ATTA MUHAMMAD Versus IMTIAZ ALI
Appellants purchased the land subject‑matter of this appeal vide registered sale‑deed, dated 5‑3‑1981, against an ostensible sale price of Rs.1.50.000. The sale was challenged by way of a pre‑emption suit filed by the respondent who claimed superior right being son of the vendor and co- owner in the estate. The suit was contested on grounds of limitation and tenancy. The learned trial Court decreed the suit vide judgment and decree, dated 19‑1‑1986 which was challenged in appeal and the same was dismissed vide impugned judgment and decree, dated 11‑7‑1987 passed by the District Judge, Layyah.
2. In terms of the divergent pleas following issues were framed:‑‑
(1) Whether the suit has not been properly valued for the purpose of court‑fee and jurisdiction? If so, with what effect? OPD.
(2) Whether the deficiency of court‑fee has not been made up in time? If so, with what effect? OPD.
(3) Whether the suit is barred y time? OPD.
(4) Whether the defendants are entitled to recovery expenses of registration, etc.? If so, to what amount? OPD.
(5) Whether the vendees have made improvement upon the land in question? If so, when to what extent and with what effect? OPD.
(6) Whether the plaintiff has superior right of pre‑emption qua the vendees/defendants? OPP
(7) Whether the ostensible sale price of Rs.1,50,000 was fixed in good faith or actually paid? OPD.
(8) In case Issue No.7 is replied in the negative, what was the market value of the suit land at the time of sale? OP Parties.
3. The learned trial Court decided Issues Nos. l to 3 in the negative and Issues Nos.4 to 7 in the affirmative. Before this Court, only Issues Nos.3 and 6 were only pressed A prayer was made to adduce additional evidence. i.e. relinquishment deed, dated 1‑11‑1977 (through C:M. No.710‑C of 2001) in terms of which according to learned counsel, for the appellants, the vendor had surrendered title and possession of the suit land ire favour of the appellants on the afore‑referred date. No tenable ground has been pressed for delay in producing this document. The application, therefore, is dismissed.
4. In support of this appeal learned counsel for the appellant submitted as under:‑‑
(i) That there is ample evidence to the effect that the appellant‑vendees were tenants of the suit land and both the learned Courts below have fallen in error in holding that appellant was lessee.
(ii) That the respondent‑plaintiff did not raise the plea in the plaint that the appellants were not tenants of the suit land, He in these circumstances could not go beyond .the pleadings
(iii) That the appellants had come into possession of the suit land much prior to the registered sale‑deed which was registered on 5‑3‑1981 and, therefore, the suit time‑barred. He further added that there is no waiver on a question of law and it can be raised at any time. He relied on a judgment of august Supreme Court reported in PLD 1985 SC 153.
5. Learned counsel for the respondent‑plaintiff on the other hand, defended the impugned judgment and made following submissions, ‑‑
(i) That no substantial question of law has been raised in this second appeal to warrant interference in the concurrent findings of fact arrived at by the learned lower Court below; and
(ii) that before the learned First Appellate Court the appellants had chosen not to press the issues other than Issue No.6 and he cannot be permitted to argue the appeal on remaining issues.
6. Both the learned counsel have confined their submissions on Issues Nos.3 and 6 alone. On Issue No.3 learned counsel for the appellants failed to refer to any piece of evidence on record to indicate that the appellants/vendees had taken possession of the suit land under the sale prior to the registered sale‑deed. The question of their being in possession of the suit land as tenants prior to the sale‑deed is a different question which would be gone into while discussing Issue No.6. The concurrent findings of. Issue No.3, therefore, do not warrant interference the same are hereby affirmed.
7. With regard to Issue No.6 there is no cavil to the proposition that a finding of fact arrived at by the learned trial Court and affirmed by the learned First Appellate Court cannot ordinarily be interfered except on grounds enumerated in section 100 of C.P.C. which reads as under:‑‑
"Second anneal.‑‑‑Save where otherwise expressely provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by a Court subordinate to a High Court on any of the following grounds, namely:‑‑
(a) the decision being contrary to law or usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law; '
(c) a substantial error or defect in the procedure provided by this Court or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑
8. The reasons advanced by the learned trial Court in deciding Issue No.6 in favour of respondent‑plaintiff are given at page 6 of the trial Court's judgment which are as under:‑‑
"Mere recital in the impugned sale‑deed that the defendants cultivated the land as tenants, does not make them tenants for the purposes of law under which the tenant has been granted the right of pre‑emption. It will be seen that the defendants's side has firstly been raising inconsistent pleas and secondly has been approbating and reprobating ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑
9. The learned First Appellate Court upheld the afore‑referred findings primarily on the same grounds and relied on a judgment of this Court reported in 1984 CLC 2950. It observed as follows:‑‑
"The entries made in copies of Khasra Girdawari Exh.P.2 and Exh.P.6 do not support the version of appellants. They have not been recorded as tenants upon the suit land. The appellants were thus lessees of the suit land in dispute for a fixed term of one year on payment of fixed premium money of Rs.3,000 and could not be deemed in law to be tenants in cultivating possession of the suit land for the enforcement of their right of pre‑emption."
