ABDUL MAJEED Versus MOMINA SYEDA FATIMA
This judgment shall decide R.S.A. No.58 of 1984 and Writ Petition No. 1312 of 1981 as they were ordered to be heard together vide order, dated 21‑3‑2000.
2. The appellants purchased land measuring 18 Kanals situate in village Rangeelpur, Tehsil and District Multan from Saeeduddin Naqvi vide Mutation No.60 attested on 31‑7‑1973. On 29‑7‑1974 the respondent filed a suit for possession of the said suit land by pre‑emption. Her case was that she was the daughter of the said vendor. It may be stated here that the respondent was a minor at the time of institution of the suit and the same was filed through her mother Saeeda Begum as her next friend. Later it turned out that the appellants had sold the land measuring 5 Kanals, 18 Marlas to one Muhammad Sharif son of Qutab Din vide Mutation No.62 attested op 6‑8‑1973. The said Qutab Din was impleaded as defendant No.3 and amended plaint was filed on 4‑9‑1973. It also reveals that the appellant No. l had mortgaged land measuring 7 Kanals and 10 Marlas to one Mst. Khurshidan vide Mutation No.61 attested on 31‑7‑1973. One Muhammad Shafi son of Mahaddi had filed a suit for possession by pre‑emption in respect of the subsequent of 5 Kanals and 18 Marlas of land by the appellants in favour of said Muhammad Sharif. The said Muhammad Shafi and Mst. Khurshidan were also impleaded as parties and amended plaint was filed on 12‑4‑1976. The suit was contested by the appellants as well as the said subsequent transferee and the said pre‑emptor. It was objected that the suit is collusive and has been got filed by the vendor for his own benefit. It was also objected that the suit is barred by time. Issues were framed. Evidence of parties was recorded. The suit of the respondent was decreed by the learned trial Court vide judgment and decree, dated 13‑11‑1982 subject to deposit of Rs.11,700 and making her liable to redeem the mortgage after payment of Rs.10,300. Against this judgment and decree only the appellants filed an appeal and I find that the aforementioned persons subsequently added in the array of defendants were not impleaded therein. The appeal was heard by a learned Additional District Judge, Multan who dismissed the same on 14‑3‑1984.
3. Meanwhile, the suit filed by the said Muhammad Shafi in respect of the said subsequent sale had been made over to the Collector, Multan after amendment of para. 25 of M.L.R.
115. The said Collector proceeded to decree the suit of said Muhammad Shafi (respondent No.3 in Writ Petition No.1312 of 1981) on the basis of a conceding statement made by the said subsequent vendee vide judgment and decree, dated 13‑9‑1977. Against the said judgment and decree of the Collector the petitioner in the writ petition (respondent in the R.S.A.) filed an appeal which was heard by a learned Additional .Commissioner (Revenue), Multan Division. The appeal was decided vide judgment, dated 1‑12‑1977. The learned Additional Commissioner found that the suit filed by the petitioner against the original sale is pending in a Civil Court and in case she succeeds in the said suit the very sale in favour of said Muhammad Sharif, respondent subject‑matter of the suit filed by the said Muhammad Shafi shall have no effect. He thus, made the decree passed by the Collector subject to the result of the suit. The said Muhammad Shafi, respondent then filed a revision petition which came up before a learned Member, Board of Revenue in the presence of the said subsequent vendee but in the absence of the writ petitioner. The said subsequent vendee made a statement conceding the revision petition and it was allowed vide order, dated 25‑6‑1980. The appellants then filed a review petition. The learned Member disposed of the review petition observing that the petitioner being the minor daughter of the vendor, the presumption is that the suit is collusive and proceeded to dismiss the review petition on 7-8‑1980. Writ Petition No. 1312 of 1981 has been filed against the said orders of the learned Member, Board of Revenue. .
4. Learned counsel for the appellant in the R.S.A. contends that the respondent being a minor daughter of the vendor, it shall be presumed that the suit was filed for the benefit of the vendor. Further contends that the suit was barred by time as according to the learned counsel the possession was taken over by the appellants under the original sale prior to the attestation of mutation. Learned counsel for the respondent contends that there is no such presumption that the suit filed by a minor child of the vendor is for the benefit of the vendor. Further contends that evidence on record belies the plea of the appellants that they had taken possession earlier than attestation of mutation. The learned counsel in support of the writ petition argues that the learned Commissioner had passed the judgment in perfect accordance with law as the subsequent sale was subject to the result of the suit filed against the original sale by the writ petitioner. Learned counsel for Muhammad Shafi, respondent No.2, in the writ petition has tried to support the orders of respondent No. 1.
