanals 7 Marlas of land bearing Khata No. 3 of the Jamabandi for the year 1970‑71, situate in the area of village Sadev, Tehsil Chiniot, District Jhang, arises out of the following circumstances. One Mst. Sahib Bibi, daughter of Diwan Ali Shah and widow of Nawazish Ali Shah, was the owner of the land in question. She sold it to the respondents and Mutation No. 290 (copy Exh. P.1) touching the sale was attested on the 23rd September, 1974. Mst. Nasira Btool, appellant, instituted suit on the 22nd September, 1975, to pre‑empt the sale. She claimed superiority of right of pre‑emption on the basis of being an heir of the vendress and owner of the estate wherein the land in suit lay. According to her the respondents were neither related to the vendress nor were owners of any land in the estate. She alleged that the sale had taken place for Rs.1,21,000 but an ostensible sale consideration of Rs.5,00,000 had been fictitiously described in the Mutation.

2. The respondent contested the suit, denied the preferential pre‑emptive right of the appellant and asserted that they had paid Rs.5,00,000 as price of the land. They averred that pursuant to the oral sale they had taken possession of the land on the 13th April, 1974, and, therefore, the suit was time‑barred. They claimed compensation to the tune of Rs.1,00,000 which they said they had spent on effecting improvements on the land.

3. The learned trial Court held that the appellant's relationship with and of her being heir of the vendress was not proved. It may be mentioned that the respondents, like the appellant, are owners of estate by virtue of having obtained land through exchange earlier than the institution of the suit. It concluded that Rs.5,00,000 had been fixed in good faith and paid as price of the land by the respondents. It formed the view that the respondents had taken possession of the land on the 13th April, 1974, as alleged by them and that the suit filed more than a year, therefore, was barred by time. It held the respondents to be entitled to receive Rs.1,06,975 as compensation for improvements though they had themselves put forth claim of Rs.1,00,000 only.

4. The subject‑matter of sale being fractional share of joint land it was not capable of being taken physical possession of. Therefore, the respondents could not take benefit of the provisions of section 30 of the Punjab Pre‑emption Act, 1913, for pleading the bar of limitation to the suit. The finding of the learned trial Court in this behalf describing the suit to be out of time is not correct.

5. The finding of the learned trial Court that Shajranasab, whose copy is Exh. P.5, does not establish link between the appellant and the venderss is open to exception. The learned Court has not properly read and interpreted various entries of this document. At page,4 of Exh. P.5 Rang Shah is shown to have four sons: Shahabal Shah, is a Shah, Abul Fateh and Said Ilyas. As per note on page 4, line 6 of this document Shahabal Shah's son and son's son as mentioned at page 7, line 15 are Said Jalal and Qalandar Shah. Qalandar Shah's son and son's son, vide note on page 7, line 13 are found entered at page 8, line 7 as Hussain Shan and Muhammad Shah. Amir Shah and Said Ilyas are shown to be sons of Muhammad Shah. The latter entries of the Shajranasab confirm that Amir Shah's son is Noor Zaman and the latter's son is Sultan Shah who is the father of the appellant, Mst. Nasira Batool.

6. The descendants of the Shah, son of Rang Shah, as per note at page 4, line 3, right upto Dewan Ali Shah (father of the vendress, Mst. Sahib Bibi), are given at page 5, line 9 of Exh. P

5. The entries recording Mst. Sahib Bibi to be the daughter of Dewan Ali Shah, son of Khair Shah, son of Chiragh Shah, are found of the recent part of the Shajranasab. The Shajranasab fully establishes that Mst. Nasira Batool (appellant) is collateral heir of Mst. Sahib Bibi (vendress). The respondents are strangers. Therefore, the appellant's right of pre‑emption is superior to that of the respondents. The view of the learned trial Court to the contrary is not right.

7. No serious attempt was made on behalf of the appellant to dispute the correctness of the learned trial Court's finding touching the payment of Rs.5,00,000 as price of the land in dispute as also the amount spent by the respondents in effecting improvements. However, the learned counsel for the appellant pointed out that on account of improvements the respondents could not be paid in excess of Rs.1,00,000 which they had claimed in their written statement. To this extent no caveat can be entered to his submission. In all the respondents are to get Rs.6,00,000.

8. In view of the above this appeal is accepted, the judgment and decree of the learned trial Court are set aside and a decree for possession of the land in suit is passed in favour of the appellant and against the respondents and it is directed that the appellant shall pay into the learned trial Court Rs.6,00,000 on or before the 31st May, 1988, and on such payment being made the respondents shall deliver possession of the land in question to the appellant whose title thereto shall be deemed to have accrued from the date of such payment, but if the aforesaid amount of Rs.6,00,000 is not so paid on or before the 31st May, 1988, the appellant's suit shall be dismissed with costs throughout. The parties are left to bear their own costs. H. B. T./N‑83/L Appeal accepted.