10. Both the Courts below in arriving at the concurrent findings on issue No.6 have totally ignored material evidence on record and are not sustainable in law for the following reasons:‑‑
(i) Statement of D.W.1 is to the effect that vendees were tenants prior to the sale‑deed. This assertion was never challenged in, cross examination. Muhammad Ismail corroborated the afore‑referred statement. D.W.4 Shah Muhammad one of the vendees specifically stated that he was in possession since 8 years prior to the sale‑deed and used to give 'Batai share' as also lease‑money to the vendor. The learned Courts below merely relied on a stray sentence uttered by D.W.4 in cross‑examination wherein he stated that the lease money of suit land was settled at Rs.3,000 per annum. This singular sentence could not be taken as evidence to prove that appellants were lessees for a fixed period. Firstly, because this sentence cannot be read in isolation to his whole statement and other evidence on record. Secondly, D.W.4 Shahmond being an illiterate villager may not have known the distinction between the tenant and lessees. In villages, mostly these are synonymous terms unless of course there is a written lease deed fixing a period and price.
(ii) The plea of tenancy was taken at the earliest i.e. it was part of the written statement. The plea taken in written‑statement was in fact based on recital in the registered sale‑deed, Exh.P.3, which reads as under:‑‑
Mere recital in a registered sale‑deed is no conclusive proof of its correctness. However, if the plaintiff chooses to challenge a certain part of the recital in a registered sale‑deed and does not challenge the remaining part of the recital a presumption of truth would attach to that part which is not challenged particularly if there is other evidence on record in support of that part which is not challenged. In the instant case respondent‑plaintiff specifically challenged the ostensible sale price as given in the recital of the registered sale‑deed Exh.P.3 but did not challenge that part of the recital wherein it is written that the appellants/defendants were tenants of the suit land for the last 8/9 years prior to the registered sale‑deed. The entries made in a registered documents in the afore‑referred circumstances would be deemed to be correct, unless of course, those are rebutted by strong evidence to the contrary which in the instant case is lacking. This is in line with the law laid down by this Court in Pirla and others v. Noora and others (PLD 1976 Lahore 6) wherein at page 9 it was observed as under:‑‑
"Consequently the particulars inter alia of any admission of receipt of consideration in whole or in part made in the presence of the Registering Officer inscribed in the Certificate are facts, which are to be presumed under section 60 to have occurred as mentioned in for the certificate is admissible for the purpose of
To this may be added the authority of section 79 of the Evidence Act, which requires a Court to presume every document to be genuine which purports to be a certificate which is by law declared to be admissible in evidence of any particular fact. "
(iii) The reliance of both the Courts below on the judgment of this Court reported in 1984 CLC 2950 was misplaced as facts in the said case are distinguishable. In that case the claim of the plaintiff that he was a tenant was repelled and he was declared a lessee because there was a written lease deed of five years between him and the landlord followed by another written lease deed of one year. In the said case the written lease deed not only specified the, term but also lease money. In the instant case there was no written lease
(iv) Much stress has been laid by both the Courts on Exh.P.6 (Khasra Girdawari). This document is no conclusive evidence to indicate that appellants were not tenants. It shows that the vendor/landlord was not in possession of the land. The possession is shown to be that of irrigators". This has to be read alongwith Exh.P.3 (sale‑deed) wherein it is stated that the suit land was a T.D.A. land which vendor/landlord‑ had obtained under the "Abad Kari Scheme", that vide document No.1155 dated 5‑3‑1981 proprietary rights had been conferred on him, that he had sold the said land to Atta Muhammad and Shah Muhammad sons of Barkat Ali (appellants) who were cultivating the same as tenants for the last 8/9. years. In the afore‑referred circumstances the argument of the learned counsel for the appellants is plausible (it was their case before the Courts below as were), that since the vendor had yet to obtain proprietary rights in terms of the agreement with T.D.A. the appellants were not shown as tenants in the Revenue Record. The Khasra Girdawari has wrongly been accredited with truth. It is settled law that no presumption of truth is attached to Khasra Girdawari. This is in accord with the law laid down by a Division Bench of this Court reported in 1983 CLC 1868 and 1982 CLC
11. There is yet another aspect of the case. The appellants purchased the land as far as back as in 1981, and admittedly, they were in cultivating possession of the said land 8/9 years prior to the sale. One of‑the appellants stated in Court that vendor has sold out his entire land in this Mauza and plaintiff does not own any land there either as they have shifted to urban area. This was not controverted by the respondent‑plaintiff who was present in Court at the time of hearing of this appeal. Appellants are small land owners, who have built their homes and, hearths on this piece of land. It would be unfair to uproot them at this belated stage when the law of pre emption has undergone a sea‑change
12. For what has been discussed above, both the Courts below by I ignoring the legal evidence on record, have committed a substantial error which warrants interference in 2nd appeal‑The concurrent judgments and decrees i.e. of the learned trial Court dated 19‑1‑1986 and of the learned Appellate Court dated 11‑7‑1987 are hereby set aside and the suit is dismissed with no order as to costs.
Q.M.H./M.A.K./A‑278/L Appeal allowed.