1980 PLP 1753 (CLC)

(4) Whether the transaction under pre-emption is divisible? If so, its effect ?

0. P. D. (5) Whether the suit has been correctly valued for Court fee and jurisdiction and the plaint has been sufficiently stamped ? O.P.D. (6) Whether a sum of Rs. 7,500 had been fired in food faith or actually paid as the sale price of the suit land" O. P. D. (7) If Issue No. 6 is not proved, what was the market value of the suit land at the time of its sale ?

0. P. Ds. (7-A) Whether the suit is barred by time ?

0. P. D. (7-B) Whether the defendant No. 2 has effected improvements worth Rs. 2,000 over the suit land ? If so, when and with what effect?

0. P. D.

3. The learned Civil Judge decided the first five issues against the appellants-defendants and the 6th issue in their favour. In view of his finding on the 6th issue, he did not decide the 7th issue. The last two issues, namely, Issues Nos. 7-A and 7-B were also decided against the appellants. Resultantly, the learned trial Court decreed the suit on pay ment of Rs. 7,500.

4. Feeling aggrieved by the judgment and decree of the learned Civil Judge, the appellants went in appeal before an Additional District Judge but without success. They have, therefore, come up in second appeal to this Court. S. As for the right of pre-emption, learned counsel for the appel lants contended that in their plaint the respondents had claimed that right for being co-sharers in the khata of which the disputed land is a part but their claim of pro-emption was allowed not on the basis of the aforesaid qualification but on the ground that they were owners of the estate in which the land in question is situate. He maintained that since the above ground was not pressed by the respondents in their plaint, their claim could not be allowed on the basis thereof. He cited Zera Singh v. Jagta Singh and Munshi (1917 P R 83), Shah Muhammad and others v. Hyar and others (P L D 1960 Lah. 975.) and Sher Zaman v. Gut' Zaman and another (PLD 1971MadJ&K101) to support his contention.

6. In reply. learned counsel for the respondents maintained that the issue relating to the right of pre-emption involved a question of fan on which there was a concurrent finding of the two Courts below and as such that finding could not be questioned at the stage of second appeal.

7. While commenting on the plea raised by the learned counsel for the respondents, it was submitted by the learned counsel for the appel lants that since he had assailed the finding of the lower Courts on a Point of law it could be gone into by this Court in second appeal,

8. This second appeal has been preferred under section 100 of the Code of Civil Procedure which allows a second appeal on a nue5licn of law. The plea raised by the learned counsel for the appellants that the respondents' suit could not be decreed on the ground other than the fine, taken by them in the plaint involves a question of law and, -therefore, there is no bar to its being entertained and adjudicated upon in second appeal. In the circumstances, I am unable to agree with the learned counsel for the respondents that the contention, raised by the learned counsel for the appellants in regard to the right of pre-emption cannot be raised at this stage.

9. It was in paragraph 5 of their plaint that the respondents had spelt out their right of pre-eruption by alleging that they were owners of the khata in which the disputed land is located. No other qualification was pleased by them in support of their claim. The learned Civil Judge, however, allowed their claim or, the ground that they owned property in the village (estate). This, the learned trial Court bad done without any application by the respondents for amendment of the plaint so as to raise the plea of ownership of estate as an additional or substitute ground for claiming pre-emption. It was not held by the learned Civil Judge that they were co-sharers in the khata. The first appellate Court also affirmed the aforesaid finding of the trial Court, namely, that the respondents had right of pre-emption for being owners of the estate. 1n other words, even the learned Additional District Judge did not record a finding to the effect that the respondents were co-sharers. Thus, the ground on which it was concurrently held by the two Courts below that the respondents had right of pre-emption against the appellants was that they were owners of the estate although this ground had not been pleaded by the respondents in their plaint.

