Syed Jamshed Ali, J.--This judgment shall dispose of Civil Appeals No, 848 and 849 of 2005 as the questions of law and fact arising therein are common. Vide Mutation No, 194 (in C.A. 848/2005) entered on 9.8.1995 and attested on 24.8.1995, the petitioners purchased land measuring 46 kanals 18 marlas for a consideration of Rs, 200,000/- and vide' Mutation No, 193 (in C.A. No, 849/2006) entered on 9.8.1995 and attested on 24.8.1995, the petitioners got in exchange land measuring 44 kanals 15 marlas.
2. Against the aforesaid transactions, separate pre-emption suits were filed by Shandat Khan, respondent on the ground that he was Shafi Sharik, Shafi Khalit and Shafi Jar. The exchange vide Mutation No, 193 was claimed to be a sale for a consideration of Rs, 90.000/-. The two suits were contested. The learned trial Court found that the respondent-preemptor had superior right.
However, the suits were dismissed on the ground that "Talb-e-Mawathibat" was not made after attestation of the mutations. This was vide separate judgments and decrees dated 25.9.2001. The two appeals of the pre-emptor were also dismissed. Civil Revisions Nos, 1827 and 1828/2002 of the pre-emptor-respondent were allowed vide the impugned judgments dated 27.4.2004, The learned High Court was of the view that the oral sale was complete when the matter was reported to Patwari Halqa on 9.8.1995, therefore, Talb-e-Mawathibat made thereafter on 18.8.1995 was in order.
3. The appellants, in the first instance, filed CPLAs No, 1655 of p004 and 1656-L of 2004. Since the impugned judgments of the learned High Court were of reversal, and the value of the subject- matter was more than Rs, 50,000/-, appeals under Article 185 (2) were competent, the learned counsel for the appellants with a view to filing appeals withdrew both the petitions which were dismissed vide order dated 15.7.2005. They then filed the present appeals which are barred by time by 425 days and applications for condonation of delay have been moved in both the cases.
4. The learned counsel for the appellants submits that in C.A. No, 848/2005, the value of the suit for the purpose of jurisdiction as indicated in the plaint was Rs, 24,000/- while in the other case it was Rs, 23,000/- which mislead the appellants to file petitions in the first instance. He strenuously urged that the confusion continued to prevail till this Court in Taza Gul and others Vs. Haji Fazal Subhan (2006 SCMR 504) clarified that the value of the subject-matter in a preemption case for the purpose of appeal before this Court shall be the market value of the land. He also relied upon the said judgment to contend that in the said case, the petition which was erroneously filed was converted into appeal and the delay was condoned. In these cases, he contends, the petitions were filed within thirty days and the mistake of mere quoting Article 185 (3) did not take away the jurisdiction of this Court to hear the aforesaith petitions as appeals. Therefore, according to him, even the withdrawal of the petitions by the counsel was a mistake which could not, in the circumstances, be said to be tainted with negligence or bad faith. Another limb of his submission was that Section 3 of the Limitation Act did not apply, by its own force, to the appeals and petitions before this Court and, therefore, in the matter of condonation of delay, the approach has to be liberal to ensure that technicalities are not allowed to operate as tyrant master and the cases are heard on merits. Reliance was placed on Collector, Land Acquisition, Anantnag and another Vs. Mst.
Katiji and others (AIR 1987 SC'1353). Yet another contention was that in accordance with a three members bench judgment in Investment Corporation of Pakistan Vs. Syed Jamaat Ali Shah and another (1992 SCMR 1195), the petition initially filed could be heard as such even 'though an appeal lay and its conversion into appeal was not required. He also relied upon the following judgments i,e, Haji Muhammad Nawaz Vs. Hussain Shah (1990 SCMR 1621), Sardar Abdur Rauf Khan and others Vs. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCMR 2164)
Chairman, N.W.F.P. Forest Development Corporation and others Vs. Khurshid Anwar Khar and others (1992 SCMR 1202) to contend that conversion of petitions into appeals has liberally been allowed by this Court and delay condoned. He lastly submits that in fact the office of this Court also contributed in the delay because at the time of presentation of the petitions it was not pointed out that appeals being competent the petitions would not be entertainable. Had the office so pointed out the delay in filing the appeals could be avoided. He next submits that even on merits the concurrent judgments of the two Courts were reversed by the learned High Court and the question of law being raised herein is of utmost importance in as-much-as that it is a question of first impression and in case these appeals are not heard on merits, the judgment of the learned High Court, which in his view, lays down wrong law, will continue to occupy the filed.
