SHER MUHAMMAD KHAN. J.--The litigations between the parties of the instant revision petition has long checkered history, spreading over more than three decades.
2. Predecessor in interest of petitioners namely Sheikh Ghulam Qasim (hereinafter called the plaintiff) instituted suit for possession through pre-emption in respect of suit lands entered in khata No,227 khatooni No,279 khasra Nos.194 to 197, 199, 201, 206 to, 214, 233, 234, 339, 340, 369, 372 to 380 consisting of 29 pieces of lands total measuring 1564 kanals 13 marlas situated in Mauza Gara Jamal Tehsil and District D.I.Khan, on 10-4-1979 in the Court of learned Civil Judge, D.I.Khan on payment of Rs,24,622 or whatever is determined by the Court.
3. The plaintiff claimed his superior right of pre-emption on the basis of contiguity and participation in immunities, appendages, such as right of way or right to discharge of water. The suit was filed under N.-W.F.P. Pre-emption Act, 1950 as it was enforced at that time. It was averred in the plaint that without serving any notice upon him respondents have purchased the suit land from Syed Rahat Ali through Syed Attique Ahmad, his general attorney vide deed of agreement to sell executed on 17-3-1979 and consent decree in Civil Suit No,465/1 of 1979, instituted on 10-3-1979, decided on 27-3-1979 by learned Additional Civil Judge, D.I. Khan. On attaining knowledge about the sale he asked respondents to hand over the disputed property by receiving the consideration but they refused, hence the present suit.
4. The respondents appeared on receiving notice from the Court and submitted their written statement and forcefully contested the suit. The learned trial Court framed as many as six issues in the light of divergent pleadings of the parties and directed them to produce their respective evidence.
5. On .10-2-1983, suit of the plaintiff was dismissed in default for non-prosecution, which was restored. on 16-3-1983.
6. On 17-11-1984 the suit was decreed in favour of plaintiff but on acceptance of appeal the learned District Judge, D.I.Khan vide judgment/decree dated 27-1-1986 set aside the judgment/ decree of the trial Court by remanding the case back for de novo trial with consent of the parties.
7. During pendency of the case in the trial Court the N.-W.F.P. Pre-emption Act of 1950 was repealed and N.-W.F.P. Pre-emption Act, 1987 was promulgated in the light of the judgment of the Apex Court delivered in the case of Govt. of N.-W.F.P. v. Syed Kamal Shah PLD 1986 Supreme Court 360.
8. Respondents submitted an application on 12-12-1988 for rejection of plaint on the ground that the plaintiff had not fulfilled the mandatory provisions of section 13 of the N.-W.F.P. Pre-emotion Act, 1987, that was accepted and the suit of the plaintiff was dismissed vide order dated 24-1-1989.
Appeal filed by plaintiff was also dismissed by learned District Judge, D.I.Khan on 12-3-1989, however, revision petition filed by plaintiff was accepted by this Court on 19-12-1989 and the case was remanded to the trial Court for decision afresh. After recording evidence, in the light of directions given by this Court in remand order dated 19-12-1989, the learned trial Court again dismissed suit of the plaintiff on 23-2-1991 for non-performance of talbs in accordance, with sharia.
Appeal, filed by plaintiff against the order of dismissal of suit before the District Judge, D.I.Khan, was dismissed on 18-6-1991 and so was the fate of revision petition, in this Court, which was dismissed by this Court in limine on 24-4-1992. Ultimately the august Supreme Court accepted appeal of the plaintiff vide order dated 22-3-1995, set aside all the judgments/decrees passed by lower Courts and remanded the case back to the trial Court with the direction to decide the case on merits.
