1993 PLP 283 (CLC)

(1) Whether the plaintiff possesses superior right of pre‑emption qua the defendant? OPP. (2) Whether the ostensible sale price of 4,000 was fixed bona fide and actually paid? OPD. (3) If the above issue is not proved then what was the market value of the suit land? OPD. (4) Whether the plaintiff has no cause of action for the present suit? OPD. (5) Whether the suit is time‑barred? OPD. (6) Whether the defendant has spent Rs.40,000 for construction of a house on the suit land, if so, its effect? OPD. (7) Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD. (8) Relief. After recording the evidence of the parties and hearing arguments in the case, learned trial Court decreed the suit of a re‑emptor who is respondent in the civil revision on the payment of Rs.4,000 as the sale price and an amount of Rs.40,000 as the price of improvements vide judgment and decree dated 22‑11‑1989. Aggrieved of the said judgment and decree the petitioner as well as the respondent filed two separate appeals. The petitioner in this civil revision was aggrieved of the total decree whereas the respondent who is a petitioner in the connected writ petition was aggrieved of the amount of Rs.40,000, the price of construction which had been directed to be paid by the pre‑emptor. Operation of the decree was suspended by the learned first appellate Court. Learned first appellate Court vide judgment and decree dated 12‑6‑1991 dismissed the appeal filed by the petitioner and accepted that of the respondent holding that the amount of Rs.40,000 could not have been directed to be paid by the pre‑emptor. It may be mentioned that the decretal amount had not been deposited by the pre‑emptor respondent in pursuance of the decree passed by the learned Civil Judge inasmuch as the decree had been suspended by the learned first appellate Court. It may further be mentioned that in the judgment dated 12‑6‑1991, no period was fixed for deposit of sale amount of Rs.4,

000. Thereafter, the pre‑emptor respondent in this civil revision submitted an application on 27‑6‑1991 before the learned Civil Judge for grant of permission to deposit the decretal amount of Rs.4,000 minus 1/5th of the sale amount. But this application was dismissed by the learned Civil Judge on the ground that as the period originally fixed by the learned trial Court has already expired, the proper course for the pre‑emptor is to apply to the appellate Court. Resultantly, the pre‑emptor who is a petitioner in the connected writ petition applied to the learned appellate Court for deposit of the pre‑emption money on 1‑7‑1991 but this application was dismissed by the learned Additional District Judge, Chunian vide order dated 10‑7‑1991 on the ground that the Court has become functus officio and therefore the application cannot be granted as the suit stands dismissed for want of deposit of the decretal amount. Judgment and decree passed by the two learned Courts below have been challenged by the vendee through titled civil revision whereas the order of refusal to deposit the decretal amount has been challenged by the pre‑emptor through the connected Constitutional petition.

3. Sardar Shaukat Ali, Advocate has appeared on behalf of the petitioner in this civil revision and on behalf of respondent No.3 in the connected writ petition whereas Mr. Muhammad Zafar Clinudhry, Advocate has appeared on behalf of the respondent in this civil revision and on behalf of the petitioner in the connected writ petition. Sardar Shaukat Ali, Advocate, has raised the following contentions:‑‑ (1) That the suit is barred by time inasmuch as the land in question was purchased by the petitioner from one Suleman son of Noor Muhammad on 21‑1‑1976 and the possession under the sale was taken on the same day as is clear from documents EXhS.D1 and D

