' To reap the fruits of litigation expanding over a span of 23 years, which was contested by Manzoor Ahmad vendee-defendant (nor respondent of this civil revision), through a suit for the specific performance of a sale contract against his vendor all the way alone, a pre-emptor in the form of plaintiff-petitioner, namely Muhammad ' Yousuf came forward, in the last, to assert his claim of alleged right of pre-emption.
2. The history of first litigation, which is essential to comprehend so as to understand the controversy of the instant case is that a person by the name of Sharaf Din son of Muhammad Umar, was owner of agricultural lands in two Mauzas of Tehsil Sadiqabad and Rahimyar Khan.
Manzoor Ahmad, present respondent, entered into an, agreement with aforesaid Sharaf Din for the purchase of those lands on 14-4-1971. With regard to the lands of Mauza Chandrani, Tehsil Sadiqabad an amount to the tune of Rs.44,000 was fixed, while the bargain of sale transaction concerning the lands of Mauza Goth Dargahi was struck at Rs.40,000. Out of total amount of Rs.84,000 for the lands of these two Mauzas, Rs.60,000 were paid by the aforesaid Manzoor Ahmad, purchaser. As for the completion of the agreement of sale, the vendor was dilly-dallying, so Manzoor Ahmad (vendee) filed a suit for specific performance of contract on the basis of that agreement in the Civil Court. At last, vendor Sharaf Din appeared on 4-1-1975 and filed an application for recording of his statement (Exh.D.4). From the contents of the application, it is apparent that aforesaid Sharaf Din, vendor hadadmitted in para. No.2 of this application that the remaining amount of Rs.24,000 had been paid by Manzoor Ahmad to him, the receipt of which was executed and acknowledged by him in favour of the vendee by stating that nothing had remained to be paid by the vendee. So, the statement of Sharaf Din was recorded on 4-1-1975 by which, he had prayed to the Court to pass the decree in favour of Manzoor Ahmad, vendee. Along with that application, a compromise deed (Exh.D.5) was also presented to the Court, in which the date of final payment of the sale consideration was shown to be on 24th October, 1994. It was also noted that vendor had already made a statement before the Revenue Officers for entering and for attestation of a mutation in favour of Manzoor Ahmad, vendee. Ultimately, the decree was passed on 1-2-1975 by the learned Civil Court in favour of Manzoor Ahmad, vendee (vide Exh.D.3). To implement the aforesaid decree into the Revenue Record, an execution petition was filed in the year 1980 after the decision of appeal filed against the aforesaid judgment and decree. The version of the present respondent is that he had filed an application on 29-3-1980 in the learned Executing Court, for issuance of notice and warrant for possession against respondents Nos.4 to 9 (names entered into that petition). Abdul Hameed filed an objection petition before the learned Executing Court on 3-7-1980 (ExhD.14). When the Patwari had gone to serve the notice upon Abdul Hameed, the present petitioner, Muhammad Yousuf, was sitting in the company of aforesaid Abdul Hameed who after having got the notice of the decree, in favour of Manzoor Ahmad, had not shown or uttered any words of his intention to pre-empt the decreed sale. According to the respondent, Abdul Hameed was brother-in-law of Muhammad Yousuf, pre-emptor and Muhammad Yousuf had also appeared as a witness to support the objection petition filed by Abdul Hameed on 12-9- 1984 in the Executing Court and had got recorded his statement which was brought on record in the instant preemption suit as Exh.D.16.
3. At the conclusion of execution proceedings and after the dismissal of objection petition on 31-10- 1989, delivery of possession to the decree-holder, namely Manzoor Ahmad on 1-8-1996, and the registration of sale-deed on 25-7-1996, Muhammad Yousuf filed the instant suit for recovery of possession through pre-emption on 23-11-1996 in the Court of learned Civil Judge, Sadiqabad, claiming the basis of his right of pre-emption as "Shafi Jar" and "Shafi Khaleet". In the above mentioned pre-emption suit, the sale-deed registered on 25-7-1996 was claimed to be the cause of filing of the suit. After filing of the written statement, framing of issues, production of evidence, oral as well as documentary of the parties, the learned Civil Judge dismissed the suit on 19-11-1997.
The appeal filed against that judgment and decree of the learned Civil Judge was also dismissed by the learned District Judge, Rahimyar Khan on 3-7-1998. Hence, this civil revision.
