YOUNIS ALI Versus ZAHOOR AHMED
The land measuring 173 kanals was transferred by sale in favour of Fateh Muhammad and others, vendees/petitioners through Mutation No.655 attested on 26‑6‑1973 for a sale consideration of Rs.40,000. Zahoor Ahmad respondent filed a suit for pre‑emption on 26‑6‑1974 on the basis of being owner in the estate. In the plaint, it was admitted that defendants Nos. 1 to 4 are the owners in the estate but as they had associated with them other vendees who were strangers even the said vendees had lost their right on the basis of sinker.
2. The suit was contested. The petitioners Nos. 1 to 8, 11 to 16 filed a joint written statement while petitioners Nos. 9 and 10 contested the suit through a separate written statement. In the aforesaid written statement, it was contended that the suit was not within time as the petitioners/vendees had taken physical possession of the land before the formal attestation of mutation dated 26‑6‑1973; that the plaintiff/respondent did not have superior right of pre‑emption qua the vendees; that the sale was divisible and that the sale price as actually fixed and paid was Rs.40,000.
3. From the pleadings of the parties, the following issues have been framed:‑
Issues
(1) Whether the suit is not within time because the vendees had taken possession of the land much before mutation of sale? OPD
(2) Whether the plaintiff has superior right of pre‑emption? OPP
(3) Whether the sale price of Rs.40,000 was fixed in good faith or paid? If not, what was the market value of the land at the time of sale? OPD
(4) Whether sale of part of the suit‑land by defendants Nos. 12, 13 in favour of defendant No. 14 is collusive or ineffective on the right of the plaintiff? OPP
(5) Whether defendant No.14 has equal right to that of the plaintiff? If so, its effect? OPD
(6) Relief.
4. After recording evidence produced before it, the learned Trial Court vide judgment and decree dated 3‑9‑1983 decree the suit in favour of the respondent/plaintiff against the payment of a sum of Rs.40,000 a pre‑emption money. Upon Issue No. 1, the learned Trial Court came to the conclusion that the limitation is to be determined from 26‑6‑1973 the date of attestation of mutation and as such the suit brought on 26‑6‑197 was within time. Upon Issue No.2, the respondent was found to have superior right of pre‑emption and despite the fact, that son of the petitioners/vendees had improved the status and could claim equal right of pre-emption with the respondent but as their vendees were strangers, the principle of sinker shall apply. It was also held in the context that the sale transaction was not divisible. Upon Issue No.3, it was held the Rs.40,000 was the actual price paid; Issue No.4 was found to be not very material view of the findings upon Issue No. Similarly, Issue No.5 was held to have become redundant.
5. Feeling aggrieved of the judgment and decree dated 3‑9‑1983, the petitioners/defendants preferred an appeal which was dismissed vide judgment and decree dated 27‑6‑1984.
6. The learned counsel for the petitioners appearing in support of the petition raised the followings contentions:‑
(i) that the learned lower Courts have not adverted to the legal aspect that the petitioners/vendees could improve their status even after the institution of the suit under section 21‑A of the Punjab Pre‑emption Act. It was submitted that father of petitioners Nos. 1 to 4 had died before the institution of the suit and improvement status through inheritance should have been given its due recognition. Similar claim was made in respect of petitioners Nos. 12 and 13 whose father Ghulam Muhammad had died.
(ii) that the mutation of sale subject -matter of pre‑emption was entered on 4‑12‑1972. The statement of parties before the Revenue Officer were recorded on 5‑12‑1972, the necessary ingredients of sale having been completed on or before 5‑12 1972 i.e. the payment of sale price and delivery of possession, the starting point of limitation should have been calculated from 5‑12- 1972. It was contended that the mere fact that the formal attestation of the said mutation was postponed till 26 6‑1973, this date could not be the starting point of limitation and the suit filed on 26‑6‑1974 was patently time‑barred. It was also stated that the evidence upon this issue has been misread by both the learned lower Courts.
(iii) that both the learned lower erred in returning the regarding the divisibility of the transaction of sale. He elaborated that different petitioners purchased different parcels of land and therefore, it was not correct to hold that just because the sale transaction was evidenced by one mutation, it was not divisible.
It was further contended that as the sale was divisible, the principle of linker would not apply and each set of vendees would be entitled to resist the pre‑emption suit upon the strength of his own qualification, and
(iv) that important witnesses such as Sardar Ali D.W.2, Abdul Khaliq Lambardar D.W.4 and even the statement of P.W.3 respondent himself was not read in the proper perspective, as even these witnesses had proved divisibility of sale.
7. On the other hand, the learned counsel for the respondent submitted that the contention that possession has been delivered on 5‑12‑1972 and that the sale was completed on the said date is misconceived. He submitted that possession under sale implied possession under a completed sale. Firstly, the delivery of possession was not proved on the record and secondly, the possession being not under the sale would not be the terminus quo for the starting point of limitation. Reliance was placed upon the cases of Abdul Karim v. Fazal Muhammad Shah (PLD 1967 SC 411), Muhammad Bakhah v. Zia Ullah and others (1983 SCMR 988), Muhammad Masood Khan Bhatti v. Met. Fatima (1987 SCMR 1206) and Sarwar v. Feroze Khan and another (PLD 1951 Lahore 169).