5. On merits, his contention is that right of pre-emption under the Punjab Pre-emption Act, 1991 arises out of a perfected sale and, therefore, the "Talb-e-Mawathibar could only be made after completion of the sale. He maintains that the question as to completion of the sale will have to be examined in the light of the principles of Islamic Law and the report in Roznamcha Waqiati entered on-behalf of the vendor on 8.8.1995 (which was not otherwise proved) could not be said to have brought about a perfected sale.
6. It is vehemently contended that in fact it has never been the case of the pre-emptor that the sale was complete any time before attestation of the mutation. The pre-emptor made "Talb-e- Mawathibat" on 18.8.1995 and the plea taken in the plaint was that copies of Part Patwar supplied to him by the Patwari indicated that the mutations were attested on 17.8.1995. He further submits that an appeal has the effect of re-opening of the entire case. On this premises he sought to argue that the pre-emptor had no right to claim pre-emption of a large parcel of land because under the Muslim Law, pre-emption on the basis of contiguity extends only to small pieces of land. Reliance was placed on Haji Muhammad Abbas and another Vs. Shaheen and another (1982 CLC 232), Syed Haji Imambakhsh Shah and others. Vs. Mir Muhammadali Khan Haji Ali Murad Khan (AIR (33) 1946 Sind 55). He further urged that common source of irrigation from Government owned canal does not confer right of pre-emption. In raising this contention, he submits that a question of law could be raised at any stage of the proceedings. He next contends that Issue No, 6-A, regarding Talbs, was settled on 22.9.2001 at the arguments stage and without taking any evidence and allowing opportunity to either side to produce evidence the cases were decided on 25.9.2001. This caused serious prejudice to the appellants. It was also urged specifically in the revision before the learned High Court but was not attended to.
7. On the other hand, the learned counsel for, pre-emptor has vehemently opposed this appeal. He submits that the pre-emptor was informed by the vendee on the spot on 18.8.1995 that he had purchased the land in dispute on which Talb-e-Mawathibat was made, meanwhile on 9.8.1995, report had already, been lodged in Roznamcha Waqiati by the vendor which amounted to sale and, therefore, the pre-emptor was not bound to wait for making Talb-e-Mawathibat till attestation of the mutation. He contends that, presumption of truth was attached to Roznamcha Waqiati which clearly established that sale had taken place on 9.8.1995. Reliance was placed on Muhammad Subhan and others Vs. Mir Qadam Khan and others (2001 MLD 1716), Fazal Rehman Vs. Abdul Qayyum (NLR 1996 Civil 545) and Zafar Ali Vs. Zainul Abidin and another (1992 SCMR 1886).
On the question of limitation, his contention is that there was no justification to be guided by the valuation of the suit for the purpose of jurisdiction as given in the plaint. Therefore, the filing of petitions, in the first instance, was a grossly negligent act which could not be condoned particularly the record does not show that any application was moved either for conversion of petitions into appeals or hearing the aforesaid petitions as such. Instead, these were withdrawn.
According to him, the defence of limitation is a valuable right which has accrued to the pre- emptor.
8. We have considered the submissions of the learned counsel for the parties and have gone through the record. We will first like to attend to the question of limitation. As noted by this Court in the case of Taza Gul sifpra, petitions and appeals in pre-emption matters used to be filed on the basis of jurisdictional value as given in the plaint or as altered by the Court. However, in the said case, it was clarified that the actual value of the subject-matter shall be the determinative factor.
