P L D 2010 Peshawar 80 (PLP)

ZIA-UR-REHMAN KHAN, J.

Impugned herein is the judgment dated 24-9-2007 rendered by Additional District Judge Peshawar whereby while dismissing the appeal of the petitioner the judgment and decree dated 26-3-2007 passed by the learned Civil Judge-IV Peshawar, dismissing the suit for possession through pre-emption, has been upheld.

2. Brief history forming the background of the instant litigation is that the respondent purchased the disputed property on the basis of registered sale-deed dated 7-12-2000 for a sum of Rs.16,5,000 as entered in the sale-deed and admitted correct by the two Courts below, from the vendors Inamullah Khan etc. on the dint of the said registered deed Mutation No.279 dated 13-12-2000 was also attested in favour of the respondent. The total area which is the subject-matter of dispute is 42 Kanals, 16 Marlas bearing Khasra Nos. 287, 288, 345 and 383 situated in Mauza Charpariza Tehsil and District Peshawar. The present petitioner in the capacity of plaintiff filed a suit for possession through pre-emption on 2-4-2001 on the ground that he being a co-sharer participator in the immunities and appendages and contiguous owner has got a superior right of pre-emption qua the suit-land against the respondent, who is the stranger as a first purchaser. About the performance of the legal formalities namely Talb-e-Muwathibat and Talb-e-Ishhad it is averred in the plaint that the petitioner on gaining knowledge in his Hujra on 17-3-2001, he performed the formality of jumping demand by declaring his intention to exercise his superior right of pre-emption in presence of witnesses namely Muhammad Afzal son of Farid Khan and Abdul Mastan son of Sherin. However, neither the name of informer nor any specific time with regard to the observance of the first legal formality is mentioned in the plaint. It is further averred that thereafter notice of Talb-e-Ishhad was scribed and duly attested and signed by the said witnesses, was dispatched to the respondent through the concerned post office. He has also mentioned his superior right of pre-emption and has alleged that the sale consideration mentioned in the registered sale-deed is exaggerated one, in fact it was 13,37,500.

3. The respondent on appearance opted to controvert all the claims of the petitioner by submitting his written statement wherein he raised many legal and factual controversies. The learned trial Court after framing necessary issues emanating from the pleading of the parties put the parties on trial and after recording pro and contra evidence of the parties produced by them in support of their respective allegations, dismissed the suit of the petitioner. The same was the fate of his appeal. Thus the instant revision petition.

4. Learned counsel for the petitioner vehemently contended that both the Courts below have wrongly non-suited the petitioner on the grounds of estoppel, waiver, limitation, non-possessing superior right of pre-emption and non-observance of the legal formalities of Talb-e-Muwathibat and Talb-e-Ishhad and exhibiting photostat copy of the notice instead of the original. He also contended that the vendee is not entitled to any amount of improvement and as such the petitioner in the light of the material available on record has got a valid cause of action. In order to substantiate his contentions he referred to all the valid segments of the file and invited the attention of this Court to each and every piece of evidence.

5. On the contrary the learned counsel for the respondent while opposing the said contentions of the counsel for the petitioner supported the concurrent findings of fact recorded by the two Courts below and 'solicited the dismissal of the revision petition being without force.

6. I have heard the respective contentions of both the learned counsel for the parties and examined the entire available record in a threadbare manner. It is evident from the record that the sale in favour of the respondent was effected from two Khatas namely 11 and 15, out of which one Khata comprises Khasra Nos. 287, 288 and 345, whereas the other Khata No. comprises only one Khasra No. namely

