1998 PLP 1274 (SCMR)

RAJA AFRASIAB KHAN, J.

Muhammad Shafi, the petitioner in Civil Petition No-1345-L of 1997 purchased land measuring 13 Kanals and 5 Marlas situated in village Bodi, Tehsil Pasrur, District Sialkot from Muhammad Rafique etc. in lieu of Rs.13,000 on 17-3-1980. Similarly, Muhammad Sharif, petitioner in Civil Petition No. 1346-L of 1997 purchased 13 Kanals and 5 Marlas of land in the same village from Bashir Ahmad etc. for Rs.13,000 on 17-3-1980. Ghulam Muhammad and Sher Muhammad, the predecessors-in interest of the respondents challenged the aforesaid sales through two suits for possession through pre-emption on 16-11-1981 on the ground that they had superior right of preemption being owners in the estate as against the petitioners. The petitioners contested the suits by filing written statements. It was pleaded that the vendees were also owners in the estate and as such, the pre-emptors cannot succeed in view of their special status. On the divergent pleadings of the parties, the learned Civil Judge framed the following issues:-- (1) Whether the plaintiffs possess superior right of pre-emption? OPD (2) Whether a sum of Rs.23,000 was fixed in good faith as the sale price of suit land or was actually paid? OPD (3) If not so what was the market value at the time of sale? OP Parties (4) Whether the plaintiffs are estopped to sue? OPD (5) Whether the suit is for partial pre-emption? OPD (6) Relief. The parties led evidence on the issues. The respondents/plaintiffs relied upon the testimony of Ashiq Hussain Patwari P.W.1 and Muhammad Ishaque P.W.2. The petitioners/defendants produced Abdul Latif D.W.1, Nazir Ahmad D.W.2, Allah Rakha D.W.3 and Muhammad Shafi D.W.4. The parties also produced documentary evidence in addition to their oral evidence. The trial Judge, after assessing and considering the evidence of the parties, decreed the suits of the respondents on 10-1-1984 vide two separate judgments. The judgments and decrees of the trial Judge were, however, set aside by an Additional District Judge, Sialkot through his separate judgments dated 18-3-1986. The respondents challenged the validity of the impugned appellate judgments and decrees through Civil Revisions Nos.1468 and 1469/1) of 1996 which were heard and accepted by the Lahore High Court vide common judgment dated 6-10-1997. The vendees have assailed the impugned judgment and decree through these petitions for leave to appeal.

2. Learned counsel submits that there was credible evidence available on record to demonstrate that the petitioners were the owners of agricultural land in the village where the disputed land is situated on the basis of a piece of land which was gifted to them by their father on 30-1-1980. Reliance in this behalf has been placed on Exh.D.1, the gift deed apart from the oral evidence produced by them. According to him, there was absolutely no justification, legal as well as factual, with the High Court to upset the well-reasoned judgments and decrees of the appellate Court whereby it was found that the petitioners were the owners in the estate and they had the superior right of pre-emption. Mr. S.M. Masud, learned counsel for the respondents has submitted that finding of fact was recorded by the High Court holding that the execution of gift deed Exh.D.1, was anti-dated to accommodate the petitioners for their success in this litigation, He has drawn our attention to the gift deed Exh.D.1 which shows on the face of it that the transaction in question was written on a plain paper and it was never registered although its registration was compulsory under the law. The High Court has observed:-- "I have examined gift deed Exh.D.1. A bare reading of it would reveal that this document is not merely an acknowledgement of a gift already made orally and the ownership rights of the donees in the property on the basis of the same prior to its execution but this itself purports to create right in the donees by way of gift in the land, therefore, provisions of section 17 of the Registration Act and the relevant provisions of the Stamp Act were applicable to this document as such the same was compulsorily registerable. As contemplated by section 49 of the Registration Act the said gift deed did not operate to create any right in the donees nor the same had the effect of extinguishing the rights of ownership in the land of the donor. It may significantly be mentioned here that Mutation No.57 regarding transfer of ownership rights in favour of donees was entered and sanctioned on the basis of gift-deed Exh.D.1 and since as held EXh.D.I did not operate to create any ownership rights in favour of the donees, therefore, this mutation is of no avail to the donees to prove that they were the owners in the village. It has not been executed on non-judicial stamp of the required value as required under the Stamp Act. It was rightly held and observed by the trial Court that this was a circumstance which furnished strong evidence to hold that the document was prepared later on and the same was anti-dated to non-suit the petitioners. The evidence of the parties was thorougly discussed by the High Court in coming to the conclusion that the gift of the disputed land was compulsorily registerable under section 17 of the Registration Act, 1908. The High Court also came to the conclusion that the gift. deed EXh.D.I was prepared with mala fide to create evidence to support the plea of the petitioners. This being so, the document referred to above was rightly held to be doubtful. We hold the view that the said document was prepared later on by the petitioners so as to become owner in the estate where the disputed land was situated. It is a finding of fact having been recorded competently by the High Court on the basis of cogent and strong evidence. There is no misreading or non-reading of the evidence available on record. We are satisfied to hold that substantial justice has been done through the impugned judgments and decrees. In such, a situation, there is no substance in these petitions which are hereby dismissed and leave to appeal is refused. A.A./M-104/S Leave refused.