The mistake in the said case to file a petition instead of an appeal was considered to' be bona fide and since as appeal it was beyond the prescribed period of limitation, when filed, the delay was condoned. In the cases in hand the petitions were filed well within thirty days and no condonation was involved if the. office had pointed out on presentation thereof that appeals, and not petitions, were competent, the defect could be rectified. Thus, in fact, although a mistake was committed by the learned counsel 'in filing the petitions yet its effect was aggravated by silence of the office. It is well settled principle of law that act of the Court or act of a public functionary on the actions of whom a citizen has no control should not be allowed to prejudice any one. Although contributory negligence by the office could not be pressed as a sole ground to seek condonation of delay yet viewed in the over all peculiar facts and circumstances of the case and the reasons to follow we are of the view that in this case it was an important circumstance, bearing on the question of exercise of discretion. We will also like to observe that mere quoting a wrong provision of law i,e, 185
(3) instead of, 185 (2) of the Constitution on the memo of petitions originally filed did not stand in the way of this Court to hear the said cases as appeals because even as appeals these were within time. We may also like to refer to the case of Investment Corporation of Pakistan supra in which instead of an appeal a petition was filed. It was heard as such, leave was granted and it was ultimately allowed. We will like to reiterate here that a provision made in a statute for the benefit of an individual could not only be waived but also that such a provision cannot be pressed to his disadvantage. This is being said in the context that right of appeal is much stronger right than the right of filing a petition and if a litigant gives up his right of appeal, he does not necessarily mean that he has given up his right to file a petition. To non suit a litigant for not filing an appeal would in fact amount to punishing him for not availing a right which enured to his benefit. We accordingly, condone the delay in filing these appeals.
9. The contention of learned counsel for the appellants that Section 3 of the Limitation Act does not apply has not impressed us because even if it does not apply, condonation of delay is in the discretion of this Court and in case it is declined the result would be the same i,e, dismissal of a petition or appeal as barred by time. We are, therefore, not inclined to examine this contention of the learned counsel in further details.
10.As far as the contention of the learned counsel for the respondent, that limitation has the effect of creating a valuable right in favour of the pre-emptor is concerned, suffice is to say that it is always subject to the discretion of the Court. In these cases, we do not find that the appellants have been negligent or mistake to file the petitions instead of appeals was so reckless that discretion ought not to be exercised in their favour.
11.As far as the controversy on the merits of the case is concerned, we will like to observe at the outset that it has never been the case of the pre-emptor that the sale was complete any time before attestation of the mutations. In fact, his case in the plaint was that he came to know of the sales on 18.8.1995 on which date, Zulfiqar one of the vendees was found ploughing the' disputed land, who informed the respondent of the sales on which Talb-e-Mawathibat was made. However, in para 5 of the plaint it was averred that copy of Part Patwar supplied to the respondent showed 17th August, 1995 as the date on which the mutations were attested. In this paragraph, it was also stated that after obtaining Part Sarkar the date of attestation of mutation was found to be 24.8.1995. The first question, therefore, which was required to be considered is the effect of absence of a specific plea that the sale had been completed before attestation of the mutations and the second is as to whether a mere report in Roznamcha Waqiati amounted to a sale and whether a transaction amounted to sale is to be examined with reference to Islamic Law or the General Law contained in the Transfer of Property Act or any, other statute.
12.As far as the first question is concerned there is ample authority that unless a case is set up in pleadings, decision of the case cannot possibly rest on such a plea. This has been the consistent law with the rationale that the other party is not to be taken by surprise. The contents of the plaint show that the pre-emptor claimed to have been mislead by copy of Part Patwar of the mutations which showed 17.8.1995 as the date of attestation of the two mutations. In fact going through the plaint carefully, plaintiffs own case was that Talb-e-Mawathibat was made on the basis of the copies of the mutation supplied by Patwari showing 17th September, 1995 as the date of attestation of the mutations. It has never been his case that the sale had been completed before attestation of the mutation on a particular date necessitating Talb-e-Mawathibat. We say it with respect to the learned Single Judge, that concurrent findings of the two Courts could not have been upset on the ground that when Talb-e-Mawathibat was made 'sale had already taken place. As far as the second question is concerned, we will like to observe that Sections 3 and 4 of the Punjab Pre- emption Act, 1991, are a complete answer. According to former section, "in the interpretation and the application of the provisions of this Act, the Court shall seek guidance from the Holy Quran and Sunnah" and according to the latter section, "The provisions of this Act shall have effect notwithstanding anything in any other law for the time being in force". Sale has been defined in Section 2 (d) which is as follows:-- "2. (a) to (c)
(d) "sale " means permanent transfer of the ownership of an Immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of hiba-bil-iwaz or hiba-ba-shart al-iwaz but does not include.
