' ANWAR ZAHEER JAMALI, J.---By this civil appeal, legal heirs of late Abdul Khaliq son of Muhammad Khan (in short "petitioner") call in question legality and propriety of judgment dated 12-7-2000, in R.S.A. No,54 of 1995, passed by learned Single Judge in the Lahore High Court, whereby the said RSA was allowed, judgment of the appellate Court dated 26-9-1995 challenged therein was set aside; resultantly that of the trial Court dated 16-9-1984, thereby decreeing the suit for pre-emption, instituted by respondent No,1 Ch. Rehmat Ali (now represented by his legal heirs), was restored.
2. Relevant facts of the case necessary for the disposal of this appeal are as under.
3. On 7-2-1983, Ch. Rehmat Ali, the predecessor-in-interest of respondent No,1 (i) (a) to (f) and (ii) to (iv) (hereinafter referred to as "respondent No,1") had instituted Civil Suit No,157 of 1983 before the Court of Senior Civil Judge, Sargodha, for possession through preemption in respect of 1/6th share i,e, 186-1/2 canals out of total area admeasuring 1119-1/2 kanals, Khewat No,179, Khatooni No,264 to 268, Jamabandi for the year 1979-80, situated in Chak No,136, Janoobi, Tehsil and District Sargodha.
His claim was based on mutation entry No,345 dated 23-2-1982 (Exp.P.6), whereby, according to him, respondent, No,2 Amanat Ali had sold suit land to the petitioner Abdul Khaliq for a consideration of Rs,2,07000 in lieu of a decree passed by the Civil Court on 8-2-1982. The right of pre-emption claimed and exercised by respondent No,1 was premised on his assertions that he as owner of some agricultural lands in same revenue estate, which status/qualification was not possessed by the petitioner, thus entitled for a decree of possession through pre-emption in respect of suit land.
4. The petitioner disputing such claim of respondent No,1 filed his written statement in the suit on 10-6-1983, wherein maintainability of. The suit was challenged on various legal grounds. In addition to it, on facts it was averred that the actual sale of suit land, had taken place on 30-4-1978, through a registered deed in the manner that the petitioner and respondent No,2 were joint 'owners of the land through said conveyance deed. However, when dispute arose between them about their joint claim, the matter was referred to the sole Arbitrator through a reference, who gave his award in favor of petitioner, which was subsequently made rule of the Court in terms of the decree of Civil Court dated 8-2-1982, and the mutation entry No,345 dated 23-2-1982 was merely its follow-up and not in itself a sale, which could confer any right in favor of respondent No,1 to pre-empt the suit land of the petitioner.
5. The respondent No,2 Amanat Ali had filed his separate written statement in the suit on 5-6-1983, wherein he also strongly disputed the claim of the respondent No,1 to pre-empt the suit land on the basis of Mutation No,345 dated 23-2-1982, and endorsed the stance of petitioner that by such mutation entry no sale had taken place.
6. On these divergent pleadings of the parties, as many as 15 issues were framed in the suit, whereafter, at the stage of evidence, from the side of the respondent No,1, P:W.1 Khuda Bukhsh, Naib Office Kanango Sargodha, P.W.2 Ghulam Farid, Patwari Halqa, P.W.3/respondent No,1 Ch. Rehmat Ali appeared as witnesses and produced the relevant record as Exh.P-1 to P-15. From the side of the petitioner and respondent No,2, they examined D.W.1 Muhammad Akram Senior. Clerk of Agricultural Engineering Department Sargodha, D.W.2 Khushi Muhammad, D.W.3 Muhammad Shabbir, D.W.4 Najeebud-Din, D.W.5 Sardar Muhammad, respondent No,2 Amanat Ali D.W.6 and petitioner Abdul Khaliq as D.W.7, and produced documents Exh.D/1 to D/18.
7. The trial Court of learned Senior Civil Judge, Sargodha, vide its judgment dated 16-9-1984 in Civil Suit No,157 of 1983, keeping in view its findings on issues Nos.5, 7, 8, 9 and 11 to 14, in favor of respondent No,1 decreed his suit for possession through pre-emption in respect of the suit land, subject to the condition that he shall deposit the sale consideration of Rs,2,07,000 and improvement "charges of Rs,50,000 in the Court on or before 16-10-1984.
