1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to two unsuccessful plaintiff pre-emptors in two different matters to examine whether they could on the basis of sales admitted but otherwise in violation of section 54 of the Transfer of Property Act enforce their superior right of pre-emption against the respective vendees.
2. By mutation No. 1065 attested on 22-6-1966, 100 Kanals of land in village Tibbi Data Khan, Tehsil and District Bahawalpur was purchased by Zia Ullah and others, the defendants-respondents in Civil Appeal No. 17/1973. Muhammad Bakhsh sought to pre-empt the sale on the basis of being a co-- sharer in the Khata on the strength of mutation No. 1031 attested on 4-6-1965 which was noted in the remarks column of the Jamabandi for the years 1962-63. The contest centred round the superior right of pre-emption of the plaintiff-appellant Muhammad Bakhsh which was claimed on the basis of such purchase. The trial Court decreed his suit on 9th February, 1968 holding that the presumption raised by the attestation of the mutation and the notes made in the Jamabandi was not rebutted by any evidence on the record. On first appeal the learned District Judge examined the implications of decisions in Jangi v. Jhanda and others (PLD 1961 (W. P.) B J 3 4) and Abdul Karim v. Fazal Muhammad Shah (P L D1967 SC 4 1 1) and held that the plaintiff pre-emptor had not acquired any interest in immovable property as section 54 of the Transfer of Property Act had been violated. The appeal was accepted and the suit dismissed. The pre-emptor's second appeal was also dismissed by the High Court in limine on 22nd April, 1971.
3. The learned counsel for the appellant pre-emptor urged that under the law in order to successfully pre-empt the sale one of the qualifications pres--cribed is co-sharership and not necessarily co- ownership. The concept of co-sharership is different from co-ownership and includes within its connotation lesser interest than that of the owner. Reliance for this submission is placed on Amarsing and others v. Hussaina and others (1912 P R 36). Viewed in that context the appellants who had rights in immovable property under an oral sale which was required to be registered but had not been registered, could assert their superior rights of pre-emption as co-sharer. Further it is contended that just as for the purposes of pre-empting a sale-it -has been held in Abdul Karim's case (referred above) that even sales which are inchoate, imperfect or incomplete are sales for the purposes of Pre-emption Act, it can be held that co-sharership for the purposes of asserting a superior right of pre-emption would be established from a sale while is lacking formal requirements of section 54 of Transfer of Property Act but is otherwise complete and admitted by the vendor. Finally, the learned counsel for the appellants submitted that the attestation of the mutation followed by consistent entries in the Jamabandi with nothing to detract there from was sufficient to raise a presumption in favour of the plaintiff pre-emptor establishing thereby their ownership in the Khata or estate out of which the sale had been made. Such presumption arising out of the entries of the revenue record could not be brushed aside on the basis of non- compliance with provisions of section 54 of the Transfer of Property Act.
4. The qualification on the strength of which the appellants sought to pre--empt the sale was one of co-sharership in the property sold. It is true that such co-sharership may not be identical with ownership and for bringing out this distinction reliance on Amar Singh's decision is not out of place.
5. In that case occupancy tenancy rights were sold and were the subject-matter of pre-emption claim by a person who shared the occupancy tenancy itself being the joint occupancy tenant. He was, in other words, a co-sharer in the very property which was sold and which he wanted to pre- empt. In the two cases now being examined the subject-matter of sale as well as pre-emption claim was the transfer of ownership rights. The appellants could succeed as co-sharers only if they shared the ownership rights as such, that is, a right identical to one which bad been sold and which was the subject-matter of pre-emption claim. In both the pre-emption suits, the pre-emptors claimed to have become owners in the Khata on the basis of oral sales which had been incorporated in the mutation registers and attested and subsequently either incorporated or noted on the permanent record of Jamabandi. The argument advanced by the learned counsel for the appellant that co-sharership may not in every case involve co-ownership is faultless but it has no application or relevance to cases in hand. In these cases what was sought to be transferred and what was sought to be pre-empted was ownership right and the claim of the pre--emptors was to a co-sharership in it. -The argument that because the sales sought to be pre-empted were by mutations, as much in violation of section 54 as those of the pre-emptors the vendees and pre- emptors were at par in the matter of default thereby at par in the nature and extent of their rights thereby becoming co-sharer and not necessarily co-owners is far-fetched, circuitous and misses the point in issue. In these cases the rights of the pre-emptors in the property sold on a date prior to and at the time of sale is under examina--petition and the competition With the vendee takes place only if and not without establishing first such an interest.