2. It is further contended that the land in question has actually been purchased by Suleman from Ghulam Nabi the original owner vide Exh.DC on 21‑7‑1966 and therefore the subsequent purchase from Ghulam Nabi through the Mutation No.6343 sanctioned on 30‑11‑1986 will not be the starting period of limitation hence the suit which has been instituted on 29‑1‑1987 is clearly barred by time. (2) That the three Talabs in accord with Injunction of Islam have not been proved to have been made hence the suit has illegally been decreed and the same is liable to be dismissed. (3) That the vendee was entitled to the payment of Rs. 40,000 by way of compensation but for improvements on account of construction of a house but the learned lower appellate Court has illegally set aside this portion of the judgment of the learned trial Court and has deprived the vendee of the amount which was validly granted by the learned trial Court. (4) And that the suit stands dismissed by non‑deposit of the decretal amount and therefore on this account alone, the judgment and decree passed by the two learned Courts below are liable to be set aside and the connected writ petition is liable to be dismissed inasmuch as no relief can be granted to the pre‑emptor whose suit stands dismissed. Learned counsel appearing on behalf of the respondent in the civil revision and petitioner in the connected writ petition has vehemently controverted the arguments addressed by the learned counsel for the petitioner and has argued that the sale in question has taken place through Mutation No‑6343 sanctioned on 30‑11‑1988 for a sale price of Rs.4,000 and this sale has been made by Ghularn Nabi, therefore, the vendee is estopped to deny the title of Ghulam Nabi by saying that he has already sold the land in question to Suleman from whom the vendee is now claiming the sale on the basis whereof objection of limitation is being raised. Learned counsel has further argued that the vendee is not entitled to claim any compensation for raising of any construction inasmuch as it was not raised to the knowledge and notice of the pre‑emptor and at any rate if at all he has raised some constructions he may remove the same but the pre‑emptor cannot be burdened with the payment of Rs.40,000 for assessment whereof no evidence has been led by the vendee petitioner. Learned counsel has further contended that the decree having been suspended by the learned first appellate Court, the pre‑emptor was within his right to deposit the decretal amount within a reasonable time for which deposit he applied immediately after decision of the appeal from the first appellate Court but these applications have illegally been refused by the two learned Courts below which order is patently illegal and without lawful authority and therefore the pre emptor respondent cannot suffer by act of the Court hence it cannot be said that the respondent cannot be heard as a respondent in this civil revision or as a writ petitioner. Alternate plea of the respondent is that the vendee himself has challenged the whole decree which is sub judice in this civil revision and therefore while deciding the civil revision this Court is competent to grant time in case the decree is maintained. There is absolutely no bar on the powers of this Court to pass an order for deposit of the decretal amount, particularly when the vendee himself has obtained a stay order against the decree passed in the suit from this Court.

4. I have considered the arguments addressed by both the learned counsel for the parties and have also gone through the record. Documents Exhs. Dl, D2 and D3 are unregistered documents, therefore they do not constitute sale for the purposes of holding that the possession of the vendee was under the sale. The pre‑emptor is not a party to these documents and therefore any admission contained in these unregistered documents cannot be A used as evidence against the respondent. Case of the petitioner himself is that he purchased the land in question from Ghulam Nabi through mutation sanctioned on 30th November, 1986 hence it cannot be said that he was in possession of this land under the sale prior to 30‑11‑1986. The petitioner cannot be allowed to approbate and reprobate. The suit having been filed within one year w.e.f. the date of attestation of mutation hence is within time. Arguments of the learned counsel for the petitioner to the effect that the suit stood dismissed due to the non‑deposit of the decretal amount is also misconceived. Established law on the point is that in case a decree is suspended in appeal, the decretal amount can be deposited after decision thereof within a reasonable/unexpired time in case no direction is given by the learned appellate Court. See case of Ghulam Haider and others v. Mst. Raj Bharri and others (PLD 1988 SC 20). In the case in hand, the respondent pre emptor was well within his rights to deposit the decretal amount within a reasonable time but the same was illegally refused. Orders passed by both the lower Courts below in this behalf are illegal and without a lawful authority. The pre‑emptor therefore cannot suffer by act of the Court in view of the law laid down in a judgment amongst others reported as Malik Barkat Ali Dogar v. Muhammad Shafi and others (PLD 1990 SC 60). Even otherwise, the lis is still pending in revision before this Court and hence even this Court can grant time to deposit the decretal amount in case the decree is maintained. Arguments of the learned counsel for the petitioner with regard to the making of Talabs is also misconceived. There is ample evidence on record to prove that Talabs in accord with the principle of Islamic Law of Pre‑emption have been made in this case and the same has been held concurrently by the two learned Courts below. Learned counsel for the petitioner has not been able to point out any misreading or non‑reading of evidence regarding this issue and has also not been able to point out any legal infirmity with the findings of fact recorded by the two learned Courts below on the question of Talabs, consequently, findings of the two learned Courts below on the question of Talabs is based on valid and lawful material and reasons and hence .the same is not liable to be interfered with. Arguments of the learned counsel for the respondent regarding payment of the compensation for construction, however, have substance. It is established on record that the vendee petitioner has raised a construction on the land in question to the knowledge and notice of the pre‑emptor. There is evidence about the value of the construction raised by the petitioner, even the respondent's learned counsel admitted that construction is there but the value of the construction is not more than ten thousands and this is the amount which the respondent is ready to pay by way of compensation to the vendee, petitioner. Learned trial Court has based his findings on the issue of compensation on the basis of evidence produced in the case. D.W.1 has stated that an amount of Rs.40,000 has been spent on the construction of the house and the defendant has constructed four rooms and has also got. installed electricity connection in the house. This part of his statement has not been, challenged in cross‑examination. Similarly, D.W.2, .has made a similar statement and he was also not cross‑examined regarding this fact. Similar is the position with regard to the statement of D.W.3. P.W.1 the respondent in her cross‑examination had admitted that the defendant has done some work in the house and has installed a water tank in the house, electricity bill and the receipt of house tax are also on record, which are Exhs.D5 to D

