P L D 1988 Lahore 45 (PLP)

This is a regular second appeal by the plaintiff /pre‑emptor against the judgment and decree of the learned District Judge, Jhelum dated 15‑3‑1968 upholding in appeal the judgment and decree of the trial Court dated 3‑3‑1967 dismissing the plaintiff's suit.

2. Facts giving rise to this appeal, briefly stated, are that one Mst. Muhammad Bi sold 41 kanals and 15 marlas of land situate in village Thaple, tehsil and district Jhelum to Mst.Razia respondent No.1 on 30‑6‑1965. Muhammad Malik appellant brought a suit to pre‑empt this sale on 30‑6‑1966. He claimed superior pre‑emptive right on the ground that he was one of the heirs of the vendor and was also an owner of the land in village whereas the vendee (Mst. Razia) was not possessed of any such qualificE.tion. Mst. Razia resisted the suit on the plea that she had sold the land in dispute to Ghulam Rasul respendent No.2. Herein in recognition of his superior right of pre‑emption within the limitation period. Ghulam Rasul was accordingly impleaded as a defendant. Pleadings of the parties gave rise to the following issues: ‑ (1) Whether the plaintiff has got the right to pre‑empt the sale?OP P. (2) Whether defendant No.1 sold the land in dispute to defendant No.2 in recognition of his pre‑emptive right and what is its effect? OPD. (3) Whether the sale in favour of defendant No.2 is collusive and Benami and what is its effect? OPD. (4) Relief.

3. Both the parties adduced evidence oral, as also documentary, in support of their respective contentions /pleas. Evidence led by the defendants was to the effect that Mst. Razia, the first vendee had sold the suit land to Ghulam Rasul defendant in recognition of his superior right of pre‑emption and the sale was made before the institution of the plaintiff's suit. This subsequent sale was reported to the Patwari, who recorded it in Roznmacha dated 10‑9‑1966 (Ex.D‑1) and mutation No.603 (Ex.D‑2) was also entered on the said date. it appears that mutation (Ex.D‑2) was put up before the Revenue Officer on 14‑8‑1966 when it was rejected because the entries made therein were not in accordance with the revenue record. Another mutation 604 (Ex.D‑3) was then entered on the same day on the direction of Revenue Officer who sanctioned it on that very date. Relying on this evidence, learned trial Court held that the subsequent sale in favour of Ghulam Rasul defendant was effected on 10‑6‑1966 i.e. within one year of the date of the first salt ‑ It was further found that Ghulam Rasul defendant, the subsequent vendee being the heir of the vendor 'had superior right of pre‑emption as against the plaintiff, whose only qualification was that he was owner of the land in the village. With these findings, learned trial Court by judgment dated 3‑3‑1967 dismissed the plaintiff's suit.

4. Appellant preferred an appeal but with no better result as the same was dismissed by the learned District Judge vide judgment dated 15‑3‑1968. Learned District Judge repelled the contention raised on behalf of the appellant that Mutation No.603 entered on 10‑6‑1966 was fictitious. Relying upon the report of the, Patwari in the daily diary dated 10‑6‑1966 (Ex.D.1), the lower appellate Court came to the conclusion that the sale had in fact taken place on 10‑6‑1966 when the mutation was entered. 5. 1 have heard the learned counsel for the parties. Learned counsel for the appellant has reiterated the contention canvassed before the lower appellate Court namely that the second sale in favour of Ghulam Rasul had not taken place on 10‑6‑1966 and that the mutation No.603 was open to serious doubt. I find no force in this contention. There is ample evidence on the record to sustain the findings of the learned Courts below on this aspect of the matter, A Patwarils Roznamacha (Ex.D‑1) and mutations Exs.D‑2 and D‑3 quite clearly show that the sale in favour of Ghulam Rasul did take place on or before 10‑6‑1966. The concurrent findings of the learned Courts below based on proper consideration of the evidence on record are not open to interference in second appeal.

