L D 1987 Lahore 176 (PLP)

Mst. Bibi, respondent No. 1, filed a suit for possession through pre emption of a sale of 35 Kanals of agricultural land, being the 2800/5760 share of a joint Khata No. 10/10 measuring 72 Kanals in Chak No. 319/H. R. Tehsil Fortabbas District Bahawalnagar, which had been affected in favour of 116 vendees by means of a registered sale‑deed dated 31‑5‑1980 for an ostensible consideration of Rs. 50,

000. She based her right on the ground of being a Pattidar and an owner of the estate. Vendees denied her claim and contested the suit by raising a number of pleas which led to the framing of a total of 8 issues for trial, the 9th being that of relief. After recording the desired evidence of the parties, learned trial Judge concluded that the plaintiff had a superior right of pre‑emption on account of her being an owner of the estate and since, excepting three of the vendees, the others did not possess any right of pre‑emption at all and the sale was indivisible, therefore, all the vendees had lost their right to resist the suit of the plaintiff. The ostensible sale price of Rs. 50,000 was admitted on behalf of the plaintiff to be correct and by repelling the objections of the vendees the trial Court decreed the suit on 24‑9‑1985 in favour of the plaintiff.

2. An appeal thereagainst filed by Only two out of 116 vendees was dismissed by a learned Additional District Judge on 22‑12‑1986 by affirming the findings and decree of the trial Court. They have now come up to this Court on revision.

3. Learned counsel argues that since the respective vendees had even raised some constructions on the land in dispute, therefore, it was obvious that each one of them may have paid up his part of the consideration to take possession of the specified share of the land so that not only the conclusion of the Courts below with regard to the sale being indivisible is incorrect but also their findings that the suit filed on 28‑5‑1981 was within time from the date of registration of the sale‑deed, is not sustainable for the reason that the vendees had entered into possession of their respective bits of the land in suit some six months before the registration of the sale‑deed. There is no merit in either of these contentions. Even though respective shares of the vendees are specified in the sale‑deed (Exh. P. 1), the con sideration for the entire sale is mentioned in lump sum as Rs. 50,000 stated to have already been received by the vendor. Mere specification of shares in the land got by the vendees cannot lead to a conclusion that the sale may be divisible. In Abdullah and 3 others v. Abdul Karim and, others (1) it was held :‑ "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 consideration was mentioned as a lump sum." The two Courts below have rightly held the sale to be indivisible. Since the sale in this case relates to a fractional share of a joint holding, i therefore, it cannot be regarded a tangible entity to be capable of being physically possessed. This point was examined by me in Wali Muhammad v. Dost Muhammad (2) and it was held that a fractional share of a joint Khata is not a tangible property to be capable of being physically possessed. Hence, under Article 10 of the Limitation Act, the date of registration of the sale‑deed has to be sine qua non for purposes of limitation. Conten tions of the learned counsel are accordingly repelled. (1) P L D 1968 S C 140 (2) 1986 C L C 1220

4. In the end, learned counsel also argued that since the petitioners had urged in their written statement that the real sale price was not Rs. 50,000 but it actually was Rs. 2,84,000, therefore, an issue on the point was necessary to have been framed by the trial Court. This contention was also raised in the appeal below but was repelled with the observation that the vendees had not evinced any interest to have an issue struck thereabout during the four years of the pendency of the suit in the trial Court, therefore, they will be considered to have abandoned it. Learned counsel has admitted before me that necessary evidence has been led by the vendees in the trial Court even in absence of an issue, therefore, I do not see how the failure of a formal issue on the point may have caused prejudice to the petitioners. The two Courts below have considered their evidence with regard to the sale price and have rejected it on good reasons. Even I am not persuaded to accept the prepostrous assertion that in order to save a few thousand rupees towards the expenses of registration and purchase of stamp‑paper on the alleged value, the vendees may have put a sum of Rs. 2,34,000 at stake. There is no reason to differ with the concurrent findings of the two Courts below on this question of fact, particularly because it is not possible to confer on the vendees a benefit of their own fraud, as is alleged by them. Contents of the sale‑deed of ' the vendees have to prevail under section 91 of the Evidence Act. Hence, this contention is also fails.

5. There is no case made out for exercise of revisional jurisdiction., Civil Revision is accordingly dismissed in limine. A. A./D‑1/1. Revision dismissed.