9. The proceedings in the case were initiated in the light of the directions given by the Apex Court in remand order, in the meanwhile the plaintiff filed application under section 10 read with section 151 of the Civil Procedure Code for staying the proceedings of the case due to pendency of another suit filed by him, through which he had challenged Order No,481/PD dated D.I.Khan the 5-8-1982 of Collector Deputy Commissioner, D.I.Khan, purportedly issued under the provision of North-West Frontier Province Chashma Right Bank Canal Project (control and Prevention Speculation in Land)
Ordinance, 1971 vide which mutation attested in his favour was cancelled. The learned trial Court stayed the proceedings on 6-5-1996 but this Court vide order dated 9-2-2001, passed in exercise of revisional jurisdiction observed that the pre-emption suit should proceed in view of the stay order of the learned Senior Civil Judge dated 20-12-1982, but of course subject to the final decision of the civil suit filed by the petitioners. If the suit of the petitioners is dismissed, the decree if any, passed in their favour in the pre-emption suit will become ineffective.
10. The learned trial Court vide judgment decree dated 21-3-2003 dismissed the suit of plaintiff and appeal filed by his legal heirs also met the same fate in the Court of learned Additional District Judge-II, D.I.Khan vide judgment decree dated 22-12-2004, hence the instant revision petition.
11.Learned counsel for the petitioners argued that the impugned judgments/ decrees passed by the learned lower Courts are against law, facts and evidence on the record. It was also argued that the learned lower forums bitterly failed to appreciate the evidence brought on record in its true perspective and have passed the impugned judgments/decrees on wrong notions.
12. Learned counsel of the petitioners also argued that the learned lower Courts have wrongly declared respondents co-sharer in the pre-empted land on the basis of Mutation No,94 attested on 22-11-1978. According to him respondents are only co-sharers on the basis of the said mutation in single khasra No, 195, it cannot become base for co-sharer ship in the entire khata. Reliance was placed in the case of Malik Sultan Mahmud v. Muhammad Arhsad Khan 1991 SCMR 1542 and Gulzada v. Muhammad Usman PLD 1990 Supreme Court 465.
13. During proceedings in the trial Court respondent No,1 effected compromise with plaintiff and accepted the claim of petitioners on 16-9-2002 to the extent of his shares and to this effect recorded their joint statement in the Court, praying therein that the decree be passed in favour of plaintiff to the extent of the shares or respondent No,1 but the learned trial Court while deciding the case declined to pass decree in favour of petitioners by holding that defendant No,1 can easily transfer his share in the suit property to the, legal heirs of the plaintiff without obtaining any decree from the Court through mutation or registration. The learned counsel of the petitioners, relying on the judgment of the ' honourable Lahore High Court delivered in the case of Messrs Orient Occident (Pvt.) Ltd. v. Messrs Upaza Commercial Enterprises 2007 MLD 1374 argued that once a compromise had been recorded the Court was bound to pass a decree in accordance therewith.
14. Learned counsel of the petitioners also argued that plaintiff has become also co-sharer in the disputed khata because before decree the proprietary rights of petitioners/plaintiff have been admitted by defendant No,1.
15. He further argued that agreement to sell dated 17-6-1977 does not confer any title, therefore, respondents obtained the title of the property through consent decree passed in their favour and hence plaintiff was not bound to prove the agreement deed executed in favour of respondents for getting pre-emption decree. It was also argued that the learned lower Courts have wrongly held that the suit of petitioners is time barred because the title on respondents was conferred on the strength of decree dated 27-3-1979 and the suit was filed on , 10-4-1979. Reliance in this respect was placed in the case of Muhammad Inayat and others v. Mst. Nisar Fatima PLD 1994 SC 120 and Sikandar v. Sher Baz 2007 SCMR 1802. . It was lastly argued that the judgments/decrees passed by the learned lower courts be set aside and suit of the plaintiff be decreed as prayed for.