4. Learned counsel appearing on behalf of the petitioner, at the outset, has challenged the findings on Issue No.1, which was framed with regard to the superior right of pre-emption of the plaintiff qua the vendee-defendant. As per learned counsel for the plaintiff-petitioner had claimed the right of pre-emption on the basis of "Shafi Jar" and to prove this claim, he had produced Aks Shajra (Exh.P.3) on the record. This Aks Shajra was brought into evidence through the statement of P.W.3, who had duly proved it. Laying foundation on the statement of P.W.3, Muhammad Din, Patwari, learned counsel for the petitioner has argued that as no cross-examination was conducted to the examination-in-chief of the aforesaid witness to this material fact by the defendant-respondent, the superior right had stood proved on the record. It has further been submitted that the statement (Exh.D.16) attributed to the plaintiff-petitioner to prove the knowledge of the sale transaction and presence of the petitioner as witness in the execution petition as P.W.3 was never put to the plaintiff, therefore, no credence could be placed upon it.
5. Addressing on the point of limitation, which was decided under Issue No.3 by the learned Courts below, it has been contended by the learned counsel that section 30 clause (d) of the Punjab Pre- emption Act, 1991 was applicable to the instant case and the decree dated 1-2-1975 could not be considered as a sale, as it was to be followed by a registered sale-deed, which could only be pre- empted. Basing his reasoning on this point, the learned counsel has disputed the findings of the learned Courts below on Issue No.3 and has stated that the suit filed by the plaintiff-petitioner on the basis of registered sale-deed dated 25-7-1996 (Exh.P.5) was instituted within limitation as prescribed by section 30(d) of the Punjab Pre-emption Act, 1991.
6. The learned counsel appearing on behalf of the respondent have replied that the impugned judgment and decree passed by the learned District Judge was not liable to be set aside as the judgment had adduced cogent reasons for dismissal of the appeal and no inherent infirmity in the aforesaid judgment has been pointed out by the learned counsel for the petitioner. Defending the impugned judgment, learned counsel have argued that the pre-emptor had admitted in his statement while appearing as a witness in the suit that he was owner in the village (Deh) on the basis of oral sale evidenced through mutation. So, as per learned counsel, the plaintiff/pre-emptor had got no right or title to file the instant pre-emption suit against the defendant-respondent.
Following authorities have been referred to by them on this proposition:--
(i) Jangi v. Jhanda and others PLD 1961 (W.P.) BJ 34;
(ii) Sohna v. Allah Dad and another PLD 1962 BJ 17;
(iii) Muhammad Baldish v. Ziaullah and others PLD 1971 BJ 42;
(iv) Pir Bakhsh v. Budhoo PLD 1978 BJ 86 and
(v) Syed Haji Imam Bakhsh Shah and others v. Mir Muhammad Ali Haji Ali Murad Khan NLR 1993 SD 442.
7. It was also mooted by the learned counsel for the respondent that the plaintiff was co-sharer in another Khata, the land of which, was not adjacent to the land in dispute. As regards the limitation point, the learned counsel supported the judgments of both the Courts below and have asserted that the pre-emption suit was clearly barred by time under Article 120 of the Limitation Act. With regard to the Talbs, they have alleged that the plaintiff-petitioner had failed to prove and perform it in accordance with law. Muhammad Yousuf, plaintiff-petitioner had not sent notice on the correct address as was entered into the registered sale-deed dated 25-7-1996 and the notice under section 13 of the Pre-emption Act, 1991 allegedly transmitted to the defendant-respondent was addressed to Faisalabad, where the defendant-respondent was not residing and had no connection with that place in any way. Therefore, the requirement of performance of Talbs by remitting the notice under section 13(3) of the Punjab Pre-emption Act, 1991 was not complied with.
8. From the perusal of record and hearing of the arguments of the learned counsel, I have drawn the following conclusions:--
(a) It is an admitted fact that suit for specific performance filed in the year 1973 was decreed on 1- 2-1975 (Exh.D.2 and Exh.D.3). The question arises as to whether the aforesaid decree was pre- emptible or not? And on what date, the sale would be considered to have been perfected? Whether sale can be presumed to have been completed when the decree had come into existence? It may be kept in mind that section 3(5) of the Punjab Pre-emption Act I of 1913 had not defined the sale. It had only included some transactions of sales into that definition, therefore, we had to revert to the Transfer of Property Act, 1882 to seek the meaning of sale, which has defined the sale in section 54, which is reproduced as under:-- "54."Sale defined".--- Sale is a transfer of ownership in exchange for a price paid or promised or part paid and part promised."
