' Vide Mutation No,193 attested on 24-8-1995, the respondents acquired suit-land mentioned in the plaint. This was a mutation of exchange. On 8-11-1995 the petitioner filed a suit for possession of the suit-land by pre-emption. According to him, the land had been sold to the respondents for Rs,90,000 and the mutation of exchange is fictitious. He claimed to be a Shafi Sharik, Khalit and Jar.
Performance of Talbs was pleaded. The respondents in their written statement stated that they have purchased the land for Rs,2,00,000 from Muhammad Azeem and have also paid the District Council Fee, etc. They have further stated that they have effected improvements in the same of Rs,1,25,000. The other allegations in the plaint were denied. Following issues were framed by the learned trial Court;--
(I) 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 made Talbs according to law of the preemption? OPD.
(4) Whether the suit is barred by time? OPP.
(5) Whether the plaintiff is estopped by his act and conduct from filing this suit? OPD.
(6) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD.
(7) Whether the defendants have 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.
(8) Whether the defendants incurred incidental charges, if so, to what extent? OPD.
(9) Whether the defendants are entitled to compensatory costs from the plaintiff? OPD.
(10) Whether valuation of the suit for the purposes of court-fee and jurisdiction has been assessed incorrect, if so, what is the correct valuation? OPD
(11) Relief.
' Evidence of the parties were recorded. The learned trial Court while discussing issue No,1 held that since the fact that it is a sale stands admitted in the written statement, he would not entertain the arguments of the learned counsel for the respondents that it was an exchange. He found that the petitioner has a superior right of preemption. Under Issue No,2 the value of the, land was fixed at Rs,1,80,000. Issue No,4 was answered against the respondents. Issues Nos. 5, 9 and 10 were not pressed. Under issue No,8, it was held that incidental charges are Rs,357. Issue No,8 was found against the respondents. Under issue No,3, it was found that the Talbs have not been properly performed. On the basis of finding on issue No,3, the suit was dismissed vide judgment and decree, dated 25-9-2001. The petitioner filed a first appeal. This was heard by a learned ADJ, Jhang, holding camp at Shorkot. Now the learned ADJ proceeded to hold that, the transaction is an exchange and further confirmed the findings of the learned trial Court under issue No,3 and consequently dismissed the appeal on 18-5-2002.
2. Learned counsel for the petitioner contends that the factum of sale was admitted to the written statement and there is repeated reference that it is a sale even the price was mentioned and as such the learned ADJ has acted without lawful authority in holding the transaction to be an exchange when the respondents had not even claimed an issue on the subject. Further contends that the findings recorded on issue No,3 by both the learned Courts below are erroneous and since upon the wrong assumption the petitioner has been non-suited, the impugned judgments and decrees do need to be interfered with under section 115, C.P.C. Learned counsel for the respondents, on the other hand, support findings in the matter of Talbs with reference to the judgment in the case of Tajul Mulk v. Mst. Zaitoon Bibi and 3 others (PLD 1994 SC 356) and further supports the findings of the learned ADJ that the transaction is an exchange on the ground that the admissions made in the written statement were inadvertent.
3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. I will be dealing with the matter of first Talb assuming that it was a sale.
4. Copy of the mutation in question is on record as Exh. P.6 and Exh.D.1. I find that mutation was entered on 9-8-1995 and it is recorded in the Column No,14 that Muhammad Azeem has stated that he effected an exchange with persons mentioned in Column No,8 and has delivered possession. The mutation fee is recorded to have been paid vide receipt, dated 9-8-1995. 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 were appeared before him and admitted the factum of exchange 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.
5. Now according to para. 4 of the plaint the petitioner came to know about the sale on 18-8-1995 when he alongwith 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.
6. Now the learned Courts blelow 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 priont to the attestation of mutation, there is no sale and as such a Talb cannot be made prior to the said event. The learned .;.D.J. Has discussed the matter in some more detail. According to his reading of section 21 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 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.
7. 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 an evidence of title. As 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 furthent 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 immovable property is effected in exchange for a valuable 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 Pre-emption 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 then from the day the vendee takes physical possession of the property. Clause (d) of section 30 deals with a situation not covered by any of the clauses (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 a pre-emption suit and set 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 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.
8. Now coming to the question of the nature of the transaction, I may state in the very beginning that the learned ADJ has bent his back to breaking point in order to hold that the admissions made in the mien statement are to be ignored. In the first instance, a written statement in a suit in which the defendant is appearing as a witness can hardly be termed as a previous statement to invoke the rigours of Article 145 of the Qanun-e-Shahadat Order, 1984 and in the second learned ADJ very conveniently omitted to notice that it was categorically put to Zulfiqar D.W.3 and he admitted that their learned counsel Mahar Saeed, Advocate, has filed the written statement on their behalf. Now the said written statement in the very first preliminary objection states:-- ' And that they have been telling the petitioner to purchase the land but he insisted that he will get the land for the respondents. In preliminary objection No,3 it is stated as follows:- ' In preliminary objection No,6, it is stated as follows:- ' And to top it all in response to para.1 of the plaint where the petitioner had categorically alleged that the transaction is a sale, the reply is recorded as follows:- {{URDU TEXT}} ' Now the learned counsel draws my attention to a line inserted at the end of para. 1, which is as follows:- 'Apart from the fact it is apparent upon a plain reading of the said document that the said line is an interpretation, it has no nexus with the consistent averments in the written statement repeatedly declaring that the respondents had purchased the land.
9. Now in the case of Ahmad Khan v. Rasul Shah and others (PLD 1975 SC 311), the Hon'ble Supreme Court of Pakistan has laid down that an admission which is wrong, in fact, can be withdrawn.
However, but this is subject to two exceptions. First where the admission amounts to a representation operating as estoppel and second an admission made in the pleadings. The learned ADJ also lost sight of the fact that at no point of time even the respondents made an attempt for an amendment enabling them to withdraw the said admissions and further that they never claimed an issue on the nature of transaction. The said findings recorded by the learned ADJ are perverse and ante accordingly set aside.
10. I am furthent constrained to observe that the learned ADJ has recorded his judgment without even reading the judgment of the learned trial Court. He has observed that the learned trial Court has not committed illegality or material irregularity by not relying upon the statement contained in the written statement. This is a totally incorrect statement made by the learned ADJ. The learned trial Court, on the other hand, has held in pantas.7, 8 and 8-A of its judgment that the respondents have unequivocally admitted the transaction to be a sale and he endorsed the earlier decision of his predecessor-in-office not to frame an issue about the nature of transaction. The said findings recorded by the learned ADJ are perverse and ante accordingly set aside.
11. For the reasons stated above, this civil revision is allowed. Both the impugned judgments and decrees for the learned lower Courts are set aside and the suit of the petitioner is decreed subject to payment of Rs, 1,80,357 in the tntial Court on or before 31-5-2004. In case the petitioner fails to deposit the said amount, 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 pantties are Teft to bear their own costs.