2002 PLP 2889 (YLR)

(3) Whether the defendants had made improvements over the suit land to the extent of Rs.8010/‑? OPD (4) Whether the defendant has incurred Rs.260 as incidental charges? OPD (5) Whether the defendant is entitled to recover the amount mentioned in view of preliminary objections Nos.3 and 4 from the plaintiff? OPD (6) Whether notice under section 19 of the Punjab Pre‑emption Act was not issued to the plaintiff, if so, its effect? OPP (7) Whether the plaintiffs have superior right of pre‑emption as against the defendants? OPP (8) Relief.

3. The respondents produced P.W.1 Muhammad Shafi, P.W.2 Muhammad Sharif, while Alam Din appeared as P.W.3 as next friend of the respondents. In documentary evidence registered sale deed Exh.P.1, copy of Jamabandi Exh.P.2 ands copy of Khasra Girdawari Exh.P.3 was tendered in evidence.

4. On the other hand, the petitioner produced Abdul Sattar as D. W.1 Mualim Din as D.W.2, Abdul Jabbar as D.W.3 and petitioner appeared as his own witness as D.W.4. The document evidencing sale on 22‑10‑1973 was produced as Exh.D

1. The learned trial Court after appreciating the saw evidence came to the conclusion that a completed sale took place on 22‑10‑1973 and that the suit for pre‑emption having beep filed on 8‑3‑1979 was barred by time. Upon issue No.2, it was held that as the sale was found to be completed on the date stated above, the said sale was not pre‑emptible in view of the Notification No.74 dated 12‑6‑1944 in respect of former Bahawalpur State. Issues No.3, 4 and 5 were decided in favour of the petitioner. Basing its findings on Issues Nos. 1 and 2, the suit of the respondents was dismissed vide judgment and decree dated 26 10‑1980. The respondents preferred an appeal. The said appeal was accepted vide judgment and decree dated 18‑2‑1984, with the result that the suit for pre‑emption of the respondents stood decreed. While corning to this conclusion reliance was placed upon Exh. P.1, which was a copy of the registered sale deed dated 8‑1‑1979. It was held that the suit of the respondents was within time from this date and also that for the similar reason, the suit was not barred under Notification No.74 of 12‑6‑1944.

5. In this civil revision, Mr. M. M. Bhatti, Advocate, has pointed out gross misreading and non‑reading of evidence which according to him has occasioned gross miscarriage of justice.

6. To begin with it was contended by the learned counsel for the petitioner that the respondents/plaintiffs omitted to make any reference to registered sale deed in the plaint. Throughout the plaint no specific date of the, sale has been mentioned. Neither the registered sale deed was appended with the plaint nor entered in the list of reliance. The learned counsel for the petitioner made further reference to para three of the plaint, wherein, the sale made by Alam Din as General Attorney of the mother of the respondents/plaintiffs was described as fraudulent. According to him, if the sale itself is described as fraudulent, no suit for pre‑empting such sale is maintainable. He further submitted that in his written statement, the petitioner has specifically taken the objection that the sale had been completed on 22‑10‑1973 when the entire sale consideration was paid and possession also delivered. As per the contention of the petitioner neither the suit was within time from 22‑10‑1973 nor the suit for pre‑emption was maintainable as on 22‑10‑1973 the land was exempted from pre‑emption. The learned counsel for the petitioner has strongly criticised the judgment rendered by the appellate Court by contending that the evidence produced on the record had been grossly misread and that the material evidence was ignored. He referred to the statement of D. W.1 who was the scribe of Exh. D.1 (Iqrar Nama) to show that the transaction of sale evidenced by Exh.D.1 stood proved. He also submitted that` no question in cross- examination was put to D.W.1 in respect of the registered sale deed. Referring to the statement of the vendor Mualim Din who appeared as D.W.2. It was stated that the vendor had acknowledged his thumb impression upon Exh. D.1 who had also proved the receipt of sale consideration and handing over of physical possession of the land under the sale. The statement of D.W.1 and D.W.2 according to the learned counsel were fully corroborated by the petitioner who appeared as D.W.4.

7. Commenting upon the evidence of the respondents, he made reference to the statement of Muhammad Shafi P.W.1 who had candidly admitted in cross‑examination that: He pointed out that this statement was recorded on 10‑2‑1980. The learned counsel for the petitioner further stated that the registered sale deed was produced as Exh.P.1 through the statement of the learned counsel for the respondents. According to him for this reason no cross‑examination could be conducted regarding the said document as the same was not produced during the evidence of any witness of the respondents.

8. On the other hand, Mr. Sultan Wattoo, Advocate for respondents strongly supported the judgment of the Appellate Court. He contended that the registered sale deed Exh.P.1 would prevail over an unregistered document (Exh.D.1) and reckoning the limitation from the date of execution of the registered sale deed, the suit filed on 8‑3‑1979 was well within time. According to the learned counsel for the respondent no reliance could be placed upon Exh. D.1 in presence of Exh. P.1, in view of section 49 of the Registration Act. Further elaborating his submissions, the learned counsel for the respondent contended that as the sale would be deemed to have been executed through Exh.P.1 on 8‑1‑1979, the land in question was fully pre‑emptible when the suit was filed as the Notification No.74 dated 12‑4‑1944 in respect of the former Bahawalpur State was rescinded in 1974.

9. Arguments have been heard. Record perused.

10. According to the evidence produced by the petitioner Exh.D.1 has been proved to be a completed sale. This document has been proved through the evidence of D.W.1 who had scribed it and also by D.W.2 the vendor who had acknowledged his thumb impression upon Exh. D.1. The petitioner as D. W.4 further corroborated the execution of Exh.D.1. All the D.Ws are in unison that the sale consideration was paid and that the possession was handed over to the vendee under the sale which was thus completed on 22‑10‑1973. Having come to this conclusion, obviously, the suit filed on 8‑3‑1979 would be barred by limitation. Although it is correct that section 54 of Transfer of Property Act applies to the former State of Bahawalpur yet a sale to be pre‑emptible has to fulfil the requirements of a sale given in the Punjab Pre‑emption Act. 1913 whether or not such sale is evidenced by a registered document. Reference in this respect is made to the rule laid down in Abdul Karim v. Fazal Muhammad Shah PLD 1967 S.C.

411. The second objection of the petitioner that the sale was not pre-emptible is also sustained. As the sale was completed on 22‑10‑1973, the Notification No.74 dated 12‑6‑1944 was in the field and thus the land in question was not susceptible to pre‑emption. The suit of the respondent, could not succeed on another ground. Admittedly, the respondents themselves considered the sale by Mualim in favour of the petitioner as fraudulent. That being there own case they, could not file a suit for pre‑emption unless and until there was admittedly a valid sale in the field. Having termed the sale as fraudulent the respondents could not base a suit for pre-emption upon such a sale. There is force in the submission of the learned counsel for the petitioner that the manner in which the registered sale deed has been brought on the occasion miscarriage of justice. It cannot go unnoticed that in the entire plaint no reference is made to the registered sale deed.

11. In view of the above, the judgment and decree of the Appellate Court is not sustainable. As a result, the civil revision succeeds and the judgment and decree dated 18‑2‑1984 passed by the Appellate Court is set aside. Parties to bear their own costs. H.B.T./M.A.K./M‑1006/L Revision accepted.