6. It is next contended by the learned counsel for the appellant that the sale in favour of Ghulam Rasul materialized on 14‑8‑1966 when mutation In his favour was sanctioned by the Revenue Officer. Basing himself on the provisions of section 30 of the Punjab Pre‑emption Act, learned counsel has argued that an oral sale is completed on ,the attestation of the mutation by a Revenue officer. Learned counsel has also placed reliance on (1) PLD 1954 Baghdadul Jadid 51, (2) 1976 SCMR 362, (3) PLD 1978 Baghdadul Jadid 86, (4) PLD 1981 SC (AJ&K) 103 and (5) 1984 CLC 1274. 6‑A. Argument of the learned counsel for the appellant appears to be misconceived. Section 30 of the ere‑emption Act has nothing to do with the completion of the sale. It only prescribes the limitation for the pre‑emption suits filed under the provisions of the Punjab Pre‑emption Act. relevant portion of section 30 reads as under:‑ "In any case not provided for by Article 10 of The Second Schedule of the Limitation Act, 1908, The period of limitation In a suit to enforce a right of preemption under the provisions of this Act, shall, notwithstanding anything in Article 120 of the said Schedule be one year‑ (1) in ‑the case of a sale of agricultural or of village immovable property, (1) (2) 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 . . . ." Quite evidently, the words "from the date of the attestation (if any) of the sale by a Revenue Officer" in section 36 are intended to fix the terminus a quo for reckoning the period of Limitation. They have no bearing on the question as to when a sale is effected/completed. In fact, sanctioning of a mutation is not an essential ingredient or incident of a sale. It can only be used as evidence of sale. Refer P L D 1969 Lah. 471 (D.B,) Reference may also be made to another D.B. judgment reported as 'Jangi v. Jhanda (P L D 1961 B.J. 34) wherein it was observed that a mutation is sanctioned either on the basis of an oral sale or sale by a deed and so far as the sale is concerned, it was held "it shall be deemed to have been completed on the day on which it was effected and not on the date on which mutation in the revenue records was sanctioned about it." It was further held "title in the property passes when the transaction of sale is completed and is not postponed till the attestation of the mutation in the revenue records". Now the question is: when was the sale in favour of Ghulam Rasul respondent effected? Sale has been defined in section 54 of the Transfer of Property Act as "A transfer of ownership in exchange for a price paid or promised or part paid and part promised." The paragraph next following the definition regarding the mode of making a sale only through a registered instrument is not relevant in the instant case. It may be noted that the evidence on the record referred to hereinabove shows that the subsequent sale in favour of Ghulam Rasul was made orally; it was reported to the Patwari by the parties thereto who had admitted the payment of consideration and the delivery of possession. These facts were duly incorporated in the Patwarils Roznamcha dated 10‑6‑1966 (Ex.D.1) as also in the mutation entered on that date (Ex.D.2). On this evidence, learned Courts below found and, in my view, rightly so that the sale in favour of Ghulam Rasul had been effected on or before 10‑6‑1966. Thus, the sale in question, in view of the legal position aforestated, had been completed or 10‑6‑1966 and not when the mutation in respect thereof was sanctioned.

7. Before concluding, the authorities cited by the learned counsel for the appellant may be examined. None of these cases is relevant to the proposition canvassed by the learned counsel for the appellant. They proceed on their own facts. In P L D 1954 B.J. 51, dispute was between the vendor and the vendees. Vendor brought a suit for declaration that the sale‑deed was fictitious as no price had in fact been paid by the vendees nor was the possession of the land delivered to them. Suit was decreed by the trial Court on the ground that the sale though made through a registered deed was without consideration. This finding was upheld by the First Appellate Court as also by the High Court in the second appeal. This case is Of no help to the appellant because in the instant case, Mst.kazia had herself approached the Patwari and told him that she had sold the suit land to Ghulam Rasul and had received Its. 400 from him as price of the land. 1976 S C M R 362 is an authority for the proposition that where physical Possession has not been taken under the sale, suit for pre‑emption brought within one year of in attestation of mutation is within limitation. Correctness of this proposition can hardly be disputed. In 1984 C L C 1274, admitted position was that the sale had taken place on the date when mutation was sanctioned. It was held that possession of the vendee before the sale was of no consequence for the purpose of calculating the period of limitation and the limitation commenced from the date of attestation of the mutation. In P L D 1978 B.J. 86, it was held that a sale made orally or through an unregistered instrument in contravention of section 54 of Transfer of Property Act was of no legal consequence and this principle applied equally to the pre‑emptor and the vendee. Similar view was taken in P L D 1981 S C (AJ&K) 103 wherein it was observed that since the Transfer of Property Act was in force in Azad J&K, a sale would be valid and completed only when sale‑deed was registered. These two later authorities, too, have no relevance as in the present case, it is not in dispute that sale could validly be made through oral transaction.

