1998 PLP 2755 (SCMR)

CH. MUHAMMAD ARIF, J.

Briefly stated the facts leading to instant appeal by leave of this Court are that the appellants/plaintiffs filed a suit for possession of the suit land through pre-emption against the respondents/defendants before the learned administrative Civil Judge, Bahawalnagar on 29-9-1963. Their case in the plaint was that the suit land measuring 479 Kanals, 11 Marlas located in the revenue estate of Village Chaweka Uttar, Tehsil and District Bahawalnagar was allegedly sold by Bashir Ahmed for a sum of Rs.22,000 but, to deter the pre-etnptors, Rs.30,000 was shown to have been paid to him by the vendees. They were the Pattidars/co sharers with the vendor and thus possessed of the superior right to the disputed land as compared to Shah Muhammad, Ata Muhammad and Sikandar who arc strangers and that although Muhammad Tahir is a Pattidar hut, having joined the said 3-vendees with him in the transaction in question he has lost his right on the principles of sinker. The respondents /defendants jointly resisted the suit and pleaded that Shah Muhammad and 2 others had improved their status by obtaining land in exchange from Muhammad Tahir-respondent/vendee vide Mutation No.229 attested on 27-11-1962 and, therefore, the pre-emptors were no longer possessed of any superior right of pre-emption. They also asserted to have made improvements over the disputed land and further took up the plea of waiver.

2. The pleadings of the parties are duly reflected in the issues struck in the case, which read thus: "ISSUES. "(1) Whether the plaintiffs have superior right of pre-emption than that the vendees? OPP (2) Whether the sale price of Rs.30,000 was fixed in good faith or paid: OPD (3) If not what is the market value of land in suit? OPP (4) Whether the suit is within time? OPP (5) Whether the defendants have made improvement over the property? so, of what value and with what effect? OPD (6) Whether the plaintiffs had already waived their right of pre-emption? OPD (7) Relief." The trial Court recorded the evidence of parties and found issue No.1 against the plaintiffs. Under Issue No.2 it was held that Rs.22,000 had becn proved to have been paid as the consideration for the suit land. Issue No.3 was left undecided with the observation that as the suit is going to fail on account of the findings under issue No.1, there was no need for its decision. Issue No.4 was found in favour of the plaintiffs and Issues Nos.5 and 6 were found against the vendees defendants as no evidence was led on them. This happened on 25-1-1972.

3. Appellants-plaintiffs challenged the judgment and decree dated 25-1-1972 of the learned Administrative Civil Judge, Bahawalnagar under section 96, C.P.C. and the same was allowed by a learned Additional District Judge, Bahawalnagar vide judgment and decree dated 3-3-1983. The suit was decreed subject to the deposit of Rs.30,000 as pre-emption money by 3-4-1983.

4. The respondents/defendants successfully challenged the judgment and decree dated 3-3-1983 before the Lahore High Court,. Bahawalpur Bench, through Civil Revision No.94-D- of 1983/BWP. The learned Judge in Chambers reversed the findings recorded by the learned Additional District Judge, Bahawalnagar vide the impugned judgment dated 17-3-1993 with the result that the pre-emption suit stood dismissed.

5. The penultimate paragraph of the Leave Grant Order dated 23-1-1995, reads thus:-- "Rana Muhammad Sarwar, learned counsel for the petitioners argued that the suit property was situated in Bahawalpur area where the Transfer of Property Act was applicable and that the High Court omitted to examine the documents produced by the petitioners. It was also argued that in a suit of the present nature the question of possession was important but the point of possession was not given any importance by the High Court. In respect of the possession, the learned counsel pointed out that Muhammad Tahir had filed a suit where he had taken, stand that he had not given possession." 6 Hence this appeal

