2020 PLP 445 (SCMR)

AMIN-UD-DIN KHAN, J.

This Court, vide order dated 12.03.2010 in Civil Petition for Leave to Appeal No.1792-L of 2009, granted leave. For ease of reference the Leave Granting Order is reproduced herein below: "Leave is inter-alia granted to the petitioner to consider if all the courts below have given the findings on the superior right of the respondent/pre-emptor on the proper reading of evidence on the record and as per law, particularly, when the property in question has been urbanized and therefore, revenue record has lost its efficacy, besides if the findings of the courts on the issue of Talbs are extraneous to the evidence on record."

2. Briefly the facts of the present lis are that the Appellants are the Vendees/Defendants against whom a Suit for Pre-emption was filed by the present Respondent. The same was initially dismissed by the learned Trial Court vide judgment and decree dated 13.12.2006 on the basis that the Plaintiff could not prove the Talbs in accordance with law. However, in appeal, the learned Appellate Court, vide judgment and decree dated 15.03.2007, reversed the same and the Suit was decreed which was assailed through Civil Revision bearing No.974 of 2007 before the learned Lahore High Court by the present Appellants, which culminated into dismissal of the Civil Revision vide judgment dated 25.06.2009; hence, the instant Civil Appeal (after leave of the Court).

3. The claim of Respondent/Plaintiff regarding his right to pre-emption rests on the grounds that he is Shareek-e-Khewat with the Vendor and that his property, i.e. shop, is adjacent to the Suit shop. This Court granted leave for considering these two questions; firstly, whether on the basis of joint ownership recorded in the Revenue Records vis-a-vis the Suit property, which was urbanized, a right of pre-emption can be claimed; and secondly, if the findings of the two learned Courts below upon the issue of Talbs are in accordance with the evidence and the available record.

4. First, we will consider whether the Respondent/Plaintiff can claim the right of pre-emption on the basis of Revenue Records. We are clear in our mind that the Suit property was constructed and urbanized, and it has also been admitted between the parties that the Suit property, as well as the property on the basis of which the Respondent/Plaintiff claims the right of pre-emption, are commercial properties having property number allocated by the Excise and Taxation Department. Therefore, no benefit of Revenue Records, even if ownership of both the parties would have been recorded in the same Khewat, would be given to the Respondent/Plaintiff for grant of a decree of pre-emption on the basis of Shafi-e-Shareek in the light of section 3 (before its amendment in 2019) read with section 56(d) of the Land Revenue Act, 1967. Where co-ownership could not be established on the basis of Revenue Records, the question arises as to whether the properties are physically adjacent to one another. The Respondent/Plaintiff has entered appearance as PW-5 and his witness, namely, Muhammad Saghir Hussain appeared as PW-7, who stated that the shop of the Respondent/Plaintiff and the Suit shop are not adjacent to one another.

5. Furthermore, it has come to our notice while perusing the Revenue Records that the records presented before us are out-dated, and hence, do not substantiate the claim of pre-emption at the time of making the Talb, the filing of the Suit and deciding the same, as required by law. The impugned Sale Deed (Exh.P-4) in favour of the Appellants/Vendees refers to Khewat No.669 but this Khewat number is referred to in accordance with the Register Haqdaran-e-Zamine (for brevity in the later part it will be mentioned as "Register") of the year 1993-94, and admittedly, the sale took place through registered Sale Deed dated 04.12.1999; therefore, at the time of impugned sale, the Register Haqdaran-e-Zamine of the year 1993-94 was not current Register, as a new Register is prepared after every four years as per law. The Respondent/Plaintiff has produced an abstract from Register Haqdaran-e-Zamine of the year 1993-94 with regard to Khewat No.669 as Ex.P-9 to show his ownership on the basis of a Mutation bearing No.4798 attested on 21.09.1999 claiming that he is owner of one Marla and five Sarsai in Khasra No.401. The Appellants/Vendees have produced an abstract from Register Haqdaran-e-Zamine of the year 2001-2002 as Ex.D-2 which shows that Mutation bearing No.5609 on the basis of impugned registered Sale Deed in their favour was attested on 30.10.2006 and they are owners in Khewat No.696 in Khasra No.396 in the Suit property measuring 2-3/4 Sarsai. In this view of the matter, it is clear and obvious that at the time of sale, the Respondent/Plaintiff and the Vendor were not joint owners in one Khewat. The reference of previous Khewat number of the year 1993-94 in the Sale Deed, etc. does not give right to the Respondent/Plaintiff to take the benefit of and claim a joint ownership with the Vendor in the Khewat. Even in the Court, a specific question was posed by us to the learned counsel for the Respondent/Plaintiff, as to whether he claims full ownership of the shop in his possession on the basis of which he is claiming the right of pre-emption upon the Suit shop? The counsel's response was that Respondent/Plaintiff is full owner of the shop owned by him. Further question was posed as to whether he admits that the Appellants/Vendees are full owners of the shop they have purchased through the impugned Sale Deed. He stated in the affirmative that the Appellants/Vendees are full owner of the Suit shop. In this eventuality, when the Respondent/Plaintiff is full owner of shop in his possession and not a shareholder in the said shop with the alleged other shareholders of the Khewat recorded in the Revenue Records and admits that the Appellants/Vendees to be full owners of their purchased Suit shop, then we do not see as to how he can take benefit of any entry in the Revenue Records showing the Appellants/Vendors and the Pre-emptor owners in one Khewat.