8. Upshot of the above discussion is that this appeal fails and is dismissed but no order as to costs. A.A. /M‑441/L Appeal dismissed. P L D 1988 Lahore 45 Before Zia Mahmood Mirza, J MUHAMMAD MALIK‑‑Plaintiff/Appellant versus Mst. RAZIA BEGUM and another‑ ‑Defendants/ Respondents Regular Second Appeal No. 497 of 1968, heard on 17th October, 1987. (a) Punjab Pre‑emption Act (I of 1913)‑‑ ‑‑‑S. 15‑‑Civil Procedure Code (V of 1908), S. 100‑ ‑Pre‑emption suit‑ Vendee's plea in written statement that she had sold pre‑empted land to third person in recognition of his superior right of pre‑emption before institution of suit of pre‑emptor, upheld by Trial Court and First Appellate Court‑‑Second appeal against concurrent findings of fact‑ ‑Maintainability‑‑ Concurrent findings of Courts below on questions of fact based on proper consideration of evidence, held, were not open to interference in second appeal. (b) Punjab Pre‑emption Act (I of 1913)‑‑ ‑‑‑ S. 30 ‑‑Words from the date of the attestation (if any) of the sale by a Revenue Office ‑‑Meaning, scope and import of‑‑ Such words, used in S.30, held, were intended to fix the terminus a quo for reckoning period ‑‑of limitation‑ ‑Provisions of S.30 of Pre‑emption Act have nothing to do with completion of sale‑ ‑Sanctioning of a mutation was not essential ingredient or incident of sale. P L D 1954 B J 51; 1976 S C M R 362; P L D 1978 B.J. 86; P L D 1981 S C (AJ&K) 103 and 1984 CLC 1274 ref. P L D 1969 Lah. 471 and Jangi v. Jhanda PLD 1961 B.J. 34 rel. (c) Transfer of Property Act (IV of 1882)‑‑ ‑‑‑S. 54‑‑Word "sale" ‑‑Meaning, scope and mode of making‑‑" Sale", means transfer of ownership in exchange for a price paid or promised or part paid and part promised‑‑ Where sale was made orally and reported to Patwari by parties thereto who had admitted payment of consideration and delivery of possession, on basis whereof mutation was entered, sale would he effected and completed on that day and not when mutation in respect thereof was sanctioned. Ajmal Kamal Mirza for Appellant. Maulvi Siraj‑ul‑Haq for Respondent No.

1. Nemo for Respndent No.2. Date of hearing 17th October, 1987. JUDGMENT This is a regular second appeal by the plaintiff /pre‑emptor against the judgment and decree of the learned District Judge, Jhelum dated 15‑3‑1968 upholding in appeal the judgment and decree of the trial Court dated 3‑3‑1967 dismissing the plaintiff's suit.