6. It is not in dispute that provisions of Transfer of Property Act including section 9 and section 54 stood extended to the area to which these transactions relate. Section '9 of the Transfer of Property Act provides "A transfer of property may be made without writing in every case in which a writing is not expressly required by law."
7. Section 54 of the Transfer of Property Act after defining sale provides - "Such transfer in the case of tangible immovable property of the value of one hundred rupees and up wards or in the case of a reversion or other. Intangible thing can be made only by a registered instrument."
8. The value of the property purchased by the plaintiff-pre-emptors on the basis of which they claimed superior right of pre-emption was admittedly of the value exceeding Rs.
100. This made it necessary that the purchases made by them should have been by a written instrument registered under the law excluding thereby any transaction of a different nature. As the transactions did not satisfy the requirements of section 54 of the Transfer Property Act they did not confer any right or interest on the plaintiffs---pre-emptors such as could be made the basis for claiming either ownership) or co-sharership.
9. It is true that even under a defective sale or as sale which does not satisfy the statutory requirement of section 54 of the Transfer of Property Act certain rights come to inhere in the purchaser who at the same time obtains possession of the property purchased. Such a sale, according to one view, is voidable at the instance of the vendor and his successors-in-interest or even at the option of vendee but unless the parties to the transaction repudiate it holds good against everyone else and against the world. Besides, under section 53-A of the Transfer of Property Act where possession has been delivered the sale can be made the basis for protecting the possession and for even keeping away the vendor from challenging or ousting the vendee.
10. The provisions of section 53-A of the Transfer of Property Act are an instance of a statutory exception, or recognition though a limited one to the exclusions of the rigor and effect of non- compliance with section 54 of the Transfer of Property Act. Rights under it are limited to the express words. In the first place there is no such writing signed by the transferor as is visualized by section 53-A. The attestation of mutations do not satisfy the requirements of law in this respect. Besides, the right under section 53-A is limited to disbarring the transferor or any person claiming under him "from the enforcing against the transferree and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract." It is in the context of such a limitation that section 53-A has never been interpreted as conferring a title on the vendee Ariff v. Jadunath Majumdar (AIR 1931 P C 79). Section 53-A creates no real right except one of defending the possession. It merely creates rights of estoppel between the proposed transferee and the transferor (S. N. Banerji and another v. Kuchwar Lime do Stone Co. Ltd. And another (AIR 1941 P C 128). It serves as a shield and not as a sword. It does not confer any active title or right of action on transferee except in defence of his rights under the deed. It follows, therefore, that such vendees who are in breach of section 54 of the Transfer of Property Act cannot on the strength of section 53-A of the Transfer of Property Act use such inchoate transactions as spring-board for claiming rights in altogether different property, on the strength of being owners or co-sharers.
11. The entries of the revenue record like the Jamabandi do not provide the foundation of title in property but are mere items of evidence to prove titled Wali Muhammad v. Muhammad Bux (AIR 1930 P C 91). They have a presumption of correctness which is rebuttable. The moment during scrutiny one reaches the transaction on the basis of which a change in the revenue record has been brought about then it is not the record but the transaction itself, not the secondary source but the primary one, which becomes the foundation of all claims and rights. It is clear that in the two cases before us the justifica--petition for the entries in the revenue record showing the plaintiffs as co---sharers or owners was an oral transaction of purchase given effect to by a mutation in contravention of section 54 of the Transfer of Property Act. Such a transaction must satisfy the legal requirements- and it is only when its conformity to law is established that title to property is created, legal rights and liabilities come into existence. If the very substratum of the entries of the revenue record is found to be defective, deficient, or wanting the entries of the revenue record cannot create title in property or give rise to rights and liabilities as is claimed by the appellants.
12. They are of no avail to the appellants.
13. The decision of this Court in Abdul Karim's case may be topical but it does not advance the case of the appellants, In that case the meaning and scope of term sale as defined in section 3(5) of Pre- emption Act was examined with a view to identify the sales which could be pre-empted. Its meaning and scope was held to be wider than of sales defined and dealt with under section 54 of the Transfer of Property Act. Hence even those sales which did not satisfy the requirements of section 54 of the Transfer of Property Act could be pre-empted. Without involving definition, scope of meaning of any such term the right to pre-empt a sale cannot be given an equally extended meaning to include within its orbit all inchoate, incomplete and imperfect sales as good sales for the purposes of acquiring an assertable or enforcible right of pre-emption.
14. None of the grounds urged by the appellants is tenable. The two appeals have no merit and are dismissed with costs.