1983 PLP 1227 (CLC)

(c) Transfer of Property Act ((V of 1882)‑ ‑ S. 54‑Sale deed‑Not registered in compliance with S. 54, held, does not vest pre‑emptor with a valid title. Muhammad Bakhsh v. Ziaullah and others P L D 1971. B J 42 and Pir Baksh v. Budhoo P L D 1978 B J 86 ref. H. Sadullah Khan for Petitioner. Muhammad Ashraf Kundi for Respondent. Date of hearing : 24th November, 1982. Gul Badshah purchased the suit land for a sum of Rs. 10,500 per muta tion No. 7063 attested on 26th September, 1972 and the sale was pre‑empted by Sherbaz Khan. Gul Badshah denied the superiority of the pre‑emptor's right and claimed to have paid the aforesaid amount in good faith to the vendor. The pleas were reduced to various issues and after recording such evidence as the parties wished to adduce the suit was dismissed by the learned Senior Civil Judge, Bannu on 17th June, 1974. Sherbaz Khan preferred an appeal which was accepted by the learned District Judge, Bannu on 29th November, 1974 and a decree on payment of Rs. 10,500 was passed in his favour. Aggrieved from the judgment and decree the defen dant Gul Badshah has come on revision to this Court.

2. The petitioner had. purchased the suit land per mutation No. 7063 attested on 26th September, 1972 and had per mutation No. 7362 attested the same day acquired one marla by way of exchange. Both these muta tions had been entered the same day and it appears that the exchange muta tion had been entered prior to the sale mutation. The respondent pre emptor had not referred to the exchange mutation in his plaint and, as such, no issue was framed with regard to its validity or otherwise. It was, however, argued before the learned lower Court that the exchange being in viola tion of M. L. R. 115 was void and would be of no assistance to the peti tioner‑vendee. The plea did not prevail before the learned trial Judge but had found favour, with the learned District Judge who held the exchange; void under M. L. R. 115.

3. The learned counsel for the petitioner strenuously contended that the learned District Judge had traveled beyond the pleadings of the parties and had adjudicated upon a' point which had not been set up by the res pondent in his plaint. The contention is not without force and substance. A look at the plaint shows that he had no mention of the exchange mutation at all though in the extract from the Jamabandi appended to the plaint a mention had been made of this mutation. All that the respondent stated during the course of the statement was that the exchange mutation' was fictitious. The learned counsel for the petitioner contended that the respondent could bring a pre‑emption suit qua the exchange alleging it to be a sale but the question of validity of exchange could not be determined in the pre‑emption suit. He relied on Muhammad Bashir v. Ghulam Akbar (1982SCMR1018) wherein it is observed that "as the law of pre‑emption is the law of substitution and no other Court except the authority concerned under M.L.R. 115 can go into the question or the validity of the sale." A similar view has been expressed in Badla v. Khuda Bakhsh and others (PLD1982SC53) and it is remarked that civil Courts in pre‑emption suit are not to test the validity of sale on the touchstone of Land Reforms Regulation. In Nasim Khan v Shah Said and others (1968 S C M R 971) it was observed that the pre‑emptor could not challenge the validity of the transaction in dispute. The right of pre emption was a mere right of substitution for one of the parties to the transaction on the assumption that the transaction is a valid one. I am, therefore, of the view that the learned District Judge erred in taking upon himself to determine the validity of the exchange under M. L. R. 115 as the point was not at issue between the parties as reflected in the issue framed nor the question could be adjudicated upon in the absence of both the parties to the exchange. The Civil Court in the pre‑emption suit had no jurisdiction .to go into the question of exchange in being, violation of

4. The learned counsel for the respondent emphatically urged that the exchange being invalid the petitioner could not base his claim on it. He in this context placed reliance on Muhammad Bakhsh v. Ziaullah and others (P L D 1971 B J 42) and Pir Bakhsh v. Budhoo (PLD1978BJ86). Both these authorities have dealt with section 54, Transfer of Property Act and it was held that the sale‑deed not registered in compliance with the aforesaid provisions of law did no vest the pre‑emption with a valid title. These authorities are of little assistance to 'he respondent and have not relevancy to the point agitated before me. It follows that the petitioner had become a co‑sharer in the suit land on the strength of the exchange and the respondent had failed to establish his superior right of pre‑emption. It being so, the respondent stood non‑suited. In the result, I would accept the revision, set aside the judgment and decree of the learned District Judge and restore that of the learned Judge. Bannu. The parties are, however, left to bear their own costs. M, Y, M, Review petition accepted