' AMIN-UD-DIN KHAN, J.--- Through this appeal the appellants have challenged the judgment and decree dated 18-9-2006 passed by the Additional District Judge, Rahimyarkhan whereby appeal filed by the respondent was accepted and judgement and decree dated 20-10-1977 passed by the Civil Judge decreeing the suit of the appellant was set aside.
2. Brief facts of the case are that Rais Qabil predecessor of appellants filed a suit for preemption on 4-3-1969 to pre-empt the sale of land, fully described in the head note of the plaint, through Mutation No.191 attested on 5-3-1968. The suit was filed on the basis of superior right of pre- emption being co-sharer of Khata in which the suit-land is situated. The respondent/defendant contested the suit and filed written statement contending that the suit is time-barred as well as plaintiff has no superior right of pre-emption. The learned trial court framed various issues and invited the parties to produce their respective evidence. The plaintiff produced only documents in his affirmative evidence and defendant/respondent produced his oral as well as documentary evidence but his rest of the evidence was closed under Order XVII, Rule 3, C.P.C. On 17-6-1972. The original plaintiff Rais Qabil died on 8-1-1971 and his sons became party as plaintiffs and one of the plaintiffs namely Abdul Ghafoor appeared as P.W.1 in rebuttal evidence on 20-10-1977 and closed the evidence. The learned trial court vide judgment and decree dated 20-10-1977 decreed the suit in favour of the plaintiffs accepting their claim of co-sharer in the ,khata of suit property. The vendee/defendant filed an appeal before the first appellate court which was dismissed vide judgment and decree dated 29-4-1978. The vendee/respondent filed R.S.A. No.31 of 1978 before this Court which was accepted on 24-5-1980 and-case was remanded to the first appellate court on the ground that first appellate court while deciding appeal has just emphasized the contentions of the appellant with regard to the dosing of evidence under Order XVII, Rule 3, C.P.C. And has not decided the appeal on merits and especially had not touched the findings recorded by the learned trial court on issues No.1 and 3. After this remand, the plaintiff mad an application before the first appellate court on 29-10-1980 contending therein that if the plaintiff is not proved to be joint owners of the Khata in dispute then he is owner in the estate, therefore, he has right of pre- emption. Learned first appellate, court while deciding the appeal on 11-7-1981 also allowed the application for amendment in the plaint and dismissed the appeal, holding that preemptor was at least owner in the estate. Then vendee/defendant again filed' R.S.A. No.33 of 1981, this appeal was dismissed by this court vide judgment and decree dated 26-9-2001.Then vendee/defendant filed leave to appeal before the august Supreme Court of Pakistan C.P.L.A. No.860-L of 2002. Leave was converted into appeal and was allowed on 15-1-2003 and the case was remanded back before the first appellate court with the direction that defendant be permitted to file amended written statement and necessary evidence may be lead to controvert the preferential right claimed as owner in the estate.
3. After remand I have noticed that the plaintiff has filed amended plaint on 12-5-2004 and there are two amended-written statements by the defendant, one is dated 6-3-2004 and the other is dated 27-5-2004 and the learned first appellate court then recorded evidence of one of the plaintiffs namely Rais Gul Muhammad as P.W.2 and also received documentary evidence Exh.P-4 to Exh.P-11. On the other hand statement of DW.6 Hamid Ullah as attorney of original defendant/vendee was recorded and also received the documentary evidence produced by the vendee/defendant and vide judgment and decree dated 18-9-2006 first appeal court accepted the appeal filed by the defendant/vendee and set-aside the findings on Issues NosA and 3.
Resultantly, the suit was dismissed, hence this R.S.A. No.17 of 2006.
4. Learned counsel for the parties agree that the points for determination before this court in this appeal are as under:---
(i) Whether the plaintiff was owner of the Estate?
(ii) Whether the defendant/vendee was also owner of the estate?
(iii) Whether the suit was time-barred?