5. I have gone through the record of the learned trial Court as also the copies of the record appended with the writ petition, with .the assistance of the learned counsel for the parties. In support of his first argument learned counsel for the appellants relies on a portion of the statement of P.W. Bakhtiar Abbas, the attorney of the next friend of respondent which is as follows:‑‑--------
(Ye dawa nabalgha ki walda Rafiqah nai kerwaya)
Learned counsel insists that this statement mould be read as an admission that the suit was filed for the benefit of the mother of the respondent. I am afraid the said interpretation of the said piece of evidence is not possible in the overall state of evidence on record. All that the said statement means is that the suit was filed by the next friend of the minor. I may state here that not even a slightest suggestion was given to this witness that the suit has been got filed by the vendor for his own benefit which is the plea of the appellants. The law as it then was, gave a right of pre‑emption to the collaterals of the vendor. It has never been presumed that a suit filed by a minor child of the vendor or even his wife is to be presumed to be collusive or for the benefit of the vendor even if it was to be proved that the litigation was financed by the vendor. In the absence of any evidence to the effect that the suit has not been filed for the benefit of the minor child matter contrary was to be presumed i.e. that the suit was bona fide. Reference to be made to the cases of Imam Ali Shah v. Muhammad Sharif Khan 1976 SCMR 362, Ruqaya Bibi and others v. Abdul Majid 1986 MLD 534 and Lal Din v. Allah Ditta PLD 1967 Lah. 703. I, therefore, find no force in the said arguments of the learned counsel for the appellants.
6. In support of his second argument that the suit was barred by time learned counsel for the appellants refers to a copy of Report No.804, dated 28‑7‑1973 of Roznamcha Waqiati which is on record as Exh.D.l. According to the learned counsel it was on this date i.e. 28‑7‑1973 that the possession was delivered upon the payment of consideration. However, this plea of the appellants is falsified by their own document which is a receipt for payment of consideration and is on record as Exh.D.2. According to this document the consideration was paid on 1‑8‑1973. Thus, even if one was to go by the arguments of the learned counsel for the appellants that the possession was delivered simultaneously with the payment of the consideration then according to the document Exh.D.2 the possession was so delivered on 1‑8‑1973. The present suit having been filed on 29‑7‑1974 is thus, well within time. Be that as it may, it is a matter of record that the land was being cultivated by a tenant and as such the Rule of limitation prescribed by section 30 of the Punjab Pre‑emption Act, 1913 would be applicable and the suit having been filed within one year of the attestation of mutation cannot be held to be barred by time.
7. Coming to the writ petition I find that the learned Commissioner had passed a judgment on 11‑2‑1977 (Annexure "C" to the writ petition) in perfect accordance with. law that the very original sale being the subject matter of the suit filed by the writ petitioner, any subsequent sale as to part of or the whole of the suit land was to be subject to the result of the said suit. The learned Commissioner very rightly made the decree passed by the Collector in favour of Muhammad Shafi, respondent No.3 in the writ petition subject to the result of the suit filed by the writ petitioner. The suit stands decreed by the learned trial Court and the said decree stands affirmed by the learned First Appellate Court and as such the subsequent sale in favour of Muhammad Sharif son of Qutab Din in respect of 5 Kanals, 18 Marlas of suit land vide Mutation No.62 attested on 6‑8‑1973 being subject to the result of the suit‑filed by the writ petitioner, is of no effect
8. In view of the above discussion I dismiss R.S.A. No.58 of 1981 and I do find that the impugned orders passed by the learned Member, Board of Revenue are without lawful authority. I allow Writ Petition No. 1312 of 1981 and declare the impugned orders of respondent No.l to be without jurisdiction and without lawful authority and set aside the same. The result would be that the judgment, dated 1‑12‑1977 of the learned Additional Commissioner (Revenue), Multan, dated 11‑2‑1977 shall hold the field.
Commissioner (Revenue), Multan, dated 11‑2‑1977 shall hold the field. Costs of the R.S.A. shall be borne by the appellants.
H.B.T./A‑84/L to Appeal dismissed.