10. Now, I proceed to consider the authorities cited by the learned counsel for the appellants in support of his contention that since the respondents had not claimed right of preemption on the basis of owner ship of the estate they could not have the disputed land on the score of that qualification. The first case cited by him is of Zera Singh. In that case, the plaintiff sued Pre-emption by basing his right on the ground that he was a collateral of the vendor. During the trial of the suit he made an application stating that by a an oversight he has omitted to state in the plaint that pie was land-owner and vendee was not, and prayed that his plaint might be amended. This application was placed on the record but no order was passed thereon, nor was the plaint the issue relating to the right of pre-emptor or any way altered or amended. The first found in favour of the Plaintiff` on the grounds both of relationship and of his being land-owner firs the thulla. On appeal, the District Judge found that the relationship was not established but upheld the decry to court the ground of being, a proprietor firs the thulla, When the second appeal was taken to the High Court, it was ruled that since the plaint was not amended and the vender head thus no opportunity of pleadings to the amended plaint and asking for a specific issue on the nevi ground of claim put forward by the plaintiff`, the lower Courts were not justified in decree ing the suit on the new ground that the plaintiff was, anti the venders was not, at land-owner is the thulla in which the property was situate. In the case of Shah Muhammad and others tree; plaintiff had sought permission to amend the plaint so as to substitution a new basis for his suit. His request wits not allowed enter alia on the ground that right: of pre-emption being but a, predatory right, the Courts should grant but little concession to a plaintiff in such a suit. ht the ease of Sher wan it was held than the "right of pre-emption right no equity is involved" and therefore, the pre-:raptor "'cannot succeed on a ground different than the one on which the right of. prior, purchase is claimed by him". No authority to the Contrary was cited by the learned counsel for the respon dents. Therefore, fir: view of tire precedent cases referred to above 1 hold that since the respondents had riot claimed pre-emption on the ground that, they were owners on the estate, their claim for pre-emption could not be allowed on that ground.

11. As stated earlier the plea raised by the respondents in the plaint for claiming pre-emption was that they were co-sharers of the khata containing the disputed land but neither the trial court nor the first appellate court had recorded any finding in this behalf. The parties were however conscious of the question raised by the respondents by claiming the qualification of being co-sharers and had ample opportunity to produce evidence on that question. Therefore intend of remanding the case for the purpose of recording of a finding by the lower courts in regard to the aforesaid claim of the respondents I would myself examine the parties evidence and decide the matter.

12. Learned counsel for the appellants invited my attention to a copy of mutation, Exh. P. 6 which shows that before purchasing the land in dispute the respondents had purchased some land in Khatas Nos. 105, 125 and 188 in which the land in question is situate. Thus according to the said mutation, they were owners in khatas in which the disputed land falls. There is no evidence to the contrary. Therefore, relying on Exh. P. 6, I hold that the respondents are co-sharer s of the khas contain ing the land in question.

13. As regards the appellants, it is not their case that they are also no-sharers in the aforesaid khatas. It. is, however, not disputed that appellant No. 2, Muhammad Ramzan is son of the, vendor, Mst. Majeedan. Therefore, according to the provisions of section 15 of the Punjab Pre-emption Act, 1913, he has a superior right of pre-emption as compared to the respondents who have been found to be the co-sharers in the khatas containing the land in dispute. The other appellant, Murid Hussain, however, does not possess any qualification equal or superior to that of the respondents. In view of this, it was contended by the learned counsel for the appellants that since Muhammad Ramzan had purchased a specific share in the disputed land, namely, 1/3rd share, the suit would fail to the extent of his share. In other words, his plea was that the sale in dispute was divisible and, therefore, Muhammad Ramzan would not be hit by the doctrine of sinker. According to this doctrine, if a person possessing one of the qualifications for pre-empting a sale purchases any property together with a person having none of those qualifications or having a qualification inferior to the one possessed by the former, the former also, if the sale is indivisible, sinks to the position of the latte and any person pre-empting the sale on the basis of a qualification superior to the qualification, if any, possessed by the latter, though inferior to that of the former, will take the property in preference to both of them ; but if the sale is divisible, the pre-emptor will succeed only to the extent of the share of the latter.

14. While replying to the above arguments of the learned counsel for tire appellants, it was urged by the learned counsel for the respondents that the sale was not divisible because there eras nothing to show as to how the two appellants had shared the sale price. He, therefore, con tented that appellants' case eminently attracted the doctrine of sinker with the result that the respondents, being co-sharers of the land in dispute would be entitled to get the entire land in preference to the appellants because both of them did not possess the said qualification or a superior one.

15. As for the divisibility of the sale in dispute it can be gathered from copy of mutation, Exh. P. 3 that Muhammad Ramzan appellant had purchased 1/3rd share in the land in question and rest of it was purchased by Murid Hussain appellant. The total price paid by them was Rs. 7,

500. There is no indication as to the shares in which they had contributed towards the sale price. Learned counsel for the appellants contended that as their shares in the land were known, it would be presumed that they had paid the price in proportion to their shares in the land. In this connection, he relied on the opinion delivered by a learned Single Judge of the High Court of Azad Jammu & Kashmir in Ahmed Din v. Siraj ud-Din and others (PLD1974Azad J&K 26). On the other hand, it was maintained by learned counsel for the respondents that since the price paid by each appellant was not known, the mere fact that their respective share in the land were mentioned in the copy of mutation Exh. P. 3 did not make the sale divisible. The authority cited by bind to support his plea is Abdullah and 3 others v. Abdul Karim and others (PLD1968SC 140) which is a case unanimously decided by three eminent Judges of the Supreme Court.