2. Facts giving rise to this appeal, briefly stated, are that one Mst. Muhammad Bi sold 41 kanals and 15 marlas of land situate in village Thaple, tehsil and district Jhelum to Mst.Razia respondent No.1 on 30‑6‑1965. Muhammad Malik appellant brought a suit to pre‑empt this sale on 30‑6‑1966. He claimed superior pre‑emptive right on the ground that he was one of the heirs of the vendor and was also an owner of the land in village whereas the vendee (Mst. Razia) was not possessed of any such qualificE.tion. Mst. Razia resisted the suit on the plea that she had sold the land in dispute to Ghulam Rasul respendent No.2. Herein in recognition of his superior right of pre‑emption within the limitation period. Ghulam Rasul was accordingly impleaded as a defendant. Pleadings of the parties gave rise to the following issues: ‑ (1) Whether the plaintiff has got the right to pre‑empt the sale?OP P. (2) Whether defendant No.1 sold the land in dispute to defendant No.2 in recognition of his pre‑emptive right and what is its effect? OPD. (3) Whether the sale in favour of defendant No.2 is collusive and Benami and what is its effect? OPD. (4) Relief.

3. Both the parties adduced evidence oral, as also documentary, in support of their respective contentions /pleas. Evidence led by the defendants was to the effect that Mst. Razia, the first vendee had sold the suit land to Ghulam Rasul defendant in recognition of his superior right of pre‑emption and the sale was made before the institution of the plaintiff's suit. This subsequent sale was reported to the Patwari, who recorded it in Roznmacha dated 10‑9‑1966 (Ex.D‑1) and mutation No.603 (Ex.D‑2) was also entered on the said date. it appears that mutation (Ex.D‑2) was put up before the Revenue Officer on 14‑8‑1966 when it was rejected because the entries made therein were not in accordance with the revenue record. Another mutation 604 (Ex.D‑3) was then entered on the same day on the direction of Revenue Officer who sanctioned it on that very date. Relying on this evidence, learned trial Court held that the subsequent sale in favour of Ghulam Rasul defendant was effected on 10‑6‑1966 i.e. within one year of the date of the first salt ‑ It was further found that Ghulam Rasul defendant, the subsequent vendee being the heir of the vendor 'had superior right of pre‑emption as against the plaintiff, whose only qualification was that he was owner of the land in the village. With these findings, learned trial Court by judgment dated 3‑3‑1967 dismissed the plaintiff's suit.

4. Appellant preferred an appeal but with no better result as the same was dismissed by the learned District Judge vide judgment dated 15‑3‑1968. Learned District Judge repelled the contention raised on behalf of the appellant that Mutation No.603 entered on 10‑6‑1966 was fictitious. Relying upon the report of the, Patwari in the daily diary dated 10‑6‑1966 (Ex.D.1), the lower appellate Court came to the conclusion that the sale had in fact taken place on 10‑6‑1966 when the mutation was entered. 5. 1 have heard the learned counsel for the parties. Learned counsel for the appellant has reiterated the contention canvassed before the lower appellate Court namely that the second sale in favour of Ghulam Rasul had not taken place on 10‑6‑1966 and that the mutation No.603 was open to serious doubt. I find no force in this contention. There is ample evidence on the record to sustain the findings of the learned Courts below on this aspect of the matter, A Patwarils Roznamacha (Ex.D‑1) and mutations Exs.D‑2 and D‑3 quite clearly show that the sale in favour of Ghulam Rasul did take place on or before 10‑6‑1966. The concurrent findings of the learned Courts below based on proper consideration of the evidence on record are not open to interference in second appeal.

