JUMA KHAN vs BIBI SAHIBA and others
The petitioner, an unsuccessful plaintiff-pre-emptor, filed a petition for leave to appeal against a Peshawar High Court judgment that dismissed his second appeal regarding a pre-emption suit. The core legal question was whether a sale of land, reported to the Patwari within the limitation period but attested via mutation after the limitation period, could be considered complete for the purposes of pre-emption. The petitioner argued that the sale was only complete upon the attestation of the mutation, which occurred after the limitation period had expired. The Supreme Court held that the sale was complete on the date it was reported to the Patwari, as a finding of fact had been recorded to that effect. The Court affirmed that a sale of immovable property does not require mutation to be complete, as it can be effected orally. Consequently, the Court refused leave to appeal, determining that no substantial question of law existed. The key principle established is that the completion of a sale of immovable property is not contingent upon the attestation of a mutation order by a Revenue Officer.
- Is the completion of a sale of immovable property dependent upon the attestation of a mutation order by a Revenue Officer?
- Can a sale of immovable property be effected orally without a formal mutation?
ORDER
1. ' SHAFIUR RAHMAN, J.-- The petitioner, an unsuccessful plaintiff-pre-emptor, seeks leave to appeal against the judgment of the Peshawar High Court dated, 23-7-1983 whereby a second appeal filed by him challenging the dismissal of his suit in first appeal was dismissed.
2. ' The petitioner pre-empted a sale of 60 Kanals of land in favour of respondents Nos, 2 and 3 which took place on 2nd of January, 1973. The vendees took up the plea that they had sold the land purchased by them in favour of respondent No,1 in recognition of her superior right of pre-emption.
3. The superior right of pre-emption of respondent No,1 was not challenged. What was challenged was that the sale reported to the Patwari on 1-10-1973 within the period of limitation was not in fact complete and a sale within the period of limitation, for the mutation in respect of it was attested on 18-9-1974 long after the expiry of the period of limitation. The District Judge in first appeal examined this aspect of the case and held that the sale had taken place within the oeriod of limitation and the petitioner stood on account of it non-suited.
4. ' The learned counsel for the petitioner has contended on the strength of decisions in constitutional petitions challenging the entries in the revenue record that a mere report to the Patwari does not clothe anyone with any title or interest in immovable property. He has relied on Ghulam Ahmed v.
5. Muhammad Sarwar 1968 SCMR 573 and Lal and others v. Mian Dad and another 1968 SCMR 842(2) in support of it. It is contended by him that the sale in favour of respondent No,1 would be deemed to be complete on 18-9-1974 when the mutation was, in fact, attested.
6. We find from the record that a finding of fact has been recorded that the sale was in fact complete on 1-10-1973. This would also appear from the proceedings that took place in mutation and appeal therefrom. Such sale was not required to take place by mutation alone. It could be oral as well. So the petitioner cannot claim that the sale was not complete on 1-10-1973, or was dependent for its completion on the attesting order of the Revenue Officer. There is no law point raised such as may require further examination by this Court. Leave to appeal is refused.