From the above noted definition, two vital ingredients have been found, one is transfer of ownership and the second is for the payment of sale consideration, which must be paid or promised, part paid or part promised. After the passing of consent decree on 1-2-1975, the transfer of ownership had come into existence because, prior to it on 24-10-1974 when application was filed by Sharaf Din, it was admitted by him that he had already been paid the remaining price of the lands in dispute (Exh.D.4 and Exh.D.5) by the vendor. By appearing in the Court and after deposing on oath, a compromise/consent decree had taken the birth which according to provisions of section 96(3) of the C.P.C., it had become an unappealable and normally unassailable decree. So, the decree had divested the ownership rights from Sharaf Din, vendor to Manzoor Ahmad, vendee and the decree had, therefore, become clearly pre-emptible in accordance with law in vogue at that time i.e. The Punjab Pre-emption Act, 1913, vide Muhammad Nawaz v. Fida Hussain and another 1994 CLC 1487 and Muhammad Sharif and another v. Muhammad Siddiq PLD 2000 Lah.
306.
(b) It is not the case of the plaintiff-petitioner/pre-emptor that he had not known the litigation and the passing of the aforesaid decree in the year 1975. As held by me in supra para., the decree was clearly pre-emptible. The other question would then crop up as to what was the provision of law of limitation, which had governed the situation. Article 10 of the Limitation Act was not applicable because no registered deed was still executed and the possession of the land in dispute was not delivered. So, was the case with the applicability of section 30 of the Punjab Pre-emption Act, 1913.
As both these provisions were not relevant, then residuary Article 120 of the Limitation Act was applicable, which had provided six years for this purpose. Therefore, the decree could be pre- empted under Article 120 of the Limitation Act within 6 years from the date of the passing of the decree but the plaintiff-petitioner opted not to exercise his right of pre-emption for reasons best known to him. As he had missed the opportune moment at that stage, so he was not entitled to exercise it afterwards. The sale, which has been evidenced through this registered sale-deed dated 25-7-1996, the execution of deed of which was through the intervention of the Civil Court, is not a sale anew. It is a formal conveyance deed which has recognized the earlier sale transaction having been effected between Sharaf Din, vendor and Manzoor Ahmad, vendee and completed by passing of a decree on 1-2-1975. It may be pointed out here with benefit that the defective, inchoate or incomplete sale transaction even in contravention of the Registration Act or contrary to the provisions of section 54 of the Transfer of Property Act have been declared and found pre- emptible under the old law of Punjab Pre-emption Act I of 1913. In the old law, definition of sale was given a wider scope and meaning. In Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411; Gullan (deceased) represented by Jan Muhammad and others v. Muhammad Ramzan and others 1968 SCM R 142; Muhammad Bashir v. Ghulam Akbar 1982 SCM R 1018, the sale in violation of the provisions of section 54 of the Transfer of Property Act or MLR 115 were held preemptible. So, decree passed although was not registered yet could be pre-empted at that time. An appeal against the aforesaid decree of compromise dated 1-2-1975 was also filed which was afterward withdrawn on 15-7-1996. Due to this fact, the decree of 1975 had attained finality in the year 1996, when the appeal was withdrawn. After the withdrawal, another chance was available to the petitioner, who could file the suit for pre-emption at that stage also, but he had chosen to remain static and he let the train passed from his boarding station. The instant suit filed on 23-11-1996 was clearly barred by time under section 30(d) of the Punjab Pre-emption Act, 1991, which provided four months from the date of knowledge. Therefore, the suit of the petitioner for possession through pre-emption was barred by limitation by all ways and means.
(c) The provision of section 13 of the Punjab Pre-emption Act, 1991 have clearly provided that a pre- emptor has to declare his intention to exercise right of pre-emption immediately, without wasting even a short moment, when he comes to know of the sale. As already found by me that sale had earlier been completed when the compromise decree was passed or at the most when the appeal was withdrawn on 15-7-1996 by the vendor, and the decree had become pre-emptible at that time, and the suit had to be filed necessarily within four months of that final decree of the Civil Court. As the pre-emptor had not declared his intention to preempt this sale at that stage, so he was not entitled to any, indulgence from the Civil Court.
(d) It is an old settled law that a person who is not an owner through a registered sale-deed has got no right or title to exercise the alleged right of pre-emption upon a sale. The citations Jangi v.
