' The facts giving rise to this Civil Revision are that the petitioner, Muhammad Ramzan, filed a suit against the respondents, Mat. Jantan and others, for possession of certain land through pre- emption. It was alleged by the petitioner that the land in dispute had been sold by one Ghulam Hussain in favour of the respondents. Admittedly, there is no mutation of sale or sale-deed embodying the sale of the land in dispute alleged to have been made by Ghulam Hussain. There is, however, a decree passed in a declaratory suit filed by the respondents against Ghulam Hussain claiming to be the owners in possession of the land in question. Exh. D. 1 is a copy of the plaint in the declaratory suit and Exh. D. 2 is a copy of the decree passed in that suit. According to the petitioner it was by means of the said decree that Ghulam Husain had sold the disputed land in favour of the respondents. Resisting the suit, it was pleased by the respondents that there was no sale of the said land in their favour and, therefore, the suit for pre-emption was not competent. A Civil Judge, who heard the suit, found that by virtue of the declaratory decree granted to the respondents the land in dispute had been sold in their favour and, therefore, the pre-emption suit brought by the petitioner was competent. It was also held by him that the petitioner had superior right of pre- emption. The suit was, therefore, decreed by the learned Civil Judge. His judgment and decree were challenged by the respondents by filing an appeal. An Additional District Judge, who dealt with the appeal, reversed the finding of the learned trial Court by holding that there was no sale of the disputed land which could be pre-empted by the petitioner. It was also pointed out by him that there was delay in the deposit of zar-e-panjam (1/5th of the sale price) by the petitioner and, therefore, his suit was liable to be dismissed under subsection (4) of section 22 of the Punjab Pre- emption Act, 1913, hereinafter referred to as the said Act. Resultantly, he accepted the appeal, set aside the judgment and decree passed by the learned Civil Judge and dismissed the suit. Feeling aggrieved by the decision of the learned Additional District Judge, the petitioner has come up.In revision to this Court.
2. Relying on the definition of the word "sale" as given in clause (5) of section 3 of the said Act it was contended by learned counsel for the petitioner that since the sale in dispute was not one of the sales enumerated in sub-clause (a) of the said clause, it was a sale which could be pre-empted by the petitioner.
3. Clause (5) reads as follows :"(5) 'sale' shall not include-
(a) a sale in execution of a decree for money or of an order of a Civil, Criminal or Revenue Court or of a Revenue Officer ;
(b) the creation of an occupancy tenancy by a landlord whether . For consideration or otherwise; "
4. A bare perusal of clause (5) would show that the definition of the' word "sale" given therein is not exhaustive. It simply makes a mention of certain transactions 'which have been excluded from the purview of the said Act. On the basis of the above definition, therefore, it cannot be legitimately urged that any transaction which is not one of the transactions listed in clause (5) is sale for the purpose .Of the said Act. It was the duty of the petitioner to establish that the declaratory decree obtained by the respondents was actually a sale but, according to the learned appellate Court, he had failed to do so. admittedly, the respondents had not sought the aforesaid declaratory decree on the plea that they had purchased the disputed land from Ghulam Husain. Instead, they claimed to be the real owners of the said land and had challenged a mutation indicating that they had sold that land in favour of Ghulam Husain. According to the respondents, it was .a fictitious mutation which had not affected their ownership of the land, in dispute. The learned Additional District Judge had given detailed reasons for holding that the declaratory decree did not amount to sale of the land in question. His finding in this behalf was not challenged by the petitioner on any plea other than the one mentioned earlier, namely, that since the transaction in dispute was not one of the sales mentioned in sub-clause (a) of clause (5) of section 3 of the said Act it was a sale which could constitute the subject-matter of a pre-emption suit. For reasons already recorded by me, there is no force in the said plea of the learned counsel. I am, therefore, unable to disturb the finding of