16. On the other hand, learned counsel for respondents vehemently rebutted the arguments advanced by learned counsel of the petitioners by arguing that respondents have purchased the disputed land on the basis of agreement to sell dated 17-6-1977 for consideration of Rs,80,000 and possession of the suit property was delivered to respondents on the date of agreement, which is specifically mentioned in the sale-deed. The plaintiff himself in Para No,1 of the plaint has admitted this fact that the property has been purchased on the basis of sale-deed dated 17-6-1977 and the consent decree obtained on 27-3-1979 was merely formality to fulfil the requirements for attestation of mutation, as the respondents apprehended some hurdles on the part of vendors in the way of attestation of mutation, therefore, the suit of plaintiff is hopelessly bared by time because it has been filed on 10-4-1979 after about 22 months from execution of the sale deed and taking possession of the disputed property. It was next argued that vide Mutation No,94 attested on 22-1.1-1978 respondents purchased 8 kanals land in khata No,227 khasra No,195 and have become co-sharers in the pre-empted land before institution of the suit and are superior right holders as compared to plaintiff. Therefore, the petitioners have no cause of action to file pre-emption suit against respondents. It was further argued that plaintiff has also filed another pre-emption suit for obtaining possession of land purchased by respondents through Mutation No,94 attested on 22-11- 1978 but due to non-deposit of pre-emption money in time that suit has been dismissed up to the High Court. He placed reliance in support of his contentions on the cases of Muhammad Akbar and another v. Allah Ditta PLD 1974 Pesh. 51, Abdul Khaliq v. Abdul Ghani PLD 1969 Lahore 249, Muhammad Muzafar Khan v. Muhammad Yousaf Khan PLD 1959 Supreme Court (Pak) 9 and Shabir Hussain and others v. Muhammad Sharif and others 1987 MLD 73 and Muhammad Sharif v. Ghulam Hussain 1995 SCMR 514.
17. In the light of arguments of learned counsel, the first question to be determined by this Court is whether any possession which is obtained under an agreement to sell can be considered as possession under the sale for purpose of limitation or not?
18. The learned counsel for the petitioners to substantiate his contention has placed reliance on the judgments of the Apex Court reported in 2007 SCMR 1802 and PLD 1994 SC 120.
19. The facts of the first referred case titled Sikandar v. Sher Buz (Supra) are that the appellant/defendant admitted that the sale was completed when the balance amount was paid and it was admitted fact that the sale consideration was paid on 9-5-1979 when mutation was attested and secondly the document, on which the defendant was relying was in fact receipt and not an agreement to sell and it was not mentioned therein that whether the possession was given after the mutation was got attested or otherwise and the amount paid vide receipt Exh.D-1 was also not in round figure which was not believed to be agreement to sell. Moreover, the witnesses of the defendant also admitted that consideration was paid at the time of mutation and possession was delivered the reafter. In that environment the Apex Court ruled, that "agreement to sell" and "sale" are neither synonymous terms nor interchangeable and the plea taken by defendant was not accepted because it was not established through evidence.
20. Another case referred to by learned counsel of the petitioners, PLD 1994 SC 120 had also different facts-, wherein the Apex Court held that the law laid down in the case of Barkhurdar v.
Muhammad Razaq PLD 1989 Supreme Court 749 supports the legal ground taken up for the first time taken before us but the plea of petitioner was not accepted because that question was not agitated in the trial Court, the first appellate Court, in the second appellate Court and for that reason neither an issue nor any finding was recorded by any Court. However, it was observed that in another case of Muhammad Masood Khan Bhatti v. Mst. Ghulam Fatima, 1987 SCMR 1206, different proposition was advanced and the author Judge of the case of Barkhurdar v. Muhammad Razaq was also included in the Bench and this question was answered in the following words; "Section 30 of the Pre-emption Act prescribing the limitation provides for possession under the sale. If the sale could not be completed without registration, possession obtained before registration of the sale could not be under the sale. Admittedly, the suit was within one year of the registration of the deed. Hence, it was within time, the possession obtained earlier to the sale being immaterial".
21. In the, instant case there is no denying to the fact that respondents have purchased the suit lands through unregistered deed dated 17-6-1977. The contents of the deed specifically mention that the disputed property has been absolutely sold to respondents on payment of Rs,80,000 out of which Rs,25,000 were paid on the date of execution of the deed and the remaining Rs,55,000 was agreed to be paid at the time of attestation of mutation or registered sale deed. Possession of the land was handed over on the date of execution of the deed.
