Mir AJAB KHAN Versus JAHANGIR KHAN
1. MUHAMMAD YAQOOB, J .---This appeal by leave of the court has been directed against the judgment/decree dated 13-3-2009, passed by the learned Single Bench of Chief Court Northern Areas, Gilgit, in a Civil Revision arising out of civil suit involving dispute of sale of ancestral property situated at Pakora Tehsil Ishkoman District Ghizer. Feeling aggrieved of the findings of the Chief Court, this leave to appeal has been preferred before the august Court.
2. The brief background of the litigation is that appellant/plaintiff filed a suit to enforce his right of prior purchase in the Civil Court Punial/Ishkoman against defendant/respondent No.2 his brother and one Jahangir Khan respondent/defendant No.1 resident of a different village, purchaser of the land under pre-emption with the contention that he has prior right of purchase as compared to respondent/defendant No.1. Defendants in respect of the suit land have secretly entered into a sale transaction without notice and knowledge of the plaintiff/pre-emptor. The factum of sale came to the plaintiff/pre-emptor knowledge in October, 2004, which is ineffective as against the rights of the plaintiff/ pre-emptor. Therefore he has presented the instant suit against the defendants to enforce his right of Prior Purchase on payment of one lac twenty thousand (120,000) the then prevailing market rates.
3. Although defendant No.1, does not deny the blood relations exists between plaintiff and defendant No.2, but his main contention is that plaintiff had viewed his prior right to purchase by not responding when he was requesting by the respondent/defendant No.2, to purchase the suit land. Therefore, respondent/defendant No.1, purchased the land in question from defendant/respondent No. 2 for Rs. 1,84,000 and executed a sale-deed, the same was registered on 21-10-2003 with Sub-Registrar Punial/Ishkoman. Therefore, the plaintiff/appellant lack cause of action and suit is also time-barred as such liable to be dismissed.
4. We have heard the arguments in pro and contra and have minutely gone through the record available on file.
5. The most important and crucial issue, upon which the parties have hotly contested, is the point of limitation.
6. Since the parties were fully aware and conscious on the point involved in the matter. It had not been prayed to the lower Courts to frame an additional issue on the point of limitation. However, the learned Single Bench of the Chief Court found that the parties had adduced sufficient oral as well as documentary evidence which seem to be enough to decide the point of limitation. Therefore, the learned Judge of the Chief Court framed additional issue as Issue No.10-A on the point of limitation and disposed of the revision petition on the sole point.
7. Right of Shuffa (pre-emption) being a feeble right, pre-emptor/ plaintiff seeking to exercise such right was bound to perform and fulfil its requirements meticulously. Any failing on the part of pre-emptor/plaintiff in performing his obligation would be at his grave risk and could turn out fatal to his success. The pre-emptor/plaintiff relied on his own statement with oral evidence of P. Ws.1 and 2 to prove the suit to be within time, whereas, the respondent/defendant No.1 has produced two D.Ws. along with registered sale-deed 18-10-2003, on which the transaction of the suit land has been taken place. The pre-emptor/plaintiff in his statement has clearly stated that he has got the knowledge of the sale transaction on September, 2004, when the road was constructed. While P.W. states that the Vendee/defendant No.1 has got the physical possession of the pre-empted land three years back in sowing season which can be presumed from the month of March to May, 2003. Testimony of plaintiff/pre-emptor witnesses are in conflict, suffered from discrepancies as such not reliable. Moreover, pre-emptor/plaintiff also failed to produce any evidence about his knowledge of a later date as claimed by him therefore the pre-emptor/plaintiff failed to prove the suit well within time.
8. So far as the relevant provision of limitation is concerned we refer section 29 of the Gilgit-Baltistan, Sub-Division, Prior Purchase Regulation, 1938, the same is herein re-produced:---
9. Section 29 of Prior Purchase Regulation, 1938 :--
10. "In any case not provided for the Article 10 of the first schedule for the Indian Limitation Act, 1908 (IX of 1908) the period of the limitation in a suit to enforce a right of prior purchase shall be one year."
11. The view point of counsel for pre-emptor/plaintiff is that if the suit is not within the period under Article 10 and section 29 of the Gilgit Baltistan, Sub-Division Prior Purchase Regulation, he is entitled to claim the limitation provided under Article 120 of the Limitation Act, 1908. The learned counsel placed his reliance on the case reported in 1989 MLD (Lah.) page 318 but the case referred has following points of difference from the case in hand discussed herein below:---
12. Firstly, that the facts of the case referred are not similar to the facts of the case in hand. Secondly, that there is no as such record available regarding the sale transaction i.e. sale-deed or entries in settlement record hence the above referred case has no relevancy with the case in hand. Moreover, there are two provisions of law which govern the question of limitation in pre-emption suits, first in section 29 of Gilgit-Baltistan, Sub-Division Prior Purchase Regulation 1938, and later one is Article 10 of the Limitation Act, 1908. According to both hereinabove mentioned laws the time period to claim pre-emption or enforce right of Prior Purchase is one year from the date of registration of sale-deed if any, in case it is not so registered within one year from the date of delivery of physical possession of the property sold. Thus, the instant case falls within the section 29 Gilgit-Baltistan Prior Purchase Act, 1938 and Article 10 of Limitation Act of 1908, resultantly there remains no room for the applicability of the Article 120 of Limitation Act, 1908.
13. As regard to the case in hand there is a registered sale-deed, which was executed between the defendants in the same Tehsil and District wherein pre-empted land is situated. Thus the pre-emptor cannot claim any other provision of limitation, except that provided specifically for the purposes of enforcement of right of pre-emption.
14. In the light of foregoing discussion we have not been able to find out any legal or factual infirmity in the judgment dated 13-3-2009, passed by the learned Single Bench of the Chief Court Northern Areas, Gilgit, and hereby dismissed this petition with no costs. File.
15. M.H./31/Glt. Petition dismissed.