1995 PLP 1857 (CLC)

‑‑‑‑S. 13‑‑‑Ci~l Procedure Code (V of 1908), S. 115‑‑‑Compliance of requirements of Talbs‑‑‑Defendant could not point out any defect in conclusions arrived at by two Courts below by holding that compliance of provision. of S. 13 ‑ of the Act regarding Talbs had been made properly‑‑‑No interference with conclusions of Courts below was warranted in circumstances . Rustam Khan Kundi for Petitioner. Muhammad Ayaz Khan Qusuria for Respondents. Date of hearing: 13th October, 1994. The petitioner Imtiaz Ahmad, the defendant (mortgagee/transferee) assailed the concurrent findings of the two Courts below whereby a pre emption suit filed against him by Haji Muhammad Ramzan respondent No.1 was decreed in his favour.

2. The facts in brief of the case are that the defendants Nos.2 and 3 i.e. Mst. Fatima and Abdur Rehman have transferred the disputed property, the plot situated in the city of D.I. Khan to the defendant No.1 Imtiaz Ahmad through a registered mortgage deed dated 22‑1‑1992 for Rs.30,

000. The plaintiff instituted the present suit by alleging that transaction is not of mortgage but that is of sale and is pre‑emptible and that the parties to the transaction (vendors and vendees) in order to defeat his right of pre‑emption has given the colour of mortgage. The suit was contested and‑ as a result of the pleadings of the parties several issues were framed, the evidence was led pro and contra and that the learned trial Court held the transaction as of sale and having been found the plaintiff being contiguous owner having a right of pre emption and also holding the transaction being a sale and not mortgage granted a decree in favour of the plaintiff. The appeal of the defendant petitioner also met the same fate now approach this Court through the instant revision petition.

3. I have heard the learned counsel for the parties and perused the record.

4. The learned counsel for the petitioner contended that (i) plaintiff has failed to prove that the transaction is a sale; (ii) that 'under section 5 of the N‑W.F.P. pre‑emption Act, 1987 i.e. only the alienation which purported to be other than the sale can be held as a sale and as the mortgage is not alienation and thus is not covered by section 5(2) of the Act; (iii) that the plaintiff has not beets able to prove that he has made the demands in accordance with the requirement of law. With regard to the first objection if a look is made at the transfer deed ostensibly it has been described as mortgage deed with certain conditions which are‑ (i) that the mortgage is for unlimited period; (ii) that the mortgage is with the delitery of possession; (iii) that the mortgagee is entitled to make any improvement in the property and cost of improvement will be paid alongwith the mortgage . (iv) that the property is mortgaged with all its rights of ownership which are external and internal with the words used therein in the deed. Furthermore, it is in the evidence that the defendant has made certain improvements in the property and was going to make further improvements but the record of the trial Court show that an application for injunction restraining the defendant from making construction was submitted and status quo order was issued. It is in the evidence of the defendant that he has made certain improvements in the property by constructing a wall and an improvement in the tune up to Rs.5,000 had been claimed. It is also in the evidence that the property in dispute was in the shape of a plot and was purchased for purpose of construction of a residential house. The mortgage amount had been shown as Rs.30,000 and the trial Court issued a .commission and the Commissioner also assessed the value of the property including the wall as Rs.33,

000. All these factors; (ii) the unlimited period for which the mortgage has been created; (ii) the amount which is equal to the price of the property; (iii) the burden which has been imposed upon the mortgagor i.e. the mortgagee is at liberty to make any land of improvement by way of construction etc. and the mortgagor would be under obligation to discharge the same and the dealing of the defendant‑mortgagee with the property i.e. lie was f going t6 construct a residential house over the same all are pointer towards the fact that the conclusion arrived at by the two Courts below holding the transaction as sale is not the one which can be said that the same (conclusion arrived at) is the result of an illegality or an irregularity or misreading of facts and the two Courts below have rightly held that the tests as mentioned above laid by this Court in a case reported as Shaukat Khan and others v. Khawaja Muhammad Khan and another (PLD 1959 (W.P.) Peshawar 178) have been fulfilled. The other objection of the learned counsel with regard to the meaning of alienation is also not tenable. The word alienation has not been defined in the N.‑W.F.P. Pre‑emption Act, 1987 and then in such an eventuality the course will be had to the other statutes and to the plain dictionary meaning of the word alienation in order to find out its true import. In the Punjab Alienation of Land Act, 1900 the expression "permanent alienation" has been defined as to include sales, exchanges, gifts, wills and grant of occupancy rights and while dealing with the mortgage etc. started from section 6 of the Act ibid that part has been headed with the word temporary alienation of land. So according to the said Act the alienation is of two types one is permanent and the other is temporary and the latter includes the mortgage and specially usufructuary mortgage, which ‑is in the instant case, and also claimed by the learned counsel for the petitioner to be as such i.e. usufructuary mortgage. In the Legal Thesaurus by William C. Burton the alienation of property means conveyance. According to the Words and Phrases Legally Defined, Volume LA‑C by Butterworths (Publishers) the alienation implies a transaction by which property is given to another person. Even otherwise the plain dictionary meaning of word alienation is transmission, transference. All this and specially with a reference to the Punjab Alienation of Land Act shows that the alienation has not been restricted only to permanent transfer which is in the shape of the gifts etc. but also extends in its meaning to .the transfer which is temporary e.g. mortgage. In the relevant provision of the Pre‑emption Act the word alienation is not qualified with any pre or post fixed words i.e. temporary or permanent then it would be taken for both. This is also the intention of the legislature by giving this power to Court of holding an alienation as sale which has not been shown as sale in order to prevent the defeating the purpose and intention of law of pre‑emption by adopting any such device. The Authority referred to above given under the Act of 1950, though the point (alienation include mortgage or not) was not directly in issue but laying down certain tests for treating a mortgage as sale has impliedly considered mortgage as alienation within the meaning of section 4 of the Act of 1950.

5. The learned counsel for the petitioner could not point out any defect iii the conclusion arrived at by the two Courts below by holding that compliance of the provision of section 1.3 of the act regarding Talbs have been made properly. Thus in consequence bf the above discussion it is held that the transaction was a sale covered by the provisions of section 5(2) of the Act. Resultantly this revision petition fails and is dismissed as such. The parties are left to bear their own costs. AA./1806/P Revision dismissed.