8. On the question of superior right of pre‑emption the learned counsel for the respondent emphatically stated that both the learned lower Courts, upon the strength of evidence, have arrived at a concurrent finding of fact that: (a) the respondent being an owner in the village had superior right of pre‑emption, (b) the sale was an indivisible transaction and (c) as admittedly even those vendees who claimed ownership in the village had associated vendees who were total strangers, the principle of sinker would apply with full force. The learned counsel for the respondent place reliance upon the cases of Abdullah and 3 others v. Abdul Karim and others (PLD 1968 SC 140) and Allah Yar and others v. Ghulam Jeelani and others (1996 SCMR 662).
9. The arguments of the learned counsel for the parties have been heard and record perused.
10. In order to challenge the concurrent findings of fact upon the ground of limitation, reference was made by the petitioners to the statements of D.W.2, D.W.3, D.W.4 and D.W.5 to submit that all these witnesses had stated the delivery of physical possession on 5‑12‑1972. The evidence on the record including the statements of the above witnesses and the documents such as Exh.P.1 to Exh.P.3 have been perused. The complete effect of the said evidence has been discussed herein before by the learned Trial Court upon its discussion on Issue No.1. The finding of the learned Trial Court upon this issue is concurred with by the learned Appellate Court and is approved and endorsed. It has been rightly concluded by both the learned lower Courts that the effect of Khasra Girdawari paced on the record would show that the possession of the petitioners/vendees was recorded from Kharif 1973 which is after the date of attestation of mutation i.e. 26‑6‑1973. Both the learned lower Courts have drawn an adverse presumption from the non‑production of Khasra Girdavari relating to Rabi 1973 by the petitioners as that would have been the best evidence to prove the possession of the petitioners to be obtained on or before 5‑12‑1972. The learned lower Courts were correct in holding that there was neither any documentary nor any oral evidence on the file to prove the petitioners version that they had obtained physical possession of the suit‑land on or before 5‑12 1972 and as such limitation was correctly held to commence from 26‑6‑1973, the date of attestation of mutation Exh.P.1. No exception can be taken to this finding in this revision.
11. Upon the question of superior right of pre‑emption of the respondent, it also necessarily involves the question regarding divisibility of the sale and sinker. The non reading or misreading attributed to the learned lower Courts in respect of the evidence of D.W.2 Sardar Ali, D.W.4 Abdul Khaliq and P.W.3 Zahoor Ahmad respondent himself is also misplaced. Upon this issue also, both the learned lower Courts have conducted a thorough appreciation of the evidence on the record. From the facts on the record, it is undisputed that the respondent/plaintiff is the owner in the estate. The petitioners/defendants Nos. 1 to 4 are also found to be the owners of the estate having earlier purchased a piece of land in the village. The improvement of status by petitioners Nos. 12 and 13 upon the death of their father Ghulam Muhammad has also been acknowledged. However, the fact that remains un-contradicted on the file is that the petitioners/co‑vendees Nos. 5 to 11 are complete strangers. In this view of the matter, relying upon Allah Yar's case (supra), it is held that the principle of sinker shall squarely apply and shall be destructive for the case of the petitioners.
12. The emphasis laid by the learned counsel for the petitioners upon the fact that different sons of petitioners/vendees has purchased distinct parcels of land of which, separate possession was delivered to each petitioner/set of petitioners, suffice it to say that the test of divisibility of sale has not been adequately met by the petitioners. Firstly, the shares of the different vendees have to be specified definitively and it has to be positively shown by cogent evidence that the different vendees had contributed proportionately towards the sale price. It is also, by now a settled law, that mere recital in a document as to the divisibility of the transaction is not considered to be a conclusive proof of the same. A perusal of the mutation of sale under pre‑emption would show that the sale consideration amounting to Rs.40,000 has been recorded to have been paid in lump sum. There is no mention of contribution by different vendees/set of vendees proportionately towards the payment of sale price.
13. The statement of Abdul Aziz Patwari D. W.3 also does not advance the case of the petitioners. In cross‑examination, he categorically stated that:‑
Even this statement is not sufficient to meet the yardstick for proving the divisibility, no definite and specific contribution of sale price has been proved. The conflict and discrepancy in the statements of different witnesses for the petitioners in this regard has been duly considered by the learned lower Courts.
14. Directed as it is against the concurrent findings of fact of both the learned lower Courts, this civil revision shall of course be limited in its scope. The entire evidence on the record has been re‑examined with the assistance of the learned counsel for the petitioners to discover, if there really has been any misreading or non‑reading of any evidence on the record. Despite the exercise, no infirmity or illegality has been found in both the impugned judgments. The civil revision is devoid of merit and is hereby dismissed. No order as to costs.
H.B.T./Y‑18/L Revision dismissed.