22.. The respondents filed Suit No,465/1 on 10-3-1979 against the vendor, for declaration to the effect that they are owners in possession of the disputed property on the basis of deed dated 17-6- 1977, which was decided on 27-10-1979 with consent of the parties, strengthening the contention of respondents that possession of the property was handed over to respondents on 17-6-1977.
23.Plaintiff also in his plaint did not dispute the delivery of possession on 17-6-1077, rather he. in Para No,1 of the plaint endorsed the contention of C respondents by pleading specifically that respondents have purchased the suit lands on the basis of agreement to sell deed dated 17-6- 1977.
24.Before moving further I deem it appropriate to reproduce section 31 of the N.-W.F.P. Pre- emption Act, 1950; "Limitation of suits for pre-emption, in any case not provided for by Article 10 of the Second Schedule of the Limitation Act, 1908, as adapted by the Pakistan (Adaptation of Indian Laws).
Order, 1949' the period of limitation in a suit to enforce right of pre-emption under the provision of this Act shall, notwithstanding anything in Article 120 of the said Schedule, be one year:--
(1) In the case of a sale of agricultural land or of village immovable property from the date of attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutation maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such land or property whichever date 'shall be the earlier (2).......................
25.The statute by itself had fixed the time for institution of the suit in the case of sale of agricultural land, the date of attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutation <u>or from the date on which the vendee takes under the sale physical possession or any part of such land or property whichever is earlier. <u/>
26. In the case titled Sher Muhammad v. Raja PLD 198 Supreme Court 591, the entry of the sale was made in Roznamcha Patwari on 16-8-1951 by one of the vendors stating that the possession of the land had also been transferred to the vendees. On 14-9-1951 Mutation No,194 was entered in respect of the sale which was rejected on the ground that the vendors did not accept their liability to continue to pay the agriculture income tax which was made a condition precedent by the Collector for sanction of the mutation. The mutation was again entered on 18-3-1956 and it was sanctioned on the statements of the vendors already recorded before rejection of mutation in 1953.
The Apex Court held that the mere non-attestation of the mutation as such could not postpone the effect of the sale or entitle the pre-emptor to an enlargement of the time, for the infirmity did not attach to the sale as such but to the incidents of Agriculture Income Tax Act and its payment alone.
Where possession had been so obtained and there is a public notice of it in the manner in which it has taken place in this case the limitation would start from the date the vendee came into possession of the land.
27. The same view was reiterated in the case of Allah Yar v. Raja 1989 SCMR 802, by holding that where suit mutation was attested long after delivery of possession of land to vendee under the sale, pre-emption suit brought within one, year from attestation of mutation but beyond one year from delivery of physical possession to vendee, would not be within time.
28.The case of Burkhurdar v. Muhammad Razaq PLD 1989 Supreme Court 749, decided after the case of Allah Yar by three Member Honourable Bench of the Apex Court further confirmed the view that right to sue to enforce right of preemption, would accrue to a person on the completion of sale or foreclosure. Starting point of limitation would be from the date of attestation of sale mutation or from the date vendee takes possession of the land sold under the sale.
29. Yet in another case of Ghulam Sarwar v. Mazhar Ahmad PLD 1995 Supreme Court 677, the Apex Court did not accept the plea of limitation of defendant because the defendant had failed to establish that he had taken physical possession of land in question prior to attestation of mutation and on similar ground the plea of defendant rejected in the case of Noor Muhammad v. Ahmad PLD 1997 Supreme Court 371 the proposition has been consistently advanced that if delivery of possession of the pre-empted land is proved before attestation of mutation then limitation would start from the date of taking possession and not from the date of attestation of mutation. So, in my humble view in the instant case delivery of possession of the suit land to respondents on 17-6-1977 is admitted and limitation for filing the suit of pre-emption would start from that date. The suit, filed by the plaintiff on 10-4-1979 beyond one year from taking possession of the disputed land by respondents, is therefore, time barred.