8. The petitioner being seriously aggrieved by such judgment of the trial Court preferred Civil Appeal No,134 of 1984 (re: Abdul Khaliq versus Rehmat Ali etc.) before the Court of learned Additional District Judge, Sargodha. This appeal was .Heard and allowed by the appellate Court in favor of the petitioner, precisely for the reason that there was no actual sale in terms of Mutation No,345 dated 23-2-1982, which was merely an endorsement and affirmation of the title of the petitioner in respect of the suit land on the basis of benami sale deed dated 30-4-1978 qua the decree to this effect passed by the Civil Court in his favor on 8-2-1982. Thus, in that context no right of pre-emption was available to the respondent No,1
8. Against the judgment of the appellate Court, on 18-10-1995, R.S.A. No,54 of 1995 was preferred by respondent No,1, which was heard and allowed, vide impugned judgment dated 12-7-2000 for the reason that the provisional Court came to the conclusion that Mutation No,345 dated 23-2-1982 had given a right of pre-emption to the respondent No,1 as it was an independent transaction of sale through which sale consideration had passed from the petitioner to the respondent No,2. The result of such findings of the provisional Court was that the judgment of the appellate Court impugned before it was set aside and once again the suit for possession through pre-emption instituted by the respondent No,1 was decreed in his favor.
9. Ch. Mushtaq Ahmad Khan, learned Senior Advocate Supreme Court for the petitioner, after detailed narration of relevant facts, strongly contended that sale of pre-empted land in favor of petitioner Abdul Khaliq had actually taken place in terms of the registered sale deed (Exh.D/6) dated 30-4-1978, while the mutation entry No,345 dated 23-2-1982 was merely its follow-up in view of the award to this effect passed by the sole Arbitrator on 10-11-1981, which was made rule of the Court vide decree dated 8-2-1982, passed by the Civil Court, therefore on 23-2-1982 no actual sale had taken place, which could be made basis for exercising right of pre-emption over the suit land by the respondent No,1. He further contended that there was no occasion for passing of sale consideration from the hands of petitioner to respondent No,2 at the time of attestation of said mutation entry, as petitioner had already paid sale consideration to the extent of his share in the suit land to him at the time of execution of sale deed dated 30-4-1978. This fact was comprehensively discussed by the sole Arbitrator in his award dated 10-11-1981, which was made rule of the Court in terms of the decree passed by the Civil Court on 8-2-1982. He also contended that the possession of suit land to the extent of petitioner's share was delivered to him, much prior to the mutation entry No,345 in the revenue record, and in this regard his claim was not only duly supported by respondent No,2, but also by many other witnesses examined in defense from his side, and plethora of documentary evidence produced in Court, which was accepted and believed by all the three Courts below while examining and deciding the issue of improvement in the suit land qua awarding compensation in favor of petitioner. But all these important legal and factual aspects of the case escaped the sight of the provisional Court while passing its impugned judgment. To fortify this submission, he also made specific reference to the deposition of two attesting witnesses of the sale deed Exh.D/6 i,e,: D.W.4 Najeeb-ud-Din and D.W.5 Sardar Muhammad, one of whom subsequently also acted as sole Arbitrator to resolve the dispute between the petitioner and respondent No,2 in terms of the reference jointly made to him by them.
Ch. Mushtaq Ahmad Khan, concluded his submissions with the note that the observation of the learned provisional Court that at the time of mutation entry No,345 dated 23-2-1982, consideration had passed from the hands of petitioner to the respondent No,2, thus such mutation should be treated as independent sale is result of patent misreading of record, as this assertion is strongly negated from the overwhelming evidence brought on record by the petitioner as well as from the fact that the decree dated 8-2-1982, as a consequence whereof mutation entry No,345 was made, contained no such stipulation for payment of Rs,2,07,000 at the time of mutation. Thus, reference of any past payment of sale consideration was of no legal consequence. Moreso in the circumstances when this aspect of the case was strongly denied by the petitioner and respondent No,2 in their respective written statement, as well as in their evidence, and there was also no rebuttal to it.
11. Conversely, Mian Allah Nawaz, learned Senior Advocate Supreme Court for the respondent fully supported the impugned judgment of the provisional Court in favor of the respondent No,
1. In the first place, he challenged the maintainability of this civil appeal on the ground that initially on 24- 7-2000, instead of filing a civil appeal, petitioner had followed a wrong remedy by filing civil petition for leave to Appeal No,1913-L of 2000, which was subsequently after four years converted into civil appeal, subject to all just exceptions in terms of Court order dated 30-8-2004 passed in Civil Miscellaneous Application No,1630-L of 2003, therefore, the said appeal is barred by time. In support of this submission, learned counsel placed reliance upon the case reported as Qaisar Mushtaq Ahmad v. Controller of Examinations (PLD 2011 SC 174), which is a three member bench judgment of this Court, but on entirely different facts, thus distinguishable and not applicable to the present case.