16. The view expressed by the High Court of Azad Jammu & Kashmir in the case of Ahmed Din is as follows :-- "If specific fields or plots are specifically sold to separate persons through a single sale-recd, then it could be said with some justification that the price by one may not be the carne as paid by the other because the quality or utility of each field may vary from each other. For instance, a field or plot which fell to the share of A being nearer to his house or say being fed by a canal or being of a superior soil, could be priced more than the one that fell to B which is barren or far away from his house. In such a case the Court cannot protect the interests of such co-vendees who have a right of pre-emption equal to that of the plaintiff because it cannot reasonably ascertain the price paid by them. So on tire basis of the indivisibility of the sale the suit is decreed against them too. But in a case like the present one where shams are fractionally specified such as 1/3rd, they are co-sharers in the strictest sense one gets entitled to 1/3rd in each parcel. In such a case, it can be presumed that they made a proportionate contribution. In A I R 1928 Lah 784, the Division Bench seems to have agreed that where land sold to each of the vendees is of the same quality--as in the present case-price paid by each is a matter of calculation and may be deemed to be proportionate to the share to be taken by each one of them." As against this, it was ruled by their Lordships of the Supreme Court in the case of Abdullah and 3 others that there can be no presumption as to the divisibility of the transaction merely on the basis of the recital in the deed that the vendees took the property in specified shares if the con sideration was mentioned as a lump sum." While making these observa tions, their Lordships referred, with approval, to the view taken Maghi v. Narain and others (1914 P R 18) and Rum Nath and others v. Badri Narain and others (I L R 19 All. 144) In the case of Maghi, which relates to a pre-emption matter, it was held by a Division Bench of the High Court at Lahore that "where the purchase money for a sale is paid in a lump sum without specification of the amounts paid by each of the vendees, the transaction must be re garded as indivisible, though the shares to be taken by the various vendees may have been specified in the deed." In the case of Ran, Nath and others the sale-deed revealed "only the share sold to each of the five vendees but gave no specification of the proportion in which the purchase money was paid by the respective vendees. The purchase money, according to the deed, as in the present case, was stated as a lump sum skull for the whole area sold. A Full Bench of the Allababad High Court, I therefore, re minded the case for determination of the true price, paid by each vendee. In the instant case a separate issue (Issue No. 4) was struck to find out if the sale was divisible. Thus, the appellants had ample opportunity to demonstrate the shares in which they had paid the sale price but they did not produce any evidence in this behalf. I, therefore, with respect, follow the law laid down in case of Abdullah and 3 others and hold that since there is nothing to indicate the price paid by each appellant, the sale in favour of the appellants is not divisible.

17. What emerges from the above discussion is that the case of the appellants is hit by the doctrine of sinker. As a result, Muhammad Ramzan appellant who, being the son of the vendor, was possessed of a qualification better than that of the respondents, that is, ownership of land in the khata containing the disputed land, would go down to the position of the other appellant, namely, Murid Hussain, who does not possess a qualification superior or equal to the qualification enjoyed by the respon dents. The respondents, would, therefore, have a right of pre-emption against the appellants.

18. The other finding which has been questioned before me is the one on the issue of limitation (Issue No. 7-A). The sale involved in the case before me was an oral one. It was followed by a mutation. The mutation was entered on the 8th November, 1971, with a report by the Patwari, which is based on a joint statement made to him by the parties to the sale. The mutation was, however, attested on the 15th November, 1971. Learned counsel for the appellants contended that the appellants had taken possession of the disputed land, under the said sale, before the mutation was entered and, therefore, the period of limitation would be calculated from the date of entry of the mutation and not from the date of attestation of the mutation. He relied on section 30 of the Punjab Pre-emption Act, 1913, and a case reported as Udmi v. Ram Gopal and others (A I R 1919 Lah. 426) to support his arguments.

19. On the other hand, learned counsel for the respondents con tended that the sale had concluded on 17th November, 1971 with the attestation of the mutation and, therefore, the question of the appellant having taken possession of the land, under the sale, before the date of the sanction of the mutation did not arise. It was also maintained by him that the mere report of the Patwari regarding the delivery of possession was not enough to justify a finding that the appellants had taken possession of the disputed land on or before the date of the making of the report. In this connection, he drew my attention to Thakur Singh v. Karam Singh and another (A I R 1925 Lah. 165).