(i)to(v)xxxxxxxxxxxxxxx"
13..A perusal of the above definition shows that it is not exactly the same which is 'mentioned in Section 54 of the Transfer of Property Act. We are of the view that the expression "permanent transfer" in the definition of sale in this Act connotes a fully consummated sale and it has to be interpreted in the light of injunctions of Islam as laid down in Monajal Hug Vs. Shafiullah and another (PLD 1964 Dacca 640). The kale is brought into existence not only on payment of the sale consideration but also transfer of possession. From perusal of the record, we find that Roznamcha Waqiati was not produced instead reliance was placed on a note incorporated on the mutation sheet. The aforesaid note was not even primary evidence of the contents of Roznamcha Waqiati.
We have also. noticed that neither Roznamcha Waqiati was produced nor Muhammad Azeem, the vendor was examined. The reference to Roznamcha Waqiati on the mutation sheet did not constitute any evidence at all of the sale. There was no evidence that sale consideration and possession had passed on to the vendees before attestation of the mutation. We will like to note here the views of Kashi Prasad Saksena as to time of enforcement and establishment of the pre- emption right from his treatises titled "Muslim Law as Administered in India and Pakistan":- "The time for the enforcement of the right to pre-empt and the formalities which establish this right are distinct questions in the Muslim system. The question, as regards the time of enforcement of the right of pre-emption, has assumed importance, as a Muslim cannot have his right established . without making the 'demands' which must be made after the sale is complete. The sale, according to the Muslim Law, is complete by payment of the price and the delivery of the possession by the vendor to the vendee, but in some cases, under the Transfer of Properly Act, it is not complete unless made by a registered instrument."
In Begum Vs. Muhammad Yapob (16 Allahbad 444) a full bench of the Allahbad High Court held that sale must be completed according. to Muslim Law and not in accordance with General law.
Further, in view of express provisions of Sections 3 and 4 noted above, completions of sale is to be seen in the light of principles of Islamic Law and in the absence of specific plea and the evidence of payment of sale consideration to the vendor ware constrained to hold that the oral sale in this case shall be deemed to have been completed on attestation of the mutation and not before any date prior thereto. We may also like to refer here to Parumal and others Vs. Wadero Mahomedali and others (17 1C 39) according to which assertion of right of pre-emption before completion of the sale is in-effectual.
14.As far as contention of the learned counsel for the appellants that the entire case is open on an appeal and, therefore, he is within his right to question even the superior right of the pre-emptor respondent is not tenable. Although the judgments of the two Courts were in favour of the appellants yet while defending these judgments they could question findings on issues against them by virtue of enabling provisions of Order XLI Rule 22 of the Code of Civil Procedure. The impugned judgment of the learned High Court shows that no such plea was raised before it that the pre-emptor did not have the superior right. Even, otherwise, the superior pre-emptive right of the respondent has concurrently been found by the three Courts in his favour which could not be reopened before this Court.
15.The judgments cited by the learned counsel for pre-emptor may now be examined. In the case of Muhammad Subhan supra, a learned Single Judge of the Peshawar High Court took the view that "Talb-e-Muwathibat" was required to be made immediately on completion of the sale and the pre-emptor should not have waited for attestation of the mutation. In the case in hand there was no averment that the sales had been completed before attestation of the mutations nor was there any proof on the record of completion of the sale before attestation of the mutation. In the case of Maroof Khan and another supra, an oral sale, was held to be complete after delivery of possession and recording the statement of the vendor by the Revenue Officer. In the case of Zafar Ali supra, the mutation was entered on 28.8.1987 and was attested on 15.9.1987. As per plaintiffs own showing he came to know of the sale mutation on 12/13th August, 1988 but the "Talb-e-Muwathibat" was made on 16th August, 1988. In this case the Valb-e-Muwathibat was belatedly made and that too after attestation of the sale mutation.