12. As to the merits of the case of respondent No,1, learned Senior Advocate Supreme Court strongly contended that in respect of suit land the whole process of arbitration, award and making it rule of the Court through a civil Court decree was a collusive and fraudulent game played by the petitioner and respondent No,2 to defeat the pre-emption right of respondent No,
1. In this background of the matter the provisional Court was fully justified in holding mutation entry No,345 dated 23-2-1982 as an independent sale, thereby conferring and accepting the right of preemption over the suit land in favour of respondent No,
1. However, in this context when he was confronted with the averments of respondent No,1 made in his plaint, he frankly conceded that no such plea of collusion or fraud by the petitioner and respondent No,2 was raised by the respondent No,1 in his plaint. Learned Senior Advocate Supreme Court again made reference to the contents of mutation entry No,345 dated 23-2-1982 to show that it clearly contained an endorsement regarding payment of sale consideration of Rs,2,07,000, which was rightly taken into account by the provisional Court to sustain the claim of respondent No,1, relating to his right of pre-emption over the suit land. Further, dilating upon the concept of "benami" transaction vis-a-vis the case of the petitioner in this regard, he contended that in order to prove the fact that the transaction through registered sale deed dated 30-4-1978 was "benami" one to the extent of his share in the suit land, heavy burden was upon the petitioner, which he miserably failed to discharge and this aspect of the case strongly supports the claim of respondent No,1 that mutation entry No,345 dated 23-2- 1982 was an independent transaction of sale, therefore, based on such transaction exercise of right of pre-emption by him was fully justified, as held by provisional Court in its impugned judgment. To fortify this view he placed reliance upon the cases of Muhammad Siddiqi v. T.J. Ibrahim and Company (2001 SCM R 1443) and Karim Bakhsh v. Jindwadda Shah (2005 SCM R 1518). We have gone through these two judgments, which are again on different premises, thus distinguishable and of no help to the case of respondent No,1.
13. We have carefully considered the arguments advanced before us by parties' counsel, perused the whole material placed on record, including the three judgments passed by the lower forums. In the first place, we take up the question of maintainability of this civil appeal qua limitation. In this regard, we 'find that indeed on 24-7-2000 petitioner instead of civil appeal filed a civil petition for leave to appeal and thereafter in the year 2003, he submitted Civil Miscellaneous Application No,1630-L of 2003 for its conversion into civil appeal, to remove this legal infirmity, which was allowed vide order dated 30-8-2004, but subject to all just exceptions. Had it been a case where the petitioner had filed civil petition for leave to appeal beyond the prescribed period of limitation meant for filing of civil appeal i,e, 30 days, then one could genuinely say that due to such negligence on his part qua bar of limitation, valuable legal rights have accrued in favour of the respondent No,1, which could not be done away so lightly. But, in the instant case perusal of case record reveals that against the impugned judgment dated 12-7-2000, civil petition for leave to appeal was filed on 24-7-2000 i,e, within 12 days, therefore, due to grant of permission for its conversion A into civil appeal in terms of order dated 30-8-2004, it was deemed to have been so instituted from the same date, thus, no prejudice was caused to the respondent No,1 nor any question of limitation could legitimately be raised as regards filing of such civil appeal. )
14. In so far as merits of the case are concerned, it would be seen that admittedly the sale of 373- 1/4 canals land for a total consideration of Rs,4,15,000 had taken place through a registered sale deed executed in the name of respondent No,2 Amanat Ali. As per claim of the petitioner, this land was jointly purchased by him and respondent No,2 Amanat Ali in equal share from their joint business funds and later on possession was accordingly received by them. Subsequently, when some dispute arose as to the benami share of petitioner in the suit land, in the year 1981 it was referred to the sole Arbitrator Sardar Muhammad son of Umar Din, D.W.5 (one of the attesting witnesses. Of sale deed Exh.D/6), who gave an award (Exh.D/8) to this effect in favour of the petitioner on 10-11-1981, which was made rule of the Court through due process of law, vide judgment and decree dated 8-2-1982, and this decree attained finality, as till this date neither the respondent No,1 nor anybody else challenged it on any factual or legal ground. From these undisputed facts, it is evident that mutation entry No,345 dated 23-2-1982 was nothing but confirmation of title of the petitioner in the suit land to the extent of his half share in terms of the registered sale deed dated 30-4-1978 read with award dated 10-11-1981 and decree dated 8-2- 1982, and it was not an independent transaction of sale. This fact gains further support from the deposition of respondent No,2 Amanat Ali (D.W.6) and petitioner Abdul Khaliq (D.W.7), who had firmly deposed about all these facts in a confidence inspiring manner and that no money had changed hands at the time of mutation entry No,345 dated 23-2-1982, while recital of such fact in the said entry was only with reference to the past payment of sale consideration at the time of execution of sale deed dated 30-4-1978 (Exh.D/6).