6. We have noted supra even in the Revenue Records of the impugned Sale Deed that the Respondent/Plaintiff and the Vendor/Vendees are not joint owners recorded in one Khewat as the Respondent/Plaintiff is owner of Khewat No.669 whereas after implementation of the impugned Sale Deed in the Revenue Records the Appellant/Vendees were recorded owners in Khewat No.696. We have even gone through the Sale Deed on the basis of which the Respondent/Plaintiff has purchased the property in question; the copy of the same was produced as Exh.P-5, which does not even contain reference of the Revenue Records.

7. In this view of the matter, the Respondent/Plaintiff was required to prove his right of pre-emption at the time of sale, at the time of filing of the Suit, and at the time of passing of the decree. The supra discussion leads us to conclude that even the Respondent/Plaintiff was not recorded in the Revenue Records as joint owner in the Khewat where the Suit property is situated at the time of sale, the filing of the Suit and the decree. In this view, the findings of the learned Courts below are absolutely against the law and on Issue No.6, the same are reversed. It is held that the Respondent/Plaintiff has failed to prove his right of pre-emption.

8. Furthermore, the impugned sale is through registered Sale Deed dated 04.12.1999 and the Plaintiff/Respondent claims to have gained knowledge on 21.03.2000. He has not disputed the issuance of notice under Section 31 of the Punjab Pre-emption Act, 1991 (Act of 1991) by the Registrar in the pleadings as well as when he appeared as his own witness. The view taken by the learned Trial Court disregards section 31 of the Act of 1991 as well as the law interpreted by the Lahore High Court in a case reported as Amir Abdullah and others v. Muhammad Bukhsh (2006 CLC 200) as well as of this Court reported as Mian Asif Islam v. Mian Muhammad Asif and others (PLD 2001 SC 499) and Muhammad Ramzan v. Lal Khan (1995 SCMR 1510). We declare in the light of provisions of section 31 of the Act of 1991 read with Article 129 of the Qanun-e-Shahadat Order, 1984, that the Plaintiff/Respondent would be deemed to have gained knowledge two weeks after registration of sale. Therefore, we find that the Plaintiff/Respondent's claim in his pleadings that he gained knowledge on 21.03.2000 about the sale is not substantiated and the presumption of law is that this is not the first time that he gained knowledge of sale on that date.

9. Plaintiff/Respondent also failed to produce one of the alleged two witnesses of notice of Talb-i-Ishhad, therefore, in our view he failed to prove Talb-i-Ishhad. Reliance can be placed upon the judgment of this Court reported as Mst. Nusrat Bibi v. Nazir Akhtar (2015 SCMR 808).

10. In these circumstances, we allow the titled Civil Appeal and set aside the judgments and decrees of the two learned Courts below. The result would be that the Suit for Pre-emption filed by the Plaintiff/ Respondent shall stand dismissed with costs throughout. MWA/B-2/SC Appeal allowed.