7. It appears that the main contest of the parties in this litigation revolves around Issue No. 1, resolution of which of necessity, requires the decision of the following two questions: (1) Whether the respondents/vendees had not improved their status before the institution of the suit by the appellants/plaintiffs? (2) Whether the transactions of exchange of lands situated in Village Sikandar Baluchan and Village Chaweka Uttar are not in order? The findings of the learned Administrative Civil Judge, Bahawalnagar, appearing towards the ends of his discussion of Issue No. l read thus: "Lastly it was then contended by the learned counsel for the plaintiffs' counsel that no doubt Mutation No.229 wan entered on 15-11-1962 and Mutation No.107 was entered on 24-10-1962, but whereas the former was attested on 27th of November, 1962 the latter was attested on 20th of December, 1963 and, therefore, the exchange could not be termed as complete because in each case one property had to become consideration for the other and unless the consideration is complete on both sides on a particular date the transaction could not be said to be complete. What learned counsel for the plaintiffs wanted to who was that a Mutation No. 107 was attested on 20th of December, 1963, by which date the suit had already been instituted (date of institution is 29-11-1963) the vendees 1 to 3 could not be said to have improved their status. However, I do not agree with this contention. A transaction of land shall be deemed to have been completed on the day on which it was affected and not on the date on which a mutation in the Revenue Records was sanctioned as the title in the property passed away to the persons effected when the transaction of exchange was completed and not postponed till the attestation of the mutation. In the instant case the mutations were entered on 15-11-1962 and 24-10-1962. In my view the non-attestation of Mutation No. 107 till 20-12-1963 did not stand in the way of the vendees. I am clear in my mind that the transactions were completed before the institution of the suit and all the vendees shall be taken to have become owners in the village as the plaintiffs claimed themselves to be before the institution of the suit. Thus, on the day of institution both the parties to the suit stood on the equal footing and the plaintiff cannot be said to have superior pre-emptive right as against the vendees. The issue is accordingly found. against the plaintiffs." The learned Additional District Judge, Bahawalnagar dealt with the above questions and proceeded with reversing the findings of the learned trial Court under Issue No. l with the following observations:-- ....However, the plaintiffs were compensated when the trial Court had allowed them to produce the evidence in order to show fictitious character of the mutation of exchange in favour of the defendants Nos. l to

3. Now the question to be determined is whether the defendants had become the owners in the village, where the suit land was situated prior to the institution of the suit vide a mutation of exchange and thus the suit of the plaintiffs was liable to be dismissed. My answer to this preposition is in the negative on account of the following grounds:-- 1. (A) P.W.5 Noor Ali Patwari has stated that the Mutation No. 107 of village Sikandar Balochan was entered on 24-11-1962, while the same was attested on 20-12-1963. He also stated that one next Mutation No. 107/1 was entered on 29-7-1962 i.e. prior to Mutation No. 107 and that was attested on 17-8-1962. This witness also stated that in Mutation No. 107 the figure 107 has been over-written. He also stated that in the next Mutation No.107/ 1,. the figure 1 has been added by a different ink. The original register, which was retained by the trial Court has also been seen and that verifies the statement of the witness. It looks strange how the Mutation No. 107/1 which comes after 107 has been entered earlier than the Mutation No. 107. (B) There is a Rapat Roznamcha Waqiyati Exh.D-2 on file which pertains to this Mutation No.

107. But the perusal of the Mutation No. 107, the copy - of which is Exh. D-4 shows that there is no entry about this Rapat Roznamcha in the mutation itself. (C) There is a copy of the report of Tehsildar Minchinabad dated 5-11-1983 on file, which is Exh.P-5 and that is to the effect that no mutation in favour of Muhammad Tahir defendant No.4 had been attested up to that date in village Sikandar Baluchan. (D) The independent witnesses Ahmad P.W.3 and Nazar Muhammad P.W.4 who are residents of Sikandar Baluchan have stated that the defendant No.4 did not have any land in village Sikandar Baluchan. The statements of these witnesses were corroborated by the statements of D.W.2 Ahmad Din and D.W.4 Sharif, who had stated in their cross -examination that they had heard about the exchange. (E) The possession of the land exchanged between the defendants at the two different places i.e. in village Cheveka Autar and Sikandar Baluchan was not transferred as is evident from the copies of Khasra Girdawaris about the village Sikandar Baluchan Exh. D-10 and Exh.D-12 as well as from the copy of Khasra .Girdawari about the village Chaveka Autar Exh.D-16. According to these Khasra Girdawaris, both the parties did not take 'the possession of the lands, they had allegedly got under exchange in both the villages till the Rabi Crop, 1964. That, means up to Kharif Crop 1963, both the parties remained in possession of their respective lands, which they had transferred in exchange to each other. These Khasra Girdawaris had contradicted the document Exh.D-1 which is Rapat Roznamcha Waqiayati according to which the transfer of possession of land in Chaveka Autar was transferred on 15-11-1962 as well as the Rapat Roznamcha Waqiyati Exh. D-2 about the village Sikandar Baluchan according to which the possession of land was transferred on 24-10-1962. This means that no possession of the land exchanged between the parties had been transferred at the spot. From the above discussion, it is clear that the proceedings about the mutations of exchange had been fabricated by the defendants in collusion with the Revenue Staff as well as inter se.

