' This judgment will dispose of the appeal in hand (R. S. A. No, 19 of 1980) as well as R. S. A. No, 246 of 1980.
2. The facts giving rise 'to these two appeals are that Mst. Taj Bibi sold certain land in favour of Mst.
Nawab Bibi, who is respondent No, 2 in the present appeal. On this, two rival suits for pre-emption were filed-one by Mst. Surraya Begum and the other by Muhammad Hayat. Muhammad Hayat is appellant in both the appeals referred to above. Mst. Surraya Begum is respondent No. 1 in the instant appeal and respondent No, 2 in the other appeal. The ostensible sale price for which the disputed land was sold was Rs, 40,000. Mst. Surraya Begum did not dispute the payment of the said price, but it was alleged by Muhammad Hayat that the sale had, in fact, taken place for Rs, 18,000. A Civil Judge of Kasur, by means of a single judgment, decreed the suit of Muhammad Hayat on payment of Rs, 18,000 and dismissed the suit of Mst. Surraya Begum. The judgment and the decrees passed by the learned Civil Judge gave rise to two appeals-one by Mst. Surraya Begum and the other by Mst. Nawab Bibi. During the pendency of these appeals before an Additional District Judge of Kasur, Mst. Nawab Bibi made an application, on 17th July, 1976, pointing out that having inspected the record she had found that zar-e-panjum (1/5th of the sale price) was not deposited by Muhammad Hayat within the period fixed by the learned Civil Judge and had instead furnished security without there being any order for his so doing. It was, therefore, prayed by her that the plaint in the suit of Muhammad Hayat be rejected. The application was contested by Muhammad Hayat but without success. As a result, the appeal filed by Mst. Nawab Bibi against the judgment and decree passed in the suit brought by Muhammad Hayat was accepted and the plaint in his suit was rejected. The plea of Mst. Nawab Bibi that she had, in fact, paid Rs, 40,C00 for the land in dispute and not Rs, 18,000 was also upheld by the learned Additional District Judge. He, therefore, while accepting the appeal of Mst. Surraya Begum, decreed her suit on payment of Rs, 40,000. Both the appeals were disposed of by the learned Additional District Judge by a single judgment.
Feeling aggrieved by the judgment and decrees of the learned Additional District Judge, Muhammad Hayat has filed the appeals before me-one against the judgment and decree of the first appellate Court by which the plaint in his suit was rejected and the other against the judgment and decree passed in the suit of Mst. Surraya Begum.
3. As regards the deposit of zar-e-panjum (1/5th of sale price), learned counsel for the appellant submitted that, it was the practice of the learned Civil Judge, Ch. Ghulam Rasul, who had made the order relating to zar-e-panjum, to direct the pre-emptor to furnish security for 1/5th of the sale price and not for the whole of it. In this connection, he invited my attention to a similar order made in the suit filed by Mst. Surraya Begum, the rival pre-emptor, by which she too was required to furnish security for 1/5th of the sale price. It was also maintained by learned counsel for the appellant that in the order passed by the learned Civil Judge the words "c.:41..,0 S" were actually thereon that sheet of paper on which the relevant order was written but it was partly torn in such a manner as to omit the said words from the order. Additionally, it was urged by him that the fact that no exception was taken to the non-deposit of zar-e-panjum by the appellant throughout the pendency of his suit showed that the objection taken before the learned Additional District Judge was not then available to the vendee (Mst. Nawab Bibi) and that it was only after the relevant order had been tampered with that she came forward, at the stage of first appeal, to raise the objection relating to the nor-deposit of zar-e-panjum, According to the learned counsel, in the grounds of appeal filed before the learned Additional District Judge also the above objection had not been mentioned. Another circumstance to which preference was made by the learned counsel was that no objection was raised by Mst. Surraya Begum regarding non deposit of zar-e-panjum by the appellant although she was a rival pre-emptor.