383. These are the entries of the Fard Jamabandi pertaining to the year 1996 and 1997. I would like to first advert to the question of limitation in this case, which is of paramount importance, because both the Courts below have categorically held that sale between the vendors and the vendee in fact was materialized in the beginning of 2000 in respect whereof two deeds were also executed and the sale consideration was also paid at that time followed by delivery of possession of the disputed property to the vendee and the subsequent registered sale-deed and attestation of mutation was a mere formality. The Courts below have duly considered the entries of the Khasra Girdawari and Roznamcha Waqiati as valid one while computing the period of limitation for the purpose of institution of the instant suit. This court is unable to concur with the opinion so expressed by the learned two Courts below. The obvious reason is that although in the written statement the petitioner has given the details about his obtaining possession in Rabi 2000 as a vendee, but during evidence he has utterly failed to substantiate this assertion. First of all I would like to examine the recitals of the registered sale-deed as to whether the possession of the disputed property was in fact delivered to the respondent by the transferors after the payment of sale consideration as full-fledged owner and whether the subsequent registered sale deed was a mere formality?. The answer to all these questions is in negative. A cursory glance on the contents of the sale-deed make it crystal clear that the possession of the disputed land would be delivered to the vendor on the spot from the date of execution and attestation of registered sale-deed. It is further categorically written that "the vendee shall be presumed owner of the disputed property from the date of attestation of registered sale-deed." No sale consideration was paid in presence of the Sub-Registrar at the time of attestation of the sale deed. Rather it was stated to have been received prior thereto, nonetheless the Courts below have held that the whole amount was paid at the time of registration. If the plea of the respondent with regard to the execution of two sale agreements, his obtaining possession of the disputed property and the evidence so produced in this regard, is kept in juxtaposition with the clear recitals of the registered sale-deed, the plea of the respondent looses its legal value. More particularly when one Inamullah who has appeared as D. W.5 and is one of the transferors; could in his deposition substantiate the plea of the respondent in this regard, but his statement is absolutely silent. He has not uttered a single word about the execution of any sale-deed, the delivery of possession much prior to the execution of sale-deed to the vendee and any change in the entries in Khasra Girdawari and any statement in the Roznamcha Waqiati. Had all these facts been mentioned in the registered sale-deed, then of course it could be held that the period of limitation would not reckon from the date of attestation of the registered sale-deed. Moreover, in the absence of any valid proof the Courts below have wrongly given much weight and preference to the entries of Khasra Girdawari and Roznamcha Waqiati over the contents of the registered sale-deed to which for all practical purposes much presumption of truth is attached as compared to the entries of Khasra Girdawari and Roznamcha Waqiati. In this view of the matter for computing the period of limitation this Court is left with no option but to hold that for the institution of the present suit the period of limitation started running from the date of registration of the sale deed and all the previous acts are declared to have been done with mala fide intention in order to non-suit the present petitioner. Reliance in this respect can validly be placed on a judgment of the august Supreme Court of Pakistan reported as Maulana Noorul Haq v. Ibrahim Khalil 2000 SCMR 1305. The relevant observation is reproduced below: "S. 31

Civil Procedure Code (V of 1908), O.VII, R.11(d)

Registration Act (XVI of 1908), S.47

Pre-emption suit arising from a registered sale-deed

Limitation

Rejection of plaint--Pre-emption suit having been brought beyond one hundred and twenty days of registration of the sale-deed was time-barred and plaint of pre-emptor was rightly rejected

Registration of sale deed was a notice to public-at-large." Another judgment in this regard of the august Supreme Court is 2000 SCMR 1053 titled Nazo Khan v. Karam Hussain the relevant citation whereof is reproduced as under-- "Period of limitation was to start from the date of attestation of mutation and not from the date when vendee entered into possession of the land". About agreement to sell, sale and non-attachment of presumption of truth to the Khasra Girdawari, reliance is placed on 2007 SCMR 1802 titled Sikandar and others v. Sher Baz.

7. The crux of the above discussion is that the suit of the petitioner was well within time and in this regard the findings of the learned subordinate Courts are not sustainable.