Jhanda and others PLD 1961 (W.P.) BJ 34; Sohna v. Allah Dad and another PLD 1962 BJ 17; Muhammad Bakhsh v. Ziaullah and others PLD 1971 BJ 42; Pir Bakhsh v. Budhoo; PLD 1978 BJ 86; Syed Haji Imam Bakhsh Shah and others v. Mir Muhammad Ali Haji Ali Murad Khan NLR 1993 SD 442 have also clearly laid down this principle that to pre-empt a sale, pre-emptor must be holder of ownership right or title on the basis of a registered sale-deed. In other words, he must prove himself owner in the estate through lawful documents, conferring the title of ownership upon him of the property transferred in his favour. A pre-emptor who is not an owner through a registered sale- deed which does not create rights in the property, cannot be termed as owner, therefore, he has got no right to pre-empt the impugned sale.
(e) When inquired about the proof, with regard to superior right of pre-emption of the pre- emptor/petitioner, learned counsel for the petitioner has fairly stated that the pre- emptor/petitioner has based his case upon the right granted to him by section 6(b)(II) of the Punjab Preemption Act, 1991, which gives a right of pre-emption to "Shafi Kheleet". To prove and declare the right of "Shafi Khaleet", it is essential that section 6 of the aforesaid Act be examined in depth before `delivering any findings with regard to this right of pre-emptor/petitioner. Section 6(b) of the Punjab Pre-emption Act, 1991, which has awarded to a person, right of "Shafi Khaleet" was further explained and clarified by the Legislature in Explanation II of section 6(b) of the Punja Pre- emption Act, 1991. To appreciate the Legislature intent and spirit, the words used in that explanation II are reproduced hereunder:-- "....Explanation, II. `Shafi Khaleet' means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation."
' From bare reading of the Explanation, the following deductions can be drawn:--
(i) a person who claims a right of "Shafi Khaleet" must show that special rights were attached to the immovable property sold;
(ii) the words 'special rights' and the 'attachment to the immovable property sold' must be proved through evidence on the record of the case;
(iii) if a person has not proved in the suit any such special rights or their attachment with the immovable property sold, he cannot turn to be a successful pre-emptor unless he proves this qualification;
(iv) the instances of those rights as given are right of passage, right of passage of water or right of irrigation; and
(v) the last and final requirement is that the person pre-empting the disputed sale, on the basis of 'Shall Khaleet' qualification, must be a participator in the aforesaid special rights.
In order to prove the right of "Shafi Khaleet", Warabandi of Outlet No.4976/L of Rajbah Mundi Minor has been brought on record as Exh,P.10 by the plaintiff-petitioner. From its perusal it appears that the name of Muhammad Yousuf has been shown at Serial No.38 of that Wardabandi. In that Warabandi in column of Serial No.38 Muhammad Yousuf petitioner has been shown as a participator of the irrigation water along with his brother Muhammad Shafi and two other persons, named as Abdul Hameed son of Karim Bakhsh and Muhammad Din son of Imam Din. But Sharaf Din, vendor has been shown at Serial No.29 a separate entry and column, in which pre-emptor is not participating. Muhammad Yousuf has also been shown at Serial No.36 of the aforesaid Warabandi along with Muhammad Shafi, his brother. So, from the Warabandi, the petitioner cannot be declared as a participator of the special rights of irrigation attached with immovable property sold. In fact, both these entries show that Muhammad Yousuf is a participator with Muhammad Shafi, Abdul Hameed and Muhammad Din in their rights of irrigation at Serial No.38, while with regard to the land mentioned at Serial No.36 he is participator of 32 shares with Muhammad Shafi, who has been shown a co-sharer of 29 shares. So, from nowhere it can be held that pre- emptor/plaintiff is participator of the rights of irrigation attached to sold lands. The plaintiff had to prove that in the immovable property sold and the right of irrigation attached to that land, he had held the right of participation. Mere having right of irrigation from Khaal/watercourse cannot confer upon a pre-emptor the right of "Shafi Khaleet" unless the pre-emptor succeeds to show that those rights were attached to the immovable property and that he had the right of participation in those rights. Therefore, I cannot subscribe to the view propounded by the petitioner's learned counsel that mere right of irrigation from a Khaal/watercoruse would confer upon the pre-emptor a right of "Shafi Khaleet". The above noted ingredients having not been fulfilled by the petitioner, the qualification of "Shall Khaleet" cannot be held to have been proved by the pre-emptor/petitioner.
The learned counsel for the respondent have rightly relied upon Syed Haji Imam Bakhsh Shah and others v. Mir Muhammad Ali Haji Ali Murad Khan NLR 1993 SD 442.
(f) The petitioner has claimed right of ":Shafi Jar' also, the definition of which is to be found at Explanation III of section 6(c) of the Punjab Pre-emption Act, 1991, which is as under:-- ".... Explanation III. 'Shafi Jar' means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold."
