Vide Mutation No.194 attested on 24-8-1995, the respondents purchased suit-land for a consideration of Rs.2,00,000. On 8-11-1995 the petitioned filed a suit for possession of suit-land by pre-emption. According to him, the land had actually been sold for Rs.1,00,000. He claims to be a Shafi Skairk, Khalit and Jar. Performance of talbs was pleaded. The respondents filed a written statement denying the said allegations and asserting that the land had, in fact, been purchased for Rs.2,00,000. Following issues were framed by the learned trial Court:--
(1) Whether the plaintiff has superior rights of pre-emption qua the vendees/defendants? OPP.
(2) Whether ostensible sale price was not fixed and paid in good faith, if so, what was the market value of the suit property at the time of sale? OPP.
(3) Whether the plaintiff has waived his right of pre-emption through participating in the sale? OPD.
(4) Whether the plaintiff is estopped by his words and conduct from filing this suit? OPD.
(5) Whether the defendant has made improvements over the suit property, if so, to what extent, in case the suit is decreed, he is entitled to recover the same? OPD.
(6) Whether the defendants incurred incidental charges, if so, to what extent? OPD.
(6-A) Whether the plaintiff has fulfilled the pre-requisites of Talb? OPP.
(7) Relief.
Evidence of the parties was recorded. The learned trial Court, vide judgment and decree, dated 25- 9-2001, found issue No.1 in favour of the petitioner. Under issue No.2, it was held Rs.2,00,000 had been actually paid as the price of the land. Issues Nos.3 and 4 were not pressed. Issue No.5 was answered against the respondents. Under issue No.6 Rs.12,007 were determined as incidental charges. Issue No.6-A was answered against the petitioner. On the basis of this finding, the suit was dismissed. A first appeal filed by the petitioner was dismissed by a learned ADJ, Jhang, holding camp at Shorkot, on 18-5-2002.
2. Learned counsel for the petitioner contends that both the learned Courts below have taken an erroneous view in the matter of the making of Talb-i-Muwathibat by the petitioner by holding that since he made the Talb-i-Muwathibat after the sale but before the attestation of mutation, the Talb-iMuwathibat is not valid. Learned counsel for the respondents, on the other hand, supports the impugned judgments an decrees by asserting that for purposes of Talb-i-Muwathibat the sale gets completed at the time of attestation of mutation and it was thereafter that the petitioner could have made the Talb-i-Muwathibat. He relies on the case of Tajul Mulk v. Mst. Zaitoon Bibi and 3 others (PLD 1994 SC 356). He also refers to the provisions of the Punjab Preemption Act, 1991 in comparison to section 54 of the Transfer of Property Act, 1882, to demonstrate that the sale has been defined differently in the said two laws.
3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. The copy of the mutation in question is on record as Exh.P.7 and Exh.D.I. I find that the mutation was entered on 9-8-1995 and it is recorded in the column No.14 that Muhammad Azeem has stated that he sold away the suit-land to the vendees mentioned in column No.8 for Rs.2,00,000 and has delivered possession. The mutation fee is recorded to have been paid vide receipt, dated 17-8-1995. The mutation was taken up by the revenue officer on 24- 8-1995 and attested. According to the order of the revenue officer, both the parties appeared before him and admitted the factum of sale, the payment of price and delivery of possession. Now under section 42 of the Punjab Land Revenue Act, 1967, a person who has acquired any right in land by any means is required to report the matter to the Patwari who then takes further proceedings in the matter.
4. Now according to para. 4 of the plaint the petitioner came to know about the sale on 18-8-1995 when he aiongwith his nephew Khan Baig was getting the land in Square No.12 sprayed.
Muhammad Ashraf came, as he required the Spray Machine and Zulfiqar respondent started ploughing the suit-land with a Tractor and upon the asking of the petitioner he informed him about the sale and he immediately made the talb.
5. Now the learned Courts below have opined that under the Punjab Pre-emption Act, 1991, the right of pre-emption accrues on sale of immovable property and limitation is to start from the date of attestation of mutation and as such prior to the attestation of mutation, there is no sale and as such a talb cannot be made prior to the said event. The learned ADJ has discussed the matter in some more detail. According to his reading of section 30 of the Punjab Pre-emption Act, if the sale is completed by attestation of mutation, then a pre-emptor will announce to exercise his right of pre-emption from the date of attestation of mutation and not from the completion of requirements of given in the definition of sale. He has concluded that since the mutation was sanctioned on 24- 8-1995, the right to announce the right of pre-emption accrued to the petitioner on 24-8-1995 and not on 18-8-1995.
6. Now in my humble opinion, both the learned Courts below have deliberately misconstrued the legal position which stands established since decades. A mutation by itself is neither a document of title nor is even a evidence of title. Ai stated by me above, the process of mutation starts at a point of time when a transaction of transfer of property has been effected. The one or the other party to the transaction reports the matter to the Patwari who makes a report and then enters the mutation. As noted by me above, in the present case, the Patwari has noted that transaction has been reported to him by the said Muhammad Azeem and with a further statement that possession has been delivered. Section 2(d) of the Punjab Preemption Act defines sale to mean permanent transfer of ownership of an immovable property in exchange for a valuable consideration. Some transactions then have been included and some excluded from the said definition. Now the said definition clearly shows that the sale is complete when a permanent transfer of ownership of itnmovable property is effected in exchange for a valuable B consideration. In the present case, this transfer was effected at a point of time before the matter was reported to the Patwari. Now section 30 of the Punjab Preemption Act, has no nexus with. The factum of sale itself. It provides limitation and the starting point of limitation which is four months from the date of registration of the sale-deed, attestation of mutation or when there is neither a sale-deed nor a mutation them from the day the vendee take physical possession of the property. Clause (d) of section 30 deals with a situation not covered by any of the caluses (a) (b) or (c). The said judgment in the case of Tajul Mulk relied upon by the learned counsel for the respondents as also by the learned ADJ deals with the question of limitation for filing pre-emption suit and not the definition or manner of a sale. The matters are further clarified by section 5 of the said Act of 1991 which states that the right of pre- emption shall arise in case of sale of immovable property. Section 13 which defines Talb-i- Muwathibat does not talk of a registered sale-deed or a mutation. It states that Talb-i-Muwathibat as defined in explanation-I to subsection (1) of section 13 of the Punjab Pre-emption Act, 1991, shall be made by a pre-emptor when the fact of sale comes within his knowledge through any source. I, therefore, do hold that the sale as defined in the said law had been completed before 18-8-1995 when the petitioner made the Talb-i-Muwathibat.
7. Shahadat Khan petitioner made a statement as P.W.1 in line with the pleadings in the plaint.
Zulfiqar appeared as D.W.I. He did not deny that the petitioner had not met him in the manner stated by him and he informed of the sale. It will be interesting to note here that it was statement of Zulfiqar D.W.1 himself that the petitioner was aware of the sale and he states that the possession was taken over on 9-8-1995 which fact, of course, has not been proved on the record.
8. For the reasons stated above, the impugned judgments and decrees do fall within the mischief of section 115, C.P.C. And cannot be sustained. The civil revision accordingly is allowed. The impugned judgments and decrees passed by both the learned Court below are set aside and the suit of the petitioner is decreed subject to deposit of a sum of Rs.2,12,007 in the trial Court on or before 31-5-2004. In case the petitioner fails to make the said deposit after adjustment of any amount already deposited with the trial Court, on or before the said date, his suit shall stand dismissed with costs throughout. At the moment, the parties are left to bear their own costs.