2. Even if it may be admitted that the Mutation No.229 in favour of defendants Nos.1 to 3 had been attested on 27-11-1962 before the institution of the suit, even then that transaction of exchange cannot be said to have been completed because the land in exchange of that mutation was transferred vide Mutation No.107 of village Sikandar Baluchan on 20-12-1963 after the institution of the suit. It means that if at all the mutations may be presumed to be correct, these were completed on 20-12-1963 on the attestation of the Mutation No.107 in village Sikandar Baluchan and prior to this date no exchange could be said to have been completed in favour of the defendants Nos,1 to 3 and this becomes an improvement in the status of the defendants Nos. l to 3 after the institution of the suit and the defendants cannot get any benefit out of it .... Further, the learned Judge in Chambers dealt with the questions in their composite nature in the impugned judgment dated 17-3-1993 and disposed them of in terms of the followings:-- "

9. The learned trial Court, however, had not taken into acwunt that the part of the statement of Noor Ali, Patwari (and also D.W, 12) that Mutation No. 107/1 was entered in the mutation book by Wali Muhammad Patwari, real brother of the pre-emptors. In fact that Patwari was present with the respondents in the Court when statement of his colleague (P.W.5) was recorded. The learned counsel for the appellants had rightly contended that Mutation No. 107/1 relatt( to land of R. L. II No. 19 which was proposed on the 25th of June, 1962 and confirmed on the 5th of April, 1969. This land could not be entered into mutation registered in 1962 at Serial No.107/1. And it might have been done by Wali Muhammad, Patwari of the Halqa in order to create doubt for which he succeeded before the learned Additional District Judge. The report Exh. P.3 of the Tehsildar is also without consequence being inadmissible. He had not appeared to verify the correctness of the report which otherwise stands in sharp contract to the documents. The Supreme Court had ruled in Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160) that documents which are not copies of judicial record should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them, even if such documents are brought on record and exhibited without objection. Anyhow the writing (Exh.P.3) cannot be preferred to overwhelming evidence produced by the appellants on the subject. The point particularly stressed by the learned counsel for the respondents was about incompletion of the transactions of exchange. It was contended that the Mutation No. 107 though entered on the 24th of October, 1962 was attested on the 20th of December, 1963 that is after institution of the suit and, therefore, it was of no help to the appellants. The learned Additional District Judge was impressed by this argument. I, however, uphold the reasoning of the Court of first instance that a transaction of land shall be deemed to have been completed on the day when it was effected and not on the date on which a mutation was formally attested. The Mutation No. 107 was entered on the 24th of October, 1962 before institution of the suit and the entry spoke about the factum of exchange and possession. The Roznama Waqiati (Exh. D-1) also corroborates the said fact. The sale was complete for all intents and purpose and attestation done subsequently was a formality. The said plea was available on to Muhammad Tahir appellant but he stuck the genuineness of the exchange.

10. The upshot is that the exchange of the lands inter se appellants Nos. l to 3 on the one hand and appellant No.4 on the other were not fictitious but were genuine.

11. The learned Additional District Judge was also unduly impressed by the objection of the learned counsel ,for the respondents that the transactions were violative of paragraph 25(4) of the West Pakistan Land Reforms Regulation, 1959 (C.M.L.A. 64 of 1959). Mutation No.229 shows that out of 188 Kanals only 88 Kanals were given in exchange and Mutation No.107 indicates that Sikandar was the owner of 45 acres and he gave four acres in exchange whereas Shah Muhammad was the owner of 22 acres, he gave 3-1/2 acres. Ata Muhammad was owner of 20-1/2 acres. He also gave 3-1/2 acres. It clearly indicates that Sikandar, Shah Muhammad and Ata Muhammad collectively or individually were owners of more than subsistence holding and as such the authority relied upon by the learned District Judge PLD 1966 Peshawar 11 is not attracted in the present case and it has been wrongly applied because that authority speaks about the exchange of land by those persons who own less than subsistence holdings. Further the cited authority was dissented by the Division Bench of the same High Court Abdul Majid Khan v. Shahzada Asif Jah (PLD 1970 Peshawar 37). The mutations (Exhs. D-4 and D-22) also do no mention about violation of the Martial Law Regulation. The lands of the appellants even after severance of the land given in exchange, was more than subsistence holding, and thus, the transactions were permissible. The exchange in question in favour of the appellants Nos.1 to 3 was valid and thereby they had become co-sharers likewise their co-appellant Muhammad Tahir and the respondents/pre emptors. The latter, therefore, had failed to establish their superior right of pre-emption qua the appellants. The pre-emption suit in the circumstances was rightly dismissed by the learned Administrative Civil Judge,"