To prove this qualification, the petitioner has relied upon Exh.P.3, Aks Shajra, produced in the suit.
Aks Shajra cannot prove the ownership of the parties. To prove the ownership is the primary requirement, then its adjacent character has to be seen and determined. The petitioner-plaintiff has brought on record a copy of Register Haqdaran Zamin for the year 1993-1994 as Exh.P.6. This copy of Register Haqdaran Zamin is not a certified copy because the person issuing it has not given a certificate with regard to its correctness. The words written are as under:- {{URDU TEXT}}W/54B).
' To read and believe this document to be a legal and valid document, it was necessary that it should have contained the certificate of its correctness with regard to it being a copy from the original record. As no such certificate is appended to it, therefore, it cannot be believed and acted upon. Article 87 of the Qanun-e-Shahadat Order, 1984 has been violated. So, the adjacent nature of the land has not been proved by the petitioner. As regards the assertion of the learned counsel for the petitioner that P.W.2 Muhammad Tariq, Patwari, when had appeared to prove Aks Shajra, brought on record as Exh.P.3, no question in the cross-examination was put to the said witness about Aks Shajra, therefore, this fact must be presumed to have been proved. I have minutely examined the statement of this witness and have found that no where the aforesaid Muhammad Tariq, Patwari, P.W.2, had stated that Aks Shajra Exh.P.3 was a correct preparation from the record or from the site. As no such verification was deposed by the aforesaid witness in his examination- in-chief, therefore, it was not necessary for the defendant-respondent to ask any such question in the cross-examination.
' The same is the position with the statement of P.W.3, Muhammad Din, Patwari, who had prepared Exh.P.4. So, the statements of both these witnesses have got no evidentiary value to support the case of the petitioner.
(g) Learned counsel appearing on behalf of the respondent, have diverted my attention with regard to the failure of the plaintiff-petitioner in the performance of Talb-e-Ishhad. According to the learned counsel, the notice was not sent to the vendee-defendant and it was never received by him. If it be presumed that such notice was addressed to the vendee-respondent, even then the benefit of notice cannot be extended to the petitioner because the aforesaid notice was addressed to such an address, which was incorrect. As per the learned counsel, the petitioner had not knowingly remitted the aforesaid notice of Talb-e-Ishhad at the address of vendee-defendant, correct which was of Rahimyar Khan. They have referred to Exh.P.5, registered sale-deed, upon which reliance was placed by the plaintiff-petitioner himself to show that notice was sent to respondent at his Rahimyar Khan's address, but according to postal receipt produced on the record, the address of the vendee-defendant was shown to be that of Faisalabad. So, the requirement contained in section 13 of the Punjab Pre-emption Act, 1991 cannot be held to have been fulfilled by the plaintiff-petitioner.
(h) It has further been argued that Muhammad Yousuf, plaintiff-petitioner had appeared in the witness-box, when the proceedings were being conducted on the objection application of Abdul Hameed, near relative of Muhammad Yousuf on 12-9-1984 (certified copy of the statement was brought on the record by the defendant-respondent as Exh.D.16). Although the petitioner has denied the making of such statement in the Court, yet denial of this fact has proved that the plaintiff-petitioner can make a false statement even denying the official and judicial record even.
(i) Learned counsel for the respondent have also canvassed that the petitioner had got allegedly the knowledge of the sale, when warrant for possession was being executed at the site, but Muhammad Yousuf, who was present at that time, had not performed Talb-e-Muwathibat at that stage, if the assertion of the petitioner was true. Exh.D.12 has been produced to prove this fact. From this, learned counsel states that the plaintiff has also failed to prove performance of Talb-e- Muwathibat at the relevant time.
(J) The plaintiff-petitioner has come in this Court to get exercised revisional jurisdiction of this Court, under section 115, C.P.C. Both the learned Courts below have found concurrently that the plaintiff-petitioner had got no right of pre-emption; that the suit was barred by time, and that the plaintiff-petitioner had failed to perform Talbs as required by law. Since the facts of performance of Talbs and superior right of preemption fall within the domain of factual inquiry, therefore, findings recorded by the learned Courts below on the factual aspect and found not to be illegal, perverse or based on foolish appreciation of evidence, cannot be upset in exercise of this jurisdiction.
Therefore, I am not inclined to upset the findings of facts recorded by both the learned Courts below and by dismissing the revision petition, uphold the judgments and decrees of the learned Courts below. There shall be no order as to costs.