1999 PLP 279 (SCMR)

Advocate Supreme Court for Petitioner. Aamer Ra.za A Khan, Senior Advocate Supreme Court for petitioner. Nemo for Respondents. Date of hearing: 1st December, 1998. MUNIR A. SHEIKH, J.-.-Leave to appeal has been sought through this petition to question the legality of judgment dated 1-10-1996 of the Lahore High Court. Bahawalpur Bench through which R.S.A. No.31 of 1977/BWP filed by the petitioner against the judgments and decrees of the Courts below in a pre emption suit, has been dismissed.

2. The facts of the case in brief are that the land in dispute was sold by Umar Hayat to Noor Muhammad, respondent No.3 through oral sale about which Mutation No. 158 (Exh.Pl) was finally attested by the Revenue Officer or. 12-4-1972. On 22-5-197," the suit from which this petition has arisen was filed by Muhammad Ramzan and Mst. Began. respondents Nos.1 and 2, to pre-empt the said sale. The right of pre-emption was claimed in the ground of co- sharer ship in the Khata. During the pendency of the suit. the present petitioner Abdul Wajid who is son of vendor i.e. Umar Hayat sent a notice on 16-12-1972 (Exh. DI) to Noor Muhammad. vendee that he being the son of the vendor had right of pre-emption superior to him, therefore, was entitled to purchase the land in preference to him, therefore it should be transferred to him. In recognition of superior right of pre-emption of Wajid son of Umar Hayat, Noor Muhammad the vendee sold the land to him through Mutation No. 162 attested on 1-1-1973. The petitioner was. therefore, impleaded as party in the suit and amended plaint was filed on 11-4-1973. In the written statement filed to this amended plaint. Noor Muhammad vendee admitted that the present petitioner's right of pre emption was superior to the plaintiffs who were claiming the same on the ground of being co-sharer in the Khata.

3. The trial Court considering that the sale made in favour of the present petitioner having superior right of pre-emption qua the plaintiffs having been made after the period of limitation of one year for filing the suit by him had expired, therefore, he could not defeat the suit on that ground and the suit was decreed through judgment dated 24-3-1975 against which appeal filed by the petitioner was dismissed by the learned District Judge through judgment dated 14-3-1977. The second appeal filed by him before the High Court was also dismissed through the impugned judgment dated 1-10-1996 against which leave to appeal has been sought.

4. It may be mentioned here that during the pendency of the appeal before the High Court. it came to light that Noor Muhammad, vendee had withdrawn the pre-emption money deposited by the plaintiffs on 19-7-1976 whereas according to his case, he had already sold the land to Abdul Wajid i.e. the present petitioner.

5. The question which has been raised by the learned counsel for the petitioner in this petition was whether the petitioner as intervenor could defeat the suit of the plaintiffs whose right of pre-emption was admittedly inferior to him on account of sale made in his favour by the vendor on 1-1-1973 in recognition of his superior right of pre-emption. Learned counsel for the petitioner when questioned frankly conceded that the petitioner could succeed to defeat the suit of the plaintiffs only if it was proved that the sale made in his favour by the vendor whether during the pendency of the suit or before it was made within period of limitation prescribed by law for filing suit of pre-emption by the pre-emptor i.e., the petitioner. He. however, initially submitted that in this case, since the mutation of original sale was sanctioned on 12-4-1972, therefore, the said sale under pre-emption should be deemed to have been completed on the said date and the sale made in favour of the petitioner on 1-1-1973 was within the period of limitation of one year as prescribed under section 30 of the Pre-emption Act, 1913, as such, he could defeat the suit of the plaintiffs. In support of this mention, that the sale in such case shall be deemed to have been completed on the sanction of mutation, an attempt was made to derive benefit from the observations made in the judgment reported as Gharib Shah and others v. Zarmar Gul (PLD 1984 SC 188).

6. The attention of the learnt-3 counsel for the petitioner was called to the ~act that the reported case was not a case of intervener whereas the question of limitation in the light of section 30 of the Pre-emption Act was determined between the plaintiffs and the vendee in the said case and in the facts and circumstances of the said case. it was held that the period of limitation started running from the date of sanction of mutation not primarily because that was considered and held to be a date of completion of sale but due to the fact that under section 30 (ibid), the period of limitation in such cases was to start firstly from the date of delivery of physical possession of the land under the sale and in case the physical possession of land had not been delivered then from the date of sanction of mutation. It was keeping in view this factual background that the question of limitation was decided in the said case.

7. Learned counsel for the petitioner, however, candidly conceded that it was held in Mool Chand and others v. Ganga Jai and others (AIR 1930 Lahore 356), Mst. Sant Kaur v. Teja Singh and others (AIR 1946 (Lahore) 142), Mst. Fateh Bibi v. Ahmad Khan and 6 others (PLD 1971 Lahore 171) in which the previous two judgments of the Full Bench were thoroughly examined and Akram v. Mst. Sakina Begum and another (PLD 1984 SC 334) that in case of sale in favour of a person having right of pre-emption superior to the plaintiff during the pendency of the suit or before, the suit could only be defeated if the said sale was shown to have been made within period of limitation prescribed under the law for filing suit by such intervenor.

8. The question arises as to what would be the starting point of period of limitation in this case. In order to determine whether the sale made in favour of the petitioner was within one year from the said date. we have examined with the assistance of the learned counsel for the petitioner the mutation of sale (Exh.PI). It is revealed from the scrutiny of the same that it was entered on the report of the sale having taken place, on ~04-1971. The case was put off' for further proceedings as the District Council fee was to be paid. The statements of the parties were recorded on 22-6-1971 by the Revenue Officers in which they categorically stated that the sale had been made, the consideration had passed, and the possession changed hands i.e., the same had been delivered to the vendee. The formal order. however, for the 4anction of mutation by the Revenue Officer was passed on 12-4-1972 in which it was observed that the parties had already been examined on the said previous date and they had admitted the facts noted in the proceedings of the said date, therefore in this case the possession under the sale shall be deemed to have been delivered to the vendee on 22-6-1971 or even before that on 20-4-1971 when mutation was entered, therefore, even if counted from 22-6-1971, the limitation period for filing suit by the petitioner had expired on 22-6-1972. The notice was issued by the petitioner on 16-12-1972 to express his intention to enforce his superior right of pre-emption calling upon his father i.e. the vendor to transfer the land to him in recognition of his right who made the sale in his favour on 1-1-1973. It was rightly held by all the Courts below that the very notice was issued after the expiry of period of limitation and the sale in his favour itself was made much after the expiry of the said period.

9. It has been consistently held by all the Courts below that Umar Hayat. vendor was in physical possession of the land under the family partition, therefore, he could deliver possession to the vendee which had, in fact, been delivered to him as was stated before the revenue officer on 22-6-1971, therefore, it %%as a case where period of limitation was to start from the date of the delivery of possession of land i e. 22-6-1971 and not from the date of sanction of mutation.

10. Learned counsel for the petitioner has not been able to satisfy us that the findings of facts recorded by all the Courts below on all the material facts suffer from any misreading, misconstruction or non-reading of material pieces of evidence or that the law has not been correctly applied to the said established facts while rejecting the claim of the petitioner as intervenor to defeat the pre emption suit of the respondents on the ground of the sale having been made to him in recognition of his superior right of pre-emption within limitation.

11. For the foregoing reasons, this petition has no merits, which is accordingly dismissed and leave to appeal refused. M, B.A./A-141/S Leave refused.