1987 PLP 1 (CLC)

(i) That the learned Assistant Commissioner should have framed an issue on the question of limitation and should have provided an opportunity to the parties to lead evidence being mixed question of facts and law; (11) That there was no reliable evidence on record, on the basis of which, it could have been concluded that there was any custom in village Norak that the sale of Lass Aab involves the sale of land; and (iii) That the learned Courts below have ignored the mutation entries in favour of respondent No.l which related to 3 Lass Aab only and not the land. On the other hand, Mr. Muhammad Aslam Chishti learned counsel for respondent No.l has contended as follows:‑ (i) That in terms of section 4(2) of the Civil Procedure (Special Provisions), Ordinance, 1968 (hereinafter referred to as the 'Ordinance' the learned Assistant Commissioner was obliged to decide the question of limitation himself and that there was no requirement to frame a formal issue: (ii) That there was evidence before the learned Courts below, on the basis of which, the question of limitation and the question of custom could have been decided; (iii) That since the learned Assistant Commissioner has relied upon the petitioner's father statement, the petitioner claiming through his father cannot have a better right; and (iv) That the pre‑emotion suit could not have been filed by respondent No. 1, if the subject‑matter of the sale was not land.

3. Adverting to the first contention of Mr. Khalid Malik that the learned Assistant Commissioner should have framed an issue on the question of limitation and should have provided an opportunity to the parties to lead evidence, the question of limitation being mixed question of facts and law, it may be observed that he has referred to the following cases: ‑ (i) Fathuddin v. Zarshad and another, reported in 1973 S C M R 248, in which, the Honourable Supreme Court of Pakistan while declining leave observed that under Article 120 of the first schedule to the Limitation Act, the time begins to run from the date when right to sue accrues and the right to sue for a declaration that a gift is void and ineffective on the ground of fraud, accrues from the,date of discovery of fraud. (ii) Muhammad Umran v. Malik Aman and others reported in 1979 SCMR

481. In the above case, the Honourable Supreme Court of Pakistan while declining leave to appeal against the order of the Peshawar High Court observed with reference to Articles 142 and 144 of the first schedule to the Limitation Act, that it is for the defendant to prove the adverse possession and how his title was perfected and the plaintiff's suit could not have been dismissed as time barred for not showing in his plaint the date from which, he was dispossessed by the defendant.

4. In our view, the above cases have no relevance to the point in issue, inasmuch as the validity of a gift on the ground of fraud is not involved, nor the question of adverse possession is involved. The basic question is as to whether, the learned Assistant Commissioner was obliged to frame an issue on the question of limitation. In this regard it may be pertinent to refer to subsection (2) of section 4 of the Ordinance, which provides that a dispute shall not be referred to a Tribunal, if a Civil suit in respect thereof would be barred by the provisions of the Limitation Act 1908. There is no requirement under the above section obliging the learned Assistant Commissioner to frame an issue on the question of limitation. However, Mr. Khalid Malik has referred to subsection (1) of section 13 of the Ordinance, which provides that subject to the provisions of the Ordinance, a decree or order passed by the Deputy Commissioner shall have the same force and effect as if it were a decree or order passed by a competent civil Court and shall be enforced by the Deputy Commissioner in the same manner as such decree or order would have been enforced by such Civil Court. We are inclined to hold that though by the above deeming provision, a decree or order passed by a Deputy Commissioner under the Ordinance shall have the same force and effect as if it were a decree or order passed by a competent Civil Court, but from it, it does not follow that 'the requirement of framing issue under Order XIV, Rule 1, C . P. C . can be imported into the provisions of the Ordinance. The learned Assistant Commissioner had reliable evidence before him in the form of certified copies of the statements of petitioner's father and of the vendee Syed Muhammad son of Khan Muhammad on the basis of which, he could have dismissed the suit. The parties factually had produced the documentary evidence.

5. As regards the other two submissions of Mr. Khalid Malik that there was no reliable evidence on the basis of which, the question of limitation or the question of custom could have been decided, and that the learned Courts below have ignored the mutation entries in favour of respondent No.l which related to Lass Aab only and not the land, it may be pertinent to reproduce herein below the petitioner's father statement and of the vendee Syed Muhammad son of Khan Muhammad in the aforesaid pre‑emption suit filed by respondent No.1, which was decreed on 18th July, 1955, which read as follows:‑

6. A perusal of the above statements indicate that the subject‑matter of the sale transaction was not water alone but also of which, the possession was given as per custom obtaining in Norok. We are inclined to agree with Mr. Muhammad Aslam Chishti's contention that the petitioner being the legal heir of his father claiming through him, cannot wriggle out from the above statement. In this regard, it will be also pertinent to refer to the contents of the petitioner's plaint of the instant suit, particularly, paras. 1, 3 and 7, which read as follows: ‑ A plain reading of the above‑quoted paras. of the petitioner's plaint indicate that he himself has described Lass Aab in terms of the acreage of land. However, Mr. Khalid Malik, learned counsel for the petitioner has referred to respondent No. l's plaint of the suit for pre‑emption and the mutation entries in the revenue record, in which, there is no reference to the land, but only to Lass Aab. In our view, the entire evidence was before the learned Assistant Commissioner, i.e. petitioner's father and the purchaser's above statements made in the pre‑emption suit and the copy of the plaint of the respondent No. l's suit and the mutation entries. The learned Assistant Commissioner could have relied upon any of the pieces of evidence. The fact that he has relied upon the statements of the petitioner's father and of the vendee does not render his order illegal or without jurisdiction. The learned Assistant Commissioner being competent forum to record a finding of fact, could have recorded the finding on the basis of any of the pieces of evidence available on record on the question of limitation.

7. Mr. Muhammad Aslam Chishti, learned counsel for respondent No. 1 in order to reinforce his submission that the suit for pre‑emption could not have been filed by respondent No.1, if the land would not have been involved, has referred to para. 226 from the book Mulla on "Principles of Mahomedan Law" 1976 Print, which reads as follows:‑ "Pre‑emption. The right of Shufaa or pre‑emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold to another person." A perusal of the above‑quoted para. indicate that the right of Shufaa of pre‑emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold. Water cannot be said to be an immovable property which could have been the subject‑matter of a pre‑emption suit. The petitioner's father statement that the subject‑matter, apart from water, was the land, is in consonance with the above principle of Muhammaden Law.

8. For the aforesaid reasons, the petition'‑Is dismissed with no orders as to cost. These are the reasons in pursuance of our short order dated 18th May, 1986. M . Y . H . Petition dismissed.