8. As far as the second contention of the learned counsel for the petitioner that as neither the petitioner had any role towards the materialization of the sale between the vendors and the vendee nor he was present at the time of measurement of the disputed property nor he had any knowledge about it, therefore, the Courts below have wrongly applied the principles of waiver and estoppel against the petitioner while non-suiting him, is concerned, this contention also carries weight. The reason is that in the Pre-emption Act, being a special law, there are certain formalities, which are required to be fulfilled before the sale takes place and after the sale is effected. If the requisite formalities are not fulfilled in accordance with the relevant sections and provisions enshrined in the said Act, there can be no waiver or estoppel against the pre-emptor. The first section of law is section 12 whereunder the transferor is required to give a notice of intention to sell. It has its own requirements and this notice is supposed to be given to the prospective pre-emptor. Likewise after the sale too under section 32 notice is required to be given by the Registrar registering the sale-deed or the Revenue Officer attesting the mutation of a sale. Unfortunately in the instant case without following the formalities of these two sections the petitioner has been non-suited. Needless to mention that when the law requires certain a thing to be done in a certain manner, it has to be done in that manner or not at all. Moreover, the principle of waiver is contained in section 15 of the said Act, whereunder "the right of pre-emption shall be deemed to have waived if the pre-emptor has acquiesced in that sale or has done any other act of omission or commission which amounts to waiver of the right of pre-emption". This legal formality is also lacking in the instant case as to what type of acquiescence was on the part of the petitioner. Needless to mention that this type of waiver is not synonymous with the type of estoppel mentioned in Article 144 of the Qanun-e-Shahadat Order, 1984. The statement of D.W.4 does not support the presence of the plaintiff/petitioner at the time of demarcation. More particularly when there is no evidence as to on which specific date the demarcation took place i.e. either prior to the sale-deed or subsequent to it. Thus on this score too the impugned findings are not sustainable. The other Supreme Court in a case reported as "1999 SCMR 201" titled Ubaidur Rehman v. Mohmand in a pre-emption case has observed: "That even the statement of pre-emptor before the trial Court that he could not purchase the property at the time of its sale as he had no money at that time, did not amount to waiver of the pre-emption right nor such statement of pre-emptor was indicative of a conduct which would be construed as waiver of the right of pre-emption". Likewise in another judgment reported as 2005 YLR 376 titled Muhammad Ans and others v. Akbar Ali and others the Lahore High Court in a pre-emption suit about estoppel observed as under: "Ss. 4 & 12

Pre-emption right, exercise of

Plea of estoppel--Vendee setting such plea on prior assurance of pre-emptor that he would not pre-empt the sale

Validity

Vendee who settles his bargain with vendor and buys property relying on prior assurance of pre-emptor that he would not pre-empt, such vendee cannot successfully set up the plea of estoppel and waiver in a suit for pre-emption." Similarly the contention of the learned counsel, that the factum of notice Talb-e-Ishhad by exhibiting photostat copy has stood proved and the observation of the appellate Court that due to non-production of the original the copy could not be produced is also full of force. The provisions of Article 77 of the Qanun-e-Shahadat Order, 1984 postulate that any document which in itself is a notice the same need not be proved through secondary evidence. Reliance in this respect can be placed upon a judgment of the august Supreme Court of Pakistan reported as "Hameedullah Khan and others v. Mst. Zeenat Khatoon" 2008 SCMR 1444, the relevant portion is reproduced hereunder:

"Ss. 6 & 13

Constitution of Pakistan (1973), Art.185(3)

Suit for pre-emption

Making of Talbs

Suit was dismissed by Trial Court on ground that respondent had failed to prove Talbs

Appellate Court below and then High Court, in exercise of its revisional jurisdiction, concurrently set aside judgment of Trial Court

Validity

Contention of petitioners was that Talb-e-Ishhad was not duly performed by respondent and she had failed to prove notice in that respect and that photostat copy of notice brought on record was not admissible in law

Respondent had tendered copy of notice which was in her possession after sending original to petitioners

Court was legally right to accept photostat copy and on that score, no point was made out for grant of leave to appeal

Petition for leave to appeal was dismissed and leave declined".