7. In her statement P.W.1 has further stated that at the time of sale there was only Kacha Warand, at site hence it stands established that the petitioner has raised construction over the land in question, value whereof is Rs.40,000 inasmuch as the evidence produced by the petitioner in this behalf has not been rebutted. Learned firs. appellate Court has set aside the findings recorded by the learned trial Court on the grounds that there are some discrepancies amongst the statements of witnesses with regard to the expenses borne by the petitioner on construction i.e. 40,000, 42,000 and 45,000 and that the mason or the labourers have not been produced and further that within a short span of two months Rs.40,000 could not have been spent on the construction. All the reasons given by the learned Additional District Judge are conjenctural and flimsy. Minor differences of the total expenses on the construction as well as the factum of non‑production of mason or labourers is not sufficient ground to reject the evidence produced by the petitioner. In fact learned Additional District Judge has not at all discussed the evidence produced by the petitioner. Even Sub Divisional Officer who made a report regarding the value of the construction as being Rs.36,700 during the course of the first appeal before the learned first appellate Court also supports the contention of the petitioner that the cost of the construction raised by him is not less than 40,

000. It may be mentioned here that the local Commissioner was appointed by the District Court on the application of the respondent herself but this report has also been disagreed by the learned Additional District Judge without any lawful and sufficient ground by holding that exact date of construction has not been given by the Sub Divisional Officer. It is clear therefore that the findings of fact on the issue of cost of improvements and payability thereof have illegally been set aside by the learned first appellate Court, consequently, findings of the learned Additional District Judge on the issue of compensation for improvements over the land in question are set aside and the judgment of the learned trial Court on this issue is restored and it is held that issue No.6 has been correctly decided by the learned trial Court. Resultantly, this civil revision is partly accepted and hence judgment and decree passed by the learned first appellate Court to the extent of payment of the decretal amount is set aside and maintaining rest of the judgment and decree passed by the learned appellate Court, judgment and decree passed by the learned trial Court is restored and the suit is decreed on payment of Rs.44,

000. The plaintiff‑respondent is directed to deposit an amount of Rs.44,000 as a sale price minus it 1/5th amount, if not already deposited by her on or before .2‑1‑1993. In case of failure to deposit the amount within the stipulated period, the suit shall stand dismissed with costs throughout. The connected Writ Petition No.7002/91 is accepted and the orders impugned therein are declared to be illegal and without a lawful authority and are set aside. Parties to bear their own costs. A.A./F‑61/L Order accordingly.