8. Rana Muhammad Sarwar, learned counsel appearing in support of the appeal has referred to a Notification/ in the Government Gazette Bahawalpur, dated 19th May, 1931 published on 28th May, 1931 to contend that as the provisions of the Transfer of Property Act (No. IV of 1882) were made applicable within Bahawalpur State, the alleged transactions of exchange between the respondents/vendees could not be considered to be binding as the same did not come about through registered documents. He has referred to Sohna v. Allah Dad and another (PLD 1962 Baghdad-ul-Jadid 17) in that behalf. According to him, the transactions of exchange between respondents Nos. l, to 3 and respondent No.4 answer the description of sale in section 54 of the Transfer of Property Act (ibid). His next contention was that both the mutations of exchange were of no avail to the other side in that the Revenue Record nails the lie and supports the cause of the appellants to the effect that respondents/vendees did not part with their respective possession of lands in Vv. Chaweka Uttar and Sikandar Baluchan. The precise plea was that the alleged transactions of exchange were sans transfer of possession of the lands involved therein to the respective parties and that they are simply the result of respondent-vendees' collusion with the revenue staff.

9. Contrarily, Mr. Maqbool Elahi Malik, learned counsel appearing on behalf.of the respondents/vendees, has supported the impugned judgment and argued that the question regarding his clients taking possession of the lands involved therein, stands clinched by Exhs.Dl and D

2. According to him, Revenue, Record indicating that possession of the lands had in fact exchanged hands between his clients in Vv. Chaweka Uttar and Sikandar Baluchan, was rightly taken into consideration by the learned Judge in Chambers of the Lahore High Court, Bahawalpur Bench, Bahawalpur.

10. While exercising his right of reply to the arguments of learned counsel for respondents, Mr. Rana Muhammad Sarwar referred to Murid Hussain and another v. Muhammad Shafi and another (PLJ 1980 Lahore 355) to contend that the revenue staff being in collusion with the respondents/vendees, the entries attributed to Halqa-Patwaris cannot be considered to be the last word on the subject and the same were rightly ignored by the learned Additional District Judge, Bahawalnagar in his judgment dated 3-3-1983.

11. We have considered the arguments addressed at the Bar and have also perused the available material with the help of the learned counsel for the parties. The arguments by the learned counsel for the appellants that the doctrine of sinker is applicable to the instant case has not impressed us in the least. It is trite law that a vendee can improve his status before the institution of suit of pre emption against him. The argument that by the time of institution of this suit the transactions of exchange had not been completed is misconceived. The entries in the Revenue Record in that regard were duly noticed by the learned Judge in Chambers and it was correctly held that the disputed transactions of exchange are deemed to have been completed on the day when they were effected/entered and not on the date on which they were formerly attested. Even Roznamcha Waqiati (Exh.D1) supports the plea of the respondents/vendees that respondents Nos. l to 3 had taken over the possession of lands in village Chaweka Uttar., prior to institution of the suit by the appellants. Viewed in this perspective, the doctrine of sinker was rightly not applied by the learned Judge in Chambers, in this matter.

12. It is not the case of the appellants that the High Court was not possessed of the jurisdiction to reverse the findings of the appellate forum in the exercise of its jurisdiction under section 115, C.P.C. The evidence in the case was duly considered by the learned Judge in Chambers and the finding recorded in para. 10 of the judgment under appeal "...that the exchange of lands inter se appellants Nos. l to 3 on the one hand and appellant No.4 on the other were not fictitious but were genuine", cannot but be upheld.

13. Before parting with this judgment we may observe that the reliance placed by the learned counsel for the appellants on /Notification dated 19-5-1931 published in Government Gazette, Bahawalpur on 28-5-1931, simply pales out when considered in juxtaposition with the findings by the High Court that the disputed transactions of exchange were completed on the date when possession of the lands thereunder was taken over by the respective recipients generally and of the lands of village Chaweka Uttar, in particular.

14. For all that has gone before, the instant appeal is dismissed with no order as to costs. A.A./N-24/S Appeal dismissed