2008 PLP 333 (MLD)

SYED JAMSHED ALI, J.

The judgment and decree, dated 15-11-1987 of the learned Additional District Judge, Okara have been assailed in this appeal, whereby the appeal of the appellants, vendees in a pre-emption suit, was dismissed. It arises out of the following circumstances.

2. Mst. Nazir Begum and other co-sharers in a joint khata orally sold the land in dispute in favour of the appellants vide the following transactions:-- Sr. No. No. of Mutation Date of Attestation Total Area 1. 132 22-5-1967 144 K, 11 M 2. 170 27-10-1969 10 K,4 M 3. 180 13-12-1968 19 K, 6 M 4. 181 13-12-1968 19 K, 6 M 5. 182 13-12-1968 38 K, 11 M 6. 183 13-12-1968 9 K, 13 M 7. 184 25-1-1969 15 K, 61 M The aforesaid mutations were reviewed and cancelled and a consolidated Mutation No.276 was attested on 13-10-1973. A part of it was sold by the vendees in favour of Manzoor Ahmad and Niaz Muhammad defendants Nos. 12 and 13 in the suit. The L.Rs. of Niaz Muhammad are party to this appeal as the land sold to Manzoor Ahmad was transferred by him to Niaz Muhammad. On 28-9-1974 Haji Sardar Khan, respondent No.1, deceased, now represented by his L.Rs. pre-empted the sale attested vide Mutation No.276 on the ground that he was collateral of the vendors as well as a co-sharer. The suit was contested. A number of preliminary objections were taken by the vendees-appellants including that the suit was barred by time as possession in the land in dispute had already been transferred. On merits it was claimed that the vendees appellants were also co-sharers in the land in dispute. Necessary issues were framed and the suit was tried. The learned trial Court found that the pre-emptor had a superior right of pre-emption, the suit was held to be within time and accordingly, it was decreed on 28-5-1978.

3. The vendees appellants filed an appeal which was dismissed vide judgment and decree, dated 15-11-1987 on the sole ground that on the decree sheet instead of a court-fee stamp of Rs.2 a court-fee stamp of Re. 1 was affixed.

4. The learned counsel for the appellants contends that the appeal could not have been dismissed on this ground and the appellants were entitled to an opportunity to make good deficiency of the court-fee affixed on the decree sheet under appeal before the learned First Appellate Court. In all fairness, the learned counsel for the pre-emptor conceded this legal position but stated that the suit was filed 30 years back and since only a short question is involved, this appeal may finally be disposed of by this Court on merits instead of sending it back to the learned First Appellate Court thereby involving the parties in another round of litigation. The request of the learned counsel for the pre-emptor being just and proper in the circumstances of the case, I proceeded to examine the case on merits.

5. Malik Allah Yar Khan, the learned counsel for the appellants, did not assail the finding of the learned trial Court as to the superior right of the pre-emptor but contended that even according to the averments of the plaint, 'the original oral sale transactions were made in the years, 1967, 1968 and 1969 and under the aforesaid sales the appellants had entered actual physical possession of the disputed land. Therefore, under section 30 of the Limitation Act time started running from the aforesaid dates and the suit tiled on 28-9-1974 was patently barred by time. He relied on the statement of Sardar Khan, respondent No.1, who appeared as P.W.1 and admitted that the appellants were in possession of the land since, 1969. He also relied on the recital in the mutations sanctioned in the first instance as to transfer of possession in their favour. Khasra Girdawari, Exh.D.1 was also relied upon which, reflects the change of possession in favour of the appellants in Kharif, 1971.

6. On the other hand the learned counsel for the pre-emptor submits that through the original mutation as well as through Mutation No.276 sale was made from joint khata and fraction of a joint khata was not capable of actual physical possession, the mutation of sales initially sanctioned having been set aside, the pre-emptor could legitimately maintain the pre-emption suit against the sale attested vide Mutation No.276. In support of his contentions he placed reliance on Muhammad Raft through Legal Heirs v. Nawab Din (1995 SCMR 1903) and Ghulam Sarwar v. Mazhar Ahmad (PLD 1995 SC 677).

7. I have considered the submissions made by the learned counsel for the parties. In support of his case, besides that plaintiff appeared as his own witness and examined two other witnesses. Documents Exh. P.1 to P.13 were placed on the record. One of the vendees namely Shera was examined as D. W.1. He claimed that the vendees were in possession of the land in dispute for the last about, 10 years. Khasra Girdawari Exh.D.1 was placed on the record, according to which four vendees are shown in possession of part of the disputed land. The documents produced on behalf of the pre-emptor have also been examined. Exh.P.1. is Jamabandi for the year, 1963-64 according to which the entire land of khata No.39 was in self-occupation of the owners/vendors. Exh.P2 is the pedigree-table. Exh.P.3 to Exh.P.8 are the mutations earlier sanctioned while Exh.P.9 is Mutation No.276 attested on 13-10-1973. Mutation No.293, Exh.P.10, Mutation No.179, Exh. P. 11 Mutation No.153, Exh. P.12 mutation No.290, Exh. P.13, do not relate to the controversy as to the question of limitation.

8. Perusal of the mutations initially sanctioned as well as Mutation No.276 shows that the vendors had sold the land from the un-partitioned joint khata which means that the sale was from each an every khasra number of the un-divided khata and mere possession of some of the vendees as reflected by D.1 on particular khasra numbers or the statement of the plaintiff that the respondents were in possession of some land since, 1969 cannot be accepted as possession under the sale because a fraction of a joint khata is not capable of actual physical possession and this was the view taken by the Hon'ble Supreme in the case of Muhammad Rafi, supra.

9. There is no merit in this appeal which is, accordingly, dismissed. H.B.T./S-755/L Appeal dismissed.