20. In the case of Udmi cited by the learned counsel for the appel lants, it was reported by the patwari that the vendor had placed the vendee in possession of the land sold. At the time of the sale of the land it was in actual possession of the vendor and was free of crop. It was, therefore, held that the vendee had taken possession of the land as stated in the report of the palwari.

21. In the case of Thakur Singh, relied upon by the learned counsel for the respondents, the sale involved was oral. It was made on 15th May, 1919. The mutation in regard thereto was attested on 27th April, 1920. The suit for pre-emption was brought on 10th February, 1921. It was contended by the vendees that they had taken possession of the disputed land in November, 1919, i.e., before the attestation of the muta tion and, therefore, the suit was time barred. This plea had found favour with the trial Court and the suit was, therefore, dismissed. The judg ment and decree of the first Court was also affirmed by the District Judge with the following observations :

"In the case of uncultivated land physical possession may be taken even symbolically. I think the possession of the vendees before December, 1920 may safely be taken to be proved by the report on the mutation entered in November, 1920 and the entry as to their possession in Khasra Girdawari of Rabi 1920-21." When the matter went before to the High Court, the finding of the two Courts below was reversed for the following reasons, and the plaintiff's suit was decreed :-- "Now the areas sold at the time of the sale were admittedly in the possession of a mortgagee and were in the cultivating possession of one Amian, a tenant under the mortgagee. Consequently at the time of the sale the property sold was incapable of being taken into physical possession by the vendees. The mortgage on the areas sold was redeemed by the vendees on the 13th July, 1919, but the physical possession of the and remained with the tenant Amian who gathered the Kharif crop, some time in October or November of that year. In the following harvest, i.e. Rabi 1920, the land is entered as in the possession of the vendees but inasmuch as it remained uncultivated in that year it is not clear that the vendees were even at that date in physical possession. If the vendees had even prepared the land for a crop the entry in the record would have been traddadi and not khali. The learned District Judge say that in the case of uncultivated land physical possession may be taken even symbolically. This is no doubt correct but he has not stated, nor is there any evidence on the record, what symbols were employed in this case. The vendees might have 'taken possession by driving a plough through the land or by fencing it round but there is no evidence that they adopted any such method. The law insists on physical possession because physi cal possession is visible to all concerned. It is a notice to all would-be pre-emptors that a change has occurred in the enjoy ment and possession of the land in question and puts them to inquiry whether there has been a sale. The mere reporting to the patwari that the vendor has relinquished possession and that the vendee has assumed possession is not proof that there was a giving and taking of physical possession within the meaning of section 30 of the Pre-emption Act. For these reasons I hold it unproved that physical possession of the land in suit under the sale was taken by the vendees before Rabi 1920. That being so the terminus a quo for the calcu lation of limitation is the date of the attestation of the muta tion, namely, the 27th April, 1920 and, therefore, the suits were brought within time."

22. It would-therefore, appear that in the case of Udmi there was evidence other than the report of the patwari to enable the Courts to decide the question of limitation. Had this not blest so, it could not have been observed in that case that at the time of its sale the land was in actual possession of the vendor and was free of crop. As against this, in the instant case there is no evidence except the report of the patwari. appearing in the mutation (copy Exh. P. 3), in regard to the delivery of possession to the appellants. The facts of the case under report and that of the one in hand are therefore, not identical and consequently the appellants can not take the benefit of the cited case. Even if Udmi's case had been distinguishable as aforesaid I would have with respect, expressed my inability to sharp the view that the report of the patwari regarding change of possession, which is made by him in routine while entering a mutation of sale by itself, proves that physical possession had been delivered to the vendee.

23. Besides the reasons given in the case of Thakur Singh, I have some other reasons for taking the view that the report of the patwari, repro ducing the statements of the parties in regard to the delivery of possession, cannot constitute a safe and valid basis for a finding to the effect that the change of possession, had, in fact, taken place as indicated in their statements. It is not infrequently drat the vendor and the vendee agree to mention fictitious sale price in the mutation with a view to defeating preemptive rights but their statements in this behalf are allowed to be challenged by the pre-emptor. This is evident from the provisions of section 25 of the Punjab Pre-emption Act, 1913. When a dispute regard ing the payment of be pre-emptor, the vendee is called upon to prove that the sale price mentioned in the mutation was actually paid or fixed in good faith and if the fails to do so, the pre-emptor is entitled to get the land on payment of its market value as fixed by the Court. If in the case of sale price the version of the parties to a sale as reflected in the mutation is not accepted unless it is substantiated by positive evidence there is no justification for presuming that their statements before the patwari in regard to the delivery of possession represent the correct position.