6. It is next contended by the learned counsel for the appellant that the sale in favour of Ghulam Rasul materialized on 14‑8‑1966 when mutation In his favour was sanctioned by the Revenue Officer. Basing himself on the provisions of section 30 of the Punjab Pre‑emption Act, learned counsel has argued that an oral sale is completed on ,the attestation of the mutation by a Revenue officer. Learned counsel has also placed reliance on (1) PLD 1954 Baghdadul Jadid 51, (2) 1976 SCMR 362, (3) PLD 1978 Baghdadul Jadid 86, (4) PLD 1981 SC (AJ&K) 103 and (5) 1984 CLC 1274. 6‑A. Argument of the learned counsel for the appellant appears to be misconceived. Section 30 of the ere‑emption Act has nothing to do with the completion of the sale. It only prescribes the limitation for the pre‑emption suits filed under the provisions of the Punjab Pre‑emption Act. relevant portion of section 30 reads as under:‑ "In any case not provided for by Article 10 of The Second Schedule of the Limitation Act, 1908, The period of limitation In a suit to enforce a right of preemption under the provisions of this Act, shall, notwithstanding anything in Article 120 of the said Schedule be one year‑ (3) in ‑the case of a sale of agricultural or of village immovable property, (3) (4) 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 . . . ." Quite evidently, the words "from the date of the attestation (if any) of the sale by a Revenue Officer" in section 36 are intended to fix the terminus a quo for reckoning the period of Limitation. They have no bearing on the question as to when a sale is effected/completed. In fact, sanctioning of a mutation is not an essential ingredient or incident of a sale. It can only be used as evidence of sale. Refer P L D 1969 Lah. 471 (D.B,) Reference may also be made to another D.B. judgment reported as 'Jangi v. Jhanda (P L D 1961 B.J. 34) wherein it was observed that a mutation is sanctioned either on the basis of an oral sale or sale by a deed and so far as the sale is concerned, it was held "it shall be deemed to have been completed on the day on which it was effected and not on the date on which mutation in the revenue records was sanctioned about it." It was further held "title in the property passes when the transaction of sale is completed and is not postponed till the attestation of the mutation in the revenue records". Now the question is: when was the sale in favour of Ghulam Rasul respondent effected? Sale has been defined in section 54 of the Transfer of Property Act as "A transfer of ownership in exchange for a price paid or promised or part paid and part promised." The paragraph next following the definition regarding the mode of making a sale only through a registered instrument is not relevant in the instant case. It may be noted that the evidence on the record referred to hereinabove shows that the subsequent sale in favour of Ghulam Rasul was made orally; it was reported to the Patwari by the parties thereto who had admitted the payment of consideration and the delivery of possession. These facts were duly incorporated in the Patwarils Roznamcha dated 10‑6‑1966 (Ex.D.1) as also in the mutation entered on that date (Ex.D.2). On this evidence, learned Courts below found and, in my view, rightly so that the sale in favour of Ghulam Rasul had been effected on or before 10‑6‑1966. Thus, the sale in question, in view of the legal position aforestated, had been completed or 10‑6‑1966 and not when the mutation in respect thereof was sanctioned.

7. Before concluding, the authorities cited by the learned counsel for the appellant may be examined. None of these cases is relevant to the proposition canvassed by the learned counsel for the appellant. They proceed on their own facts. In P L D 1954 B.J. 51, dispute was between the vendor and the vendees. Vendor brought a suit for declaration that the sale‑deed was fictitious as no price had in fact been paid by the vendees nor was the possession of the land delivered to them. Suit was decreed by the trial Court on the ground that the sale though made through a registered deed was without consideration. This finding was upheld by the First Appellate Court as also by the High Court in the second appeal. This case is Of no help to the appellant because in the instant case, Mst.kazia had herself approached the Patwari and told him that she had sold the suit land to Ghulam Rasul and had received Its. 400 from him as price of the land. 1976 S C M R 362 is an authority for the proposition that where physical Possession has not been taken under the sale, suit for pre‑emption brought within one year of in attestation of mutation is within limitation. Correctness of this proposition can hardly be disputed. In 1984 C L C 1274, admitted position was that the sale had taken place on the date when mutation was sanctioned. It was held that possession of the vendee before the sale was of no consequence for the purpose of calculating the period of limitation and the limitation commenced from the date of attestation of the mutation. In P L D 1978 B.J. 86, it was held that a sale made orally or through an unregistered instrument in contravention of section 54 of Transfer of Property Act was of no legal consequence and this principle applied equally to the pre‑emptor and the vendee. Similar view was taken in P L D 1981 S C (AJ&K) 103 wherein it was observed that since the Transfer of Property Act was in force in Azad J&K, a sale would be valid and completed only when sale‑deed was registered. These two later authorities, too, have no relevance as in the present case, it is not in dispute that sale could validly be made through oral transaction.

8. Upshot of the above discussion is that this appeal fails and is dismissed but no order as to costs. A.A. /M‑441/L Appeal dismissed.