30. The next question to be determined is that on the strength of Mutation No,94 attested on 21-11- 1978 to the extent of 8 kanals land in khasra No,195 respondents would acquire the status of co- sharer in the entire khata No,227 or they will only be co sharer in khasra No,195? In the case of Muhammad Muzafar Khan v. Muhammad Yousaf Khan PLD 1959 Supreme Court (Pak) 9 the honourable Four Members Bench held <u>that the vendee of co-sharer who owns an undivided khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharer, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to <u/> <u>the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co- sharers. It is difficult to see in. these circumstances why the vendee of specific plots acquired from a co-owner, in an undivided khata, does not become a co-sharer in the khata. <u/>
31. Learned counsel for the petitioners relied in the case of Malik Sultan Mahmud v. Muhammad Arshad Khan 1991 SCMR 1542, wherein the khata was exclusively owned by one Wahid Muhammad who sold specific khasra numbers of the khata to the petitioner and subsequently he sold other specified numbers to Mst. Kaniz Fatima who in turn sold the same to the respondent and in that circumstances it was held that purchaser of specified field number from sole owner could not be regarded as a co-sharer in the remaining khasra numbers included in the khata and the same view was earlier adopted by this Court in the case of Saadullah v. Mohabat PLD 1975 Peshawar 218 subsequently approved by the Apex Court in numerous cases including the cases of Ahmad Khan v. Sattar Din PLD 1981 Supreme Court 148, Bashir Hussain Shah v. Maskeen 1988 SCMR 1251 and Gul Zada v. Muhammad Usman PLD 1990 Supreme Court 465.
32.In the instant case khata No,227 consisting of 29 khasra numbers total measuring 1564 kanals 13 marlas per periodical record Exh.P.W.1/1 was jointly owned by Mahmud Ali Qadri son of Syed Maqsood Ali, Arshad Ali Khan, Rashid Ali Khan and Wajid Ali Khan sons, Mst. Hussan Ara Begum daughter of Irshad Ali Khan, which became exclusive ownership of Rahat Ali on the strength of decree passed by the Court of learned Senior Civil Judge, D.I.Khan dated 29-12-1976. Mutation No,94 dated 22-11-1978 was attested to the extent of 8 kanals in khasra No,195 out of total area of 181 kanals 18 marlas, in favour of respondents, therefore, the fact remains that in the entire khata respondents did not become co-sharer on the basis of the ratio decidendi adopted in the cases mentioned above.
33. One another important event, detrimental to the interest of petitioner, happened during trial in the lower Court, is the death of original pre-emptor Sheikh Ghulam Qasim. From the record of the trial H Court it is not ascertainable that when plaintiff Sheikh Ghulam Qasim had expired but memorandum of appeal reveals that before pronouncing the judgment by the trial Court he has passed away. The Apex Court in a very recent judgment delivered in the case of Nazir Hussain v.
Mushtaq Ahmad PLD 2010 Supreme Court 1048 followed the earlier judgments delivered'in the cases of Muhammad Younas v. Khushal 1989 SCMR 69, Malik Ghulam Nabi and others v. Member Board of Revenue and others PLD 1990 Supreme Court 1043 and Muhammad Ishaq v. Muhammad Sadiq 2007 SCMR 1478, has been ruled that preemptor who had no right on the date of sale, cannot improve his right after the sale by inheritance, as the cause of action had already come into existence and subsequent qualification by inheritance could not vest him with superior status after the accrual of cause of action, the right of pre-emption not being heritable. Therefore, after the death of pre-emptor Sheikh Ghulam Qasim petitioners have no superior right of pre I emption against the respondents.
34. At the end I would like to address the issue of compromise effected between petitioners and respondent No,1 in the trial Court on 16-9-2002. Once compromise had been recorded in the Court and the Court is satisfied about its genuineness then it is bound to pass decree in accordance therewith. Therefore, by accepting compromise mentioned above I modify the impugned judgments/decrees of the lower Courts, to the extent that the shares of respondent No,1, in the disputed property had been surrendered by him through compromise dated 16-9-2002, which is hereby decreed in favour of petitioners.
35. Except the above modification the revision petition, has no substance therefore dismissed with