' Abdul Hamid plaintiff instituted a suit against Gul Muhammad Khan and his brother Muhammad Khan (defendants) for possession of 5 kanals, 9-1/3 marlas of the land bearing Khasra Nos.
6,405/1975 comprised in Khata numbers 1350/2390, situated in the limits of village Zaida, Tehsil Swabi, by enforcing his right of pre-emption on payment of Rs, 1,500, or the amount as determined by the Court. The defence version was that they had become co-owners in the suit land, as such the plaintiff's right of preemption was defeated and he was no longer entitled to enforce the same.
The learned Additional Civil Judge, Swabi did not accept the respondents' version and held that the plaintiff was entitled to get the possession of the suit land by exercising his right of pre-emption, His suit was consequently decreed, but was made subject to the mortgage money which was due over the land. The aggrieved defendants went to the Court of Senior Civil Judge, Mardan on appeal.
The learned lower appellate Court agreed with the finding of the trial Court and held that vide Mutation Nos. 12003 and 12005 the defendants did acquire some land in the suit Khata but observed that this transaction was completed after the institution of the suit, as such of no avail to the contesting defendants (appellants), their appeal was consequently dismissed by the judgment and decree dated 29th October 1969. The aggrieved vendees have now come on Second appeal to this Court with the same old ground, which they had taken before the lower Courts.
2. Ordinarily this Court could have confirmed the concurrent finding of the two Courts below, but an important point of law is involved and therefore, the same has to be discussed.
3. We have on record three mutations; one is certified copy of Mutation No, 12003 (Exh. D. W. 1/1), the other is copy of Mutation No, 12004 (copy Exh. D.W. 1/2) and the third one is the copy of Mutation No, 12005 (Exh. D.W. 1/3), Mutation No, 12003 was entered with the Patwati on 8th September 1966. On 24th October 1966 Abdul Naeem Shah, Fazal Rahim Shah, and Abdul Akbar Shah vendors stated before the Re. Venue Officer that the sale transaction in favour of Gul Muhammad Khan etc., was correct and that they had received the purchase money. They also agreed to the attestation of mutation No, 12004 in favour of the said vendees. That mutation was ultimately attested on 10th March, 1967. Vide Mutation No, 12004, transfer of a part of the suit Khata was admitted by the said transferors and, vide. Mutation Nos. 12005 entered with the Patwari on 8th September, 1966 Abdul Haleem Shah vendor appeared before the Revenue Officer at Zaida on 15th September, 1966 and stated before him that he had received the proportionate share of the purchase money and that the land mentioned therein had been transferred by him to Gul Muhammad Khan etc. That mutation was also ultimately attested on 24th October, 1966. The present suit was instituted in Court on 4th October, 1966.
4. Learned counsel for the appellants maintains that by the aforementioned mutations, particularly Mutation No, 12005, the vendees acquired some land in the suit. Khata from Abdul Haleem Shah on 15th September, 1966, i,e, before the institution of the suit and thus be became a co-owner in the suit Khata prior to the institution of the suit. Learned counsel for the contesting respondents disputes this fact and contends that the transaction would be deemed to have been completed in favour of the vendees for the purpose of the improvement of their status when the mutations in question were attested in their favour, and that admittedly. That date was after the institution of the suit and not before. Learned counsel for the appellants referred to a West Pakistan High Court Ruling reported as Jangi v. Jhanda and others (1). It is a Division Bench Ruling. Their Lordships have held that, "sale of the land shall be deemed to have been completed on the day on which it was effected and not on the date on which mutation in the revenue records was sanctioned about it.
Title in the property passes when the transaction of sale is completed and is not postponed till the attestation of the mutation in the revenue records". Some time afterwards in a Letters Patent Appeal No, 14 of 1969, decided on 19th May, 1977, a Division Bench of this Court while discussing the limitation period for the purpose of pre-emption suit came to the conclusion that it would run from the date when the pre-emptor gets notice of sale or is presumed to have got such notice. That case is reported as Nur Nawaz and 3 others v. Muhammad Pio and 31 others (2). The main question for consideration was, as held therein, that once a declaration is made before the Revenue Officer about the receipt of the purchase money and the completion of the transaction of sale in favour of the vendees, then that date becomes relevant and not the date when the mutation was attested.
In that context it would become clear that on 15th September, 1966 when in an open meeting Abdul Haleem Shah vendor declared before the Revenue Officer that he had received the purchase money and was accepting the sale in favour of the vendees as correct, then it would be that date which shall be considered for improvement of status by the vendees and not 24th October, 1966 when that mutation was ultimately attested. Here too it will be (2) PLD 1997 pesh. (1) PLD 1961 B J noteworthy that in the order dated 24th October, 1966 attestation of mutation was ordered with reference to the order of the Revenue Officer dated 15th September, 1966 and 24th October, 1966.
On 24th October, 1966 the remaining vendors whose statements have been recorded through a Commissioner as also of the ladies who too have been examined through the Commissioner were placed before the Revenue Officer. It follows that the transaction of sale in favour of the vendees had become complete and in any case, the vendees had become co-sharers in the suit Khata prior to the institution of the suit.
5. Learned counsel for the respondent struggled in vain to prove that the transaction of sale would be treated as complete when the mutation in question was attested in favour of the vendees, but not otherwise. However, he could not produce any authority in support of his contention.
6. In that view of the matter this appeal must succeed. Therefore, the judgments and decrees of the lower Courts are set aside and this appeal is accepted and the suit of the plaintiff-respondent is dismissed. In the peculiar circumstances of the case the parties are left to bear their own costs.