24. The report of the patwari regarding change of possession, when made by him in pursuance of the statements of the parties to a sale is comparable to a recital in the sale-deed that the possession of land involved therein has been delivered to the vendee. It was, however, ruled in Dharam Singh v. Kirpal Singh and others (A I R 1923 Lah. 31) that 'a formal recital as tot the delivery of possession, which is :o be found nearly in every sale-deed, would be a very weak piece of evidence even between the parties to the deed, but as against" a stranger it is no evidence at all". Similar observations were made in Shiridinisdas Bavri v. Meherbal and others (39 I C 627). In view of these authorities, I hold that like the recital in the sale-deed in respect of delivery of possession the report of the patwari, founded on1 the statements of the parties regarding change of possession; has little, evidentiary value as against a pre-emptor.

25. A bare reading of section 30 of the Punjab Pre-emption Act, 1913 together with Artice 10 of the Limitation Act, 1908 would show the it was intended by the Legislature that in the case of a suit for pre-emption, the period of limitation should run from the taking place of such developments touching the sale of land ore other property as would give a clear notice thereof to the prospective pre-emptors so that if any of them wants to pre-empt the sale, he may do so within one year of becoming aware of the sale. These developments, as enumerated in the section 30 read with Article 10, are three, namely, registration of the sale deed incorporating the sale, if it is made in writing ; attestation of mutation of sale, if the sale is oral ; and taking of physical possession under the sale. It is too well known that the registration of a document is notice to the whole world. Similarly, the attestation of mutation is widely publicised inasmuch as it is attested in .the common assembly. Likewise, the delivery of physical possession to the vendor, under the sale, as envisaged by the framers of law, is the one which is publicly demonstrated so that it serves as "a clear notice to the whole world that he had purchased the land" (see Kamal Khan v. Sikandar Khan (P L D 1951 Pesh. 57). The physical possession of landed property cannot pass from one person to another unless some practical and visible steps are taken to effect the change of possession. The steps so taken should therefore, be spelt out by a vendee, by producing adequate and convincing evidence, before he can succeed in defeating the pre emptor on the ground that the latter had not pre-empted the save within one year of his having obtained physical possession under the sale. He cannot get away just on the score of the report of the patwari regarding the delivery of possession, especially when such report is based on the statements of one or more parties to the sale and not on his (patwari's) personal knowledge or local inspection. To hold otherwise, would amount to permitting a vendee to defeat pre-emptive rights by having such a report recorded by the patwari and then delaying the attestation of mutation for one year thereafter, so that the period of limitation should expire by the time the mutation is sanctioned. Such tactics, obviously, offend against the letter and spirit of the provisions of section 30 of the Pre-emption Act read with Article 10 of the Limitation Act and cannot, therefore, be countenanced.

26. In the case before me there is no evidence except the aforesaid report of the patwari, regarding delivery of possession, which was made by him while entering mutation in respect of the sale in dispute. It does not disclose as to whether the possession alleged to have been secured by the appellant was physical or symbolical nor there is any evidence indi cating the precise manner in which they had taken possession in one form or the other. It was not stated by any of the witnesses, even in general terms that possession of the disputed land had been obtained by the appellants before the mutation was attested. The appellants did not examine the vendor, Mst. Majeedan to support their plea. One of the ap pellants entered the witness-box but he too did not make any statement as to when the possession was taken by them. The most relevant evidence on the question of possession was the Jamabandi or Khasra Girdawari but no copy of the Jamabandi or Khasra Girdawari was produced to show that the appellants had taken physical possession of the disputed land before the mutation was entered. The Roznamcha of the patwari was another rele vant document but its copy was also not placed on the record. In the circumstances, the appellants cannot achieve the desired result merely on the basis of the report of the patwari.

27. In view of what has gone above, I agree with the two Courts below that the appellants have failed to establish that they took physical possession of the land under the sale in dispute before the mutation relat ing to the said sale was attested. It is not disputed that the respondents had filed the suit within one year of the sanction of the mutation. The lower Courts' concurrent finding on the issue of limitation is, therefore, unexceptionable.

28. No other point was raised by the learned counsel for the appel lants.

29. The appeal, therefore, fails and is dismissed with costs. S.Q Appeal dismissed,