15. When we look at the transaction of sale of suit land to the extent of the claim of the petitioner from another angle, in the background of purported benami Sale Deed dated 30-4-1978 (Exh.D/6); the contents of reference agreement/application (Exh.D/7), the award dated 10-11-1981 (Exh.D/8), which was made rule of the Court vide Civil Court decree dated 9-2-1982 (Exh.D/10), we find that effect of combined reading of these documents is that petitioner had acquired actual title in the suit land as its real owner through registered Sale Deed dated 30-4-1978 (Exh.D/6) while subsequent dispute between the petitioner and respondent No,2 in this regard was resolved through the Award, followed by Civil Court decree dated 9-2-1982 which stood implemented accordingly vide mutation entry No,345 dated 23-2-1982. As all these B events have occurred much prior to asserting his claim for pre-emption or filing the suit for pre-emption by the respondent No,1 on 17-2-1983. And even the pleadings of respondent No,1 in his plaint are absolutely silent in this regard, therefore, it cannot be said that it was a collusive and fraudulent transaction between the petitioner and respondent No,2 merely to defeat the pre-emption claim of respondent No 1. This fact is further established from the mode of payment of sale consideration shown in the mutation entry No,345 dated 23-2-1982, which is only acknowledgment of earlier payment to the extent of half of the total sale consideration amounting to Rs,415,000 paid under the registered Sale Deed dated 30-4-1978. The findings of the appellate court on issues Nos.11 to 13 were thus in our view based on proper appreciation of evidence and un-exceptionable.
16. The first appellate Court in its impugned judgment has assigned cogent and valid reasons to hold that on the basis of mutation entry No,345 dated 23-2-1982, no right of pre-emption had accrued in favor of the respondent No,1, being only affirmation of his half share in the suit land as per registered sale deed, but the provisional Court failed to advert to or rebut such findings of the first appellate Court by recording any convincing, sound or cogent reason. The mutation entry also speaks C only about payment of Rs,2,07,000 as sale consideration, but does not denote that any payment was actually made at the time of attestation of such mutation entry, rather it was a mere reference to the payment of earlier sale consideration, With reference to sale deed dated 30-4- 1978, wherein respondent No,2 held 50% share of the petitioner in the suit land as benamidar and this dispute was resolved in terms of the award, -which was made rule of the Court.
17. When we look at the averments made by the respondent No,1 in the plaint of his suit, we find that nowhere he had even alleged any collusion or foul play between the petitioner and respondent No,2 by way of arbitration proceedings or passing of such decree in favor of the petitioner. The respondent No,1 is, therefore estopped from taking such factual plea beyond his pleadings at evidence stage nor any evidence to this effect led by him could be legally looked into or taken into consideration. As a result of this simple and well settled proposition of law, which gains full support from the pleading of the parties, particularly, that petitioner did not make any payment to respondent No,2 at the time of mutation entry No,345 dated 23-2-1982, there remains no life in the claim of respondent No,1 to assert his right of preemption over the suit land.
18. Additionally, the provisional Court in its impugned judgment also seems to have not taken into account the limited scope of its jurisdiction under section 115, C.P.C. Which is primarily meant for correction of jurisdictional defects in the proceedings or some patent illegality/ irregularity affecting the merits of the case and not merely for substituting and replacing its own findings with the findings of the appellate Court, unless the same were found to be arbitrary, perverse, fanciful and based on misreading or non-reading of material pieces of evidence, which is not the position in the case in hand.
19. Forgoing are the reasons for our short order dated 14-12-2001 which reads as follows:-- - "For the reasons, which we propose to record later on, this appeal is allowed and consequently the suit for pre-emption instituted by Ch. Rehmat Ali is dismissed".