16.As noted above, copy of the Roznamcha Waqiati was neither produced nor the vendor or the Patwari was examined. Therefore, the entry in the mutations referring to the report recorded in Roznamcha Waqiati was not the primary evidence. Although, Roznamcha Waqiati is required to 'be maintained under the West Pakistan Land Revenue Rules, 1968 and entry made during the course of performance of official duty is admissible yet if the report contains the statement of a private individual, it is required to be proved to establish its correctness. It may also be noted here that under Section 42 of West Pakistan Land Revenue Act, 1967 it is the person acquiring a right in the land who has to make such a report to the Patwari Halqa. However, in the case in hand the report was made by the vendor and, therefore, within the scope of Section 42, it is even doubtful whether such a report, at the instance of vendor (a person alienating his right) could be said to have been recorded by the Patwari in the discharge of his official duty.
17.The question was examined in a number of cases. In Noor Muhammad Vs. Abdul Ghani (NLR 2002 AC 42) validity of a mutation of sale was in question. The beneficiary of the mutation was, inter alia, relying upon the entry in Roznamcha Waqiati. While repelling the contention the learned High Court made the following observation:-- "The mutation itself is not an instrument of title. Such a mutation in the light of a specific denial by the owner and an attesting witness of the deed would not have any probative value as the presumption stands rebutted. Similarly, an entry recorded in the Roznamcha Waqiati if not proved to have been made at the instance of the plaintiff and also not proved to have been signed by him would also have no evidentiary value.'
18.In Karam Shah Vs. Mst. Ghulam Fatima and 3 others (1988 CLC 1812) which arose out of a pre- emption matter in which the mutation was entered on 10.6.1971 and was sanctioned on 24.6.1971. In this case, the vendee's defence was that date of entry of mutation should be taken as date of completion of sale for the purpose of limitation on the assertion that the entry by the Patwari on the mutation sheet carried presumption of truth. The argument was repelled with the following observation:-- "It is difficult to agree with this proposition. An attested mutation may carry a rebuttable presumption of truth but an unattested mutation entered simply by a Patwari has no significance, importance or value in the eyes of law. Supposing if the mutation was not put up for attestation or if the mutation was rejected; the position would have been that no mutation carrying a rebuttable presumption of truth would have been in the filed. In that case only a note by the Patwari would have remained on the record and would have no value. It may be added that an attested mutation in itself is not a document of title, it is an evidence of a fact that a sale recorded therein has been made. Therefore, a note recorded by the Patwari in which statement of the parties to a sale or of a vendor is recorded has to be proved through cogent evidence. "
19.In Sattar Muhammad and 2 others Vs. Hussain and 3 others (PLD 1988 Peshawar 48) arose out of a suit for declaration based on title derived through a mutation. The plaintiff relied on the entry made by the Patwari in Roznamcha Waqiati which was repelled with the following observation:-- "It is undisputable that no presumption of correctness attaches to the entry made in Roznamcha Waqiati, as the same does not form part of the record of rights. Such an entry is, therefore, to be proved, especially when the same is to be used against the subsequent purchaser, in the same manner as any other fact is proved."
In the said case it was also observed that neither the vendor had appeared nor the Patwari who had recorded entry in Roznamcha Waqiati had appeared to prove the sale and, therefore, it was not proved.
20.In Haq Nawaz Vs. Malik Gul Hussain through Legal Heirs and another (1994 MLD 585) a learned Single Judge of the Lahore High Court took the view that Roznamcha Waqiati being a public document maintained by the Patwari in the discharge of his official duties was admissible per se.
Even if it was so, no presumption ,of truth was attached to it unless the maker was examined. We will like to observe here that to hold that an entry in Roznamcha Waqiati amounts to a sale will be laying down a hazardous proposition of law in as much as that fate of land holdings will be at the mercy of a Patwari,
21. For what has been stated above, these appeals are allowed and the impugned judgments of the learned High Court are set aside with the result that the suits filed by the respondent stand dismissed. No order as to costs.