4. While replying to the above arguments of the learned counsel for the appellant, it was not disputed by the learned counsel for the respondents that whenever the said learned Civil Judge, Ch. Ghulam Rasul, directed a pre-emptor to furnish security instead of depositing zar-e-panjum he used to ask for security for zar-e-panjum (1/5th of the sale price) and not for whole, of the sale price. It was, however, maintained by them that in the case of the appellant the learned Civil Judge had directed him to deposit zar-e-panjum instead of giving security. They refuted the plea of the learned counsel for the appellant that the order sheet had been torn so as to demonstrate that the learned trial Court had not asked for the security but had directed the deposit of zar-e-panjum.
5. It was further pointed out by the learned counsel for the respondents that as the case was of Kasur and the record was also there, if any security was to be furnished it ought to have been furnished at Kasur but it was, in fact, furnished at Chunian, when the Civil Judge was on tour to Chunian, and that it was due to the non-availability of the record with the learned Civil Judge at the relevant time that while accepting the security he could not verify if the order actually made by him was for the deposit of zar-e-panjum or for furnishing the security.
6. It was not disputed by the learned counsel for the respondents that in the grounds of appeal as originally filed before the first appellate Court no objection was taken in regard to the failure of the appellant to deposit zar-e-panjam. The grounds of appeals were amended with the permission of the Court and then the aforesaid objection was incorporated therein. According to the learned counsel, the order of the first appellate Court allowing the amendment of the grounds of appeal- not been challenged by the appellant. Finally, it was argued by the earned counsel that even if the aforesaid objection had not been taken at any earlier stage it could be taken before the first appellate Court. For this proposition they cited Sultan and others v. Shera and others (1), Muhammad Hayat v. Rahman etc. (2) and Bahadur Shah and others v. Ahmad Shah and another (3).
7. I have carefully examined the order, dated 9th March, 1968 which, as now visible on the record, reads as under: {{URDU TEXT}} ' According to the learned counsel for the appellant in the original text of the order, after the word " {{URDU TEXT}}" and before the word "{{URDU TEXT}}" the words {{URDU TEXT}} had been written but the last mentioned two words are now missing from the original order. The submission made by learned counsel for the appellant was that the sheet of paper bearing the order was slightly torn from the right side as well as from the left side so as to omit from the left side the word " S", appearing after the word "{{URDU TEXT}}" in the third line, and the word "{{URDU TEXT}}written immediately thereafter, in the fourth line, on the right side of the paper.
8. The order in question covers five lines and the words contained in each line appear, more or less, as follows: {{URDU TEXT}} ' It is a fact that the sheet is slightly torn from the two sides, as pointed out by the learned counsel for the appellant. As I have, looked on the left side with a magnifying glass I find at the end of the third line of the order a faint line which could be the kashk of the word "S". The date "8-4-1968" occurring in the second line of the order just above the place where the word "IS" is alleged to have been written and the word "{{URDU TEXT}} appearing just below that place in the fourth line of the order are in a straight line but the word "{{URDU TEXT}}" which is now the last word of the {{FOOT NOTE}}
(1) A 1 R 1923 Lah. 257 (2) PLD 1951 B J,14
(3) AIR 1925 Lah. 209 {{FOOT NOTE}} ' third line does not fall in that straight line. All this shows that after the word "{{URDU TEXT}}there was some word in the third line which is not visible in its entirety. Similarly, I find that the portion of the sheet which has been torn from the right side has affected third and fourth lines of the order.
The first word of third line, which has been partially affected, should have read as {{URDU TEXT}}because the head of its first letter, that is "c" is clearly visible and its last two letters, namely, "a " aid"{{URDU TEXT}}'' are there in complete shape. Just below the head of the letter "c" there is the word "{{URDU TEXT}}" in the fifth line. The first visible letter of the fourth line is `{{URDU TEXT}}" but it is not in the straight line in which the words "{{URDU TEXT}}and "{{URDU TEXT}}occur. Major portion of the torn part of the leaf on the right side is the one which was there before the word {{URDU TEXT}}.
The disappearance of a part of the leaf from the left side could be caused by normal wear and tear but this does not appear to be the case with the portion which is missing from the right side.
9. In view of words l{{URDU TEXT}} used in the order I was somewhat reluctant to believe that the learned Civil Judge had directed the appellant to deposit security for zar-e-panjum because according to subsection (1) of section 22 of the Punjab Pre-emption Act 1913 when the security is asked for, it is obtained for the whole of the sale price and not for 1/5th of it (zar-e-panjum). In this connection, as stated earlier, it was submitted by the learned counsel for the appellant that the learned Civil Judge, who had made the order under examination, was in the habit of ordering deposit of security for I/5th of the sale price (zar-e-panjum) and not for the whole of the sale price, and this was also conceded by the learned counsel for the respondents. Therefore, the mention of the words {{URDU TEXT}} in the order in question does not create any difficulty for the appellant.
10. No explanation whatsoever is forthcoming as to why the vendee, Mst. Nawab Bibi did not point out the alleged lapse of the appellant in regard to the deposit of zar-e-panjum throughout the pendency of the suit of the appellant. She did not do so even in the grounds of appeal as originally filed by her and the rival pre-emptor did not raise any objection in this behalf even at the stage of the first appeal. Strangely enough, the learned Additional District Judge did not examine the plea of the appellant relating to the tearing of the sheet in question although it was expressly raised in his reply to the relevant application of Mst. Nawab Bibi.
II. Keeping in view all these factors I am of the opinion that the learned Civil Judge did require the appellant to furnish security instead of directing him to deposit zar-e-panjum and as the appellant had given the requisite security he could not be non-suited for non-compliance with the direction of the learned trial Court in terms of the provisions of subsection (1) of section 22 of the Punjab Pre- emption Act.
12. The next point raised by the learned counsel for the appellant was that the suit of Mst. Surraya Begum was time barred. What actually happened in this case was that initially Mutation No, 623 (Copy Exh. P. 4) in regard to the sale in dispute, which was an oral one, was attested on 16th March, 1967. Subsequently, the said mutation was reviewed and cancelled on 4th December, 1967, vide Mutation No, 618 (Copy Exh. D. 4). Thereafter, a fresh mutation, namely, Mutation No, 639 (Copy Exh.
P. 5), was entered on 16th January, 1968, and sanctioned on 22nd January, 1968. The land mentioned in the earlier mutation measured 138 kanals and 6 marlas but the subsequent mutation was attested in regard to 151 kanals and 14 marlas of land. Muhammad Hayat filed his suit on 9th March, 1968 which was within time with reference to the date of attestation of the first mutation. /1/sr. Surraya Begum instituted her suit, on 13th May, 1968. It was within time with reference to the date of sanction of the second mutation but was time barred qua the date on which the first mutation was attested. Learned counsel for the appellant argued that since the sale involved in the two mutations was the same, the period of limitation would run from the date of attestation of the first mutation and not from the date of the sanction of the second mutation. He cited Ganga Ram and others v. Sardara and another (1), to support his contention.
13. On the other hand, learned counsel for the respondents contended that there was only one mutation in the field and that was the mutation attested on 22nd January, 1968, inasmuch as the mutation attested on 16th March, 1967 had been cancelled. Therefore, according to him, the period of limitation would run from the date of attestation of the subsequent mutation, namely, 22nd January, 1968. He also invited my attention to paragraph 9 of the plaint in the suit of Muhammad Hayat (appellant) in which it had been stated that the cause of action accrued firstly on 16th March, 1967 when the first mutation was attested and then on 22nd January, 1968 when the subsequent mutation was sanctioned. Besides, it was urged by him that the ownership of the property in dispute was to be reflected in the record of rights with reference to the subsequent mutation and since the right of pre-emption is the right of substitution the pre-emption suit could appropriately be filed with reference to the second mutation and not the first one. Another factor to which my attention was invited by the learned counsel for the respondents was that even the appellant had filed suit for possession of 151 kanals and 14 marlas of land which is the area given in the second mutation and not for possession of 138 kanals and 6 marlas of land which is area mentioned in the first mutation. For all these reasons, it was maintained by the learned counsel for the respondents that the suit brought by /list. Surraya Begum was within time.