9. As far as superior right of the petitioner qua the disputed land is concerned, in this regard the learned trial Court has framed issue No.10, which, despite admitting this superior right of pre-emption, has been answered in negative, in view of its findings on issues Nos.1 to

4. Whereas the learned appellate Court while dealing with the said issue has held that the petitioner is not possessed of any right of pre-emption. The finding so recorded as far as with regard to Khasra No.383 is concerned, the same is incorrect. Because in the Fard Jamabandi pertaining to the year 1996-97 the said Khasra No. is forming part of Khata No.15, in which the pre-emptor is recorded as owner, out of which only eight Marlas have been purchased by the vendee. With regard to the remaining Khasra Numbers the petitioner has made his endeavours to prove that the remaining Khasra numbers lie adjacent to his other Khasra numbers and all of them are irrigated from one and the same water channel. All these Khasra numbers and water channels are duly mentioned in this Aks Shajara Kishtwar. The learned appellate Court while recording its finding on this relevant issue has discarded the superior right of pre-emption of the petitioner on the ground that although he is owner of certain other Khasra Numbers, the irrigation whereof is from common water channels, but as the said water channels are the property of the Government, therefore, such right of irrigation does not confer any superior right upon the petitioner as participator in immunities and appendages. Reliance in this respect has been placed by the learned appellate Court upon a judgment reported as "PLD 2004 SC 493" in which the joint right of irrigation from a water course belonging to Government has not been qualified as a right of Shaf-i-Khalit. This Court does not deny and cannot controvert the observation of the august Supreme Court of Pakistan, but in the instant case whether all the water channels, which irrigate the disputed property and that of the petitioner are in fact owned by the Government? The only proof available on the record is the Far Jamabandi Exh.P.W.7/D-1 pertaining to the water channels bearing Khasra Nos. 274, 289, 290, 349 and

385. It is evident from the ownership column that all these water channels (Ghair Mumkin Khata) are recorded as Shamilat Deh and in the column of Cultivation "Maqbooza Malikan". The question is that in the absence of any ownership of the Government about these water channels the learned appellate Court has denied the superior right of pre-emption as a Shafi khalit to the petitioner. In view of the availability of this Fard the learned appellate Court was required to have ascertained this fact as to whether what concern the Government has got with these Khasra Numbers and as to whether the petitioner is a co-sharer in Shamilat as a member of the proprietary body. Likewise the cultivation column of Fard Jamabandi for the year 1996-97 about three Khasra Nos. shows that the present plaintiff along with his brother is shown in possession in respect of Khasra No.328. These two questions have escaped the kind notice of the Courts below before holding the petitioner being possessed of no superior right of pre-emption in respect of the disputed property.

10. In view of the presence of such lacunas in the findings of the learned appellate Court I do not feel the necessity to record my findings on the remaining issues as to whether the petitioner has observed the formalities of Talb-e-Muwathibat and Talb-e-Ishhad and whether his evidence in this respect is discrepant in nature. I leave it open to the learned trial Court to record its finding afresh on this material issue about the observance of the said legal formality. Because the findings of the learned trial Court is silent on this issue. Likewise the question of improvement is required to be decided in accordance with the provisions of the relevant section of the Pre-emption Act namely section 21.

11. Resultantly, while accepting the instant revision petition the impugned judgments and decrees are set aside and the matter is remanded to the trial Court with the direction to ascertain the fact whether the water channels which irrigate the disputed property and that of the petitioner is Government property and if not so whether the petitioner is owner in Shamilat Deh as a member of the proprietary body. If necessary the trial Court may also appoint a Local Commissioner deputing him to the spot for the ascertainment of the above fact. The trial Court is also directed to give detailed findings on the question of Talabat, improvement and cause of action. The trial Court is further directed to complete this exercise within a period of two months positively, because this litigation has consumed almost one decade. Parties are directed to appear before the trial Court on 20-5-2010. There shall be no order as to costs. Office is directed to send the record forthwith. H.B.T./154/P Case remanded.