' All these points cover Issues Nos.1 and 3. It is admitted between the parties that Transfer of Property Act No. IV of 1882 was applicable in the urban as well as rural area of Bahawalpur Estate since 28-5-1931 to 10-9-1979, when its application was withdrawn through Notification No.766- 79/1/70 LRI dated 23rd August, 1979 (Pb.Gaz.Ext 10.9.1979). The other point agree between the parties is that though the impugned sale is in violation of section 54 of the Transfer of Property Act but both the learned counsel for the parties agree that in the light of the judgment of the August Supreme Court of Pakistan (PLD 1967 SC 411) titled Abdul Karim v. Fazal Muhammad Shah the definition under section 3(5) of the Punjab Pre-emption Act, 1913 is obviously wider than the one under section 54 of the Transfer of property Act, therefore for the purpose of pre-emption this transaction of sale entered through mutation will be presumed to be a sale.
5. Learned counsel for the appellants states that plaintiffs have proved by their statements recorded as P.W.1 and P.W.2 and further through Exh.P.1, Jamanbandi that they were owners in the impugned khata and further that defendant/vendee was not having this right. Further that the transaction of sale was completed on the attestation of mutation and not before that therefore, he states that the judgment and decree passed by the first appellate court is not sustainable in the eyes of law and the decree passed by the trial court was wrongly reversed by the firSt appellate court.
6. On the other hand, learned counsel for the respondent states that though the suit was filed on the basis of co-owner in the khata but when the legal position was clear that plaintiff is not co- owner in the khata in dispute in the light of rules 7-A and 7-A-(2) framed under the Displaced Persons Land Settlement Act, 1959. When in a khata, there are evacuee and non-evacuee interest and with the implementation of non-evacuee interest khata is automatically presumed to have been partitioned. In case in hand the non-evacuee interest was incorporated in the Jamanbandi by incorporating RL-II No.17 which was in favour of the vendors of the suit of pre-emption. This situation insisted the plaintiff to apply for permission to amend the suit and claim right of pre- emption on the basis of being owner, of the estate. Learned counsel states that original right claimed by the pre-emptor being joint owner in the khata has been relinquished, therefore, learned counsel further states that under section 4 of the Pre-emption Act, 1913 the right which was claimed by the-original plaintiff, his successor cannot claim any other right of preemption. Learned counsel for the respondent further submits that august Supreme Court of Pakistan while remanding the case allowed the vendee/ defendant to file an amended written statement. The plaintiff was not allowed to file amended plaint. Learned counsel further states that in violation of the order of the august Supreme Court of Pakistan, the plaintiff filed an amended plaint which was in clear violation of the orders of august Supreme Court of Pakistan. Learned counsel further relying upon Order VI, Rule 18, C.P.C. Submits that the party can amend its pleadings within the time prescribed by the court while granting permission of amendment. If time is not granted then the period of limitation is 14 days and not later than that. Learned counsel states that in case in hand the amendment was allowed vide order dated 11-7-1981 whereas the amended plaint was filed on 12-5-2004 which was not permissible under the law and august Supreme Court of Pakistan has . Also not allowed the plaintiff to file the amended plaint. Learned counsel further states that Habib Ullah father of the vendee/defendant died on 14-11-1968. The copy of his death certificate is on the file as Exh.D.2 and further states that one of the plaintiffs when appeared as P.W.2, he admitted that father of the defendant/vendee was joint owner of the khata in dispute. Learned counsel further states that the impugned mutation was admittedly entered on 2-12-1966 and all the proceedings like payment of the money and possession was transferred under the sale on the said date and its attestation was just a formality.
7. I have heard the arguments advanced by the learned counsel for the parties and have examined the material available on record.