14. The facts of the case of Ganga Ram and others, cited by learned counsel for the appellant, were that certain land was sold by means of a registered sale-deed. In the sale deed, however, correct khasra numbers were not given. Subsequently, a mutation was attested in regard to the said land by giving correct khasra numbers. When question of limitation was raised in the aforesaid case, it was ruled by a learned Single Judge of the Chief Court, Punjab, that since the land intended to be transferred was the same, the period of limitation would run from the date of registration of the sale deed and not from the date of attestation of the mutation. There was no difference of area of the land in the cited case which is very much there in the case before me. As already stated, the area involved in the {{FOOT NOTE}}
(1) 64 P L R 1916 {{FOOT NOTE}} ' first mutation was 138 kanals and 6 marlas but the area given in the second one was 151 kanals and 14 marlas. Further, in the case under report the sale deed as well as the mutation were holding the field but in the present case there is only one mutation which is in the picture and that is the subsequent one, because the earlier mutation had been cancelled on review. In addition, according to section 30 of the Punjab Pre-emption Act, read with Article 10 of the First Schedule to the Limitation Act, 1908 if a sale is made by means of a registered deed which is also followed by a mutation, the period of limitation is to be calculated from the date of the registration of the sale deed and not from the date of the sanction of the mutation. In the circumstances, the cited case being distinguishable on facts, cannot be made use of by the appellant.
15. According to section 30 of the Punjab Pre-emption Act, the sale involved in the case before me could be pre-empted within one year of the attestation of the mutation. The mutation as contemplated by the provisions of section 30 is the one which is holding the field at the time of the filing of the suit. In the instant case, the period of limitation with reference to the first mutation was still available when that mutation was cancelled. With the cancellation of the first mutation and till the attestation of the second one, there was no mutation with reference to which the pre-emption suit could have been filed. The fact of the matter is that it was not only Mst. Surraya Begum (respondent No. 1) but also the appellant, Muhammad Hayat who had pre-empted the sale in dispute after the attestation of the subsequent mutation. The only difference between the two is that whereas the suit of the appellant is within time qua the earlier mutation as well as the subsequent one, the suit of his rival pre-emptor, Mst. Surraya Begum is within time with reference to the subsequent mutation only. It was, however, conceded by the appellant is paragraph 9 of the plaint of his suit that the cause of action had accrued firstly on 16th March, 1967, when the earlier mutation was attested, and then on 22nd January, 1968, when the subsequent mutation was sanctioned. He could not help saying so because like Mst. Surraya Begum he was claiming 151 kanals and 14 marlas of land given in the second mutation and not 138 kanals and 6 marlas of land mentioned in the first one. Since the right of pre-emption is the right of substitution, both of them were well-advised to claim 151 kanals and 14 marlas of land, as given in the subsequent mutation and not 138 kanals and 6 marlas of land involved in the cancelled mutation. If for the purpose of securing 151 kanals and 14 marlas of land, the appellant had himself maintained that the cause of action had accrued on 22nd January, 1968 also, due to the attestation of the second mutation, why can't Mst. Surraya Begum make use of that cause of action? Undoubtedly, her suit is within time, with reference to the date of sanction of the second mutation I, therefore, uphold the finding of the learned Additional District Judge that the suit brought by her was not time barred.
16. It was pointed out by the learned counsel for the appellant that the learned Additional District Judge did not record any finding on the issue relating to the right of pre-emption of the appellant nor did he dispose of his objection that the sale price as entered into the mutation was not actually paid or fixed in good faith. Similarly, it was submitted by the learned counsel for the vendee, Mst.
Nawab Bibi (respondent No, 2) that, according to her, the appellant had waived his right of pre- emption, if any, but the issue framed by the trial Court in this behalf had not been adjudicated upon by the learned Additional District Judge. In view of all this, learned counsel for the parties desired that if the finding of the learned Additional District Judge on the question of the deposit of zar-e-panjum was reversed, the two appeals may be remanded to him for fresh decision after recording findings on the issues which were not decided by him. Since I have not maintained the finding of the learned Additional District Judge on the question of the deposit of zar-e-panjum, the first appeals giving rise to the second appeals before me will have to be sent back to him as desired by the learned counsel for the parties.
17. I, therefore, accept the two second appeals in hand, set aside the impugned judgment and decrees of the learned Additional District Judge and remand the first appeals, out of which the said appeals have arisen, to the learned Additional District Judge with the direction that he shall decide the issues which were not disposed of by him earlier and re-decide the first appeals after hearing the parties, counsel and in accordance with late. There shall be no order as to costs.