8. The plaintiffs to succeed in their case must stand on their own legs and furthermore when a. Suit for pre-emption be filed, the plaintiffs are more burdened with the quality and quantity of evidence to prove their version as they are asking the court to accept their right superior to that of vendee and decree of immoveable property be granted in their B favour. In instant case, the original plaintiff namely Rais Qabul never appeared in the court as witness. Originally this suit was filed on the basis of superior right of pre-emption being joint owner of the Khata in which the suit-land is situated but as I have observed that at first appellate stage the plaintiff sought permission to amend the plaint and c prayed that on the .Basis of being co-owner in the khata they be allowed to plead their right in their plaint. In affirmative evidence, the plaintiffs produced just some documents. None of the plaintiffs appeared as witness. P.W.1 got recorded his statement in rebuttal on 20-7-1977. It is well settled law that statement recorded in rebuttal cannot be read in affirmative evidence. P.W.2 who got recorded his statement after then remand, both these witnesses have not asserted that plaintiff i,e, their father was having superior right of pre-emption. In the statements of E . Both these witnesses, they have asserted their superior right of pre-emption. They were bound under the law to prove superior right of preemption as the original suit was filed by their father.
After his death on 8-1-1971 they became party in the suit. Their assertion that they have superior right of pre-emption is not helpful to prove the superior right of pre-emption at the time of filing of the suit. Further I have already observed that even P.W.1 got recorded his statement at the time of rebuttal therefore his statement cannot be read in affirmative part. Further P.W.2 admitted in his statement that father of the defendant/vendee died on 14-11-1968, he has admitted that Habib Ullah Khan father of the defendant/vendee was owner in the estate of Mauza Ahmad-abad where the property in dispute is situated. In this view of the matter it is an admission that defendant/vendee became owned in the estate where the property in dispute is situated on 14-11- 1968 and the suit was filed on 4-3-1969. The decree referred by the plaintiff/appellants which is Exh.P-7, I have noticed that it is not a decree through which rights of the parties have been conclusively extinguished in some properties and create rights in some property because it is not conclusive decree as it has been passed on the basis of compromise and most of the event depends upon the future compliance by the parties of this compromise who are party to that decree. Therefore, when plaintiffs themselves admitted the vendee to be owner in the estate therefore, in this way he has not proved the superior right of pre-emption which is prerequisite for grant of decree in a suit for preemption filed under the Pre-emption Act, 1913. Further that the defect of non-appearance in the affirmative evidence by the plaintiffs is also in their way. Further non-filing of the amended plaint within 14 days as F provided under Order VI, Rule 18, C.P.C. Is also fatal to the case of the appellants. Furthermore the right in accordance with section 4 of the preemption Act, 1913 which was available to the plaintiffs was not pressed while filing the suit therefore, it cannot be pressed by his successors.
9. Further in my view the right of pre-emption which the plaintiffs assert after the expiry of limitation of filing of the suit, to the extent of that right the suit became time-barred because law of pre- emption being substantive and special law therefore plaintiffs must assert their right within the prescribed period of limitation. In this view of the matter, in my view the general principle xelating to the grant of amendment of the pleadings is not applicable in the suit for pre-emption. No doubt in other cases when amendment is allowed it is presumed that the amendment takes effect retrospectively from the filing of the original pleadings but in case in hand in my view, it will be presumed that the amendment will take effect from the date of allowing the amendment. If from this angle the plaint be seen, it is time barred. Further one of the plaintiffs admitted that they acquired the titled in Mauza Ahmad-abad through an oral mutation and in the light of judgment of this court reported as Muhammad Bux v. Zia Ullah and others (PLD 1971 B.G. 42), a person allegedly acquiring title through an oral mutation in violation of section 54 of the Transfer of Property Act, 1982 cannot claim the right of pre-emption, further when all the formalities of impugned sale were completed in the year 1966, attestation of mutation was just, a formality in this regard Reliance is placed on Jangi v. Jhanda and others (PLD 1961 (W.P.) B.G. 34), therefore suit is also time-barred.
' In the light of what has been discussed above, I see no infirmity or illegality in the judgment and decree passed and findings recorded by the first appellate court vide judgment dated 18-9-2006.
Resultantly, the R.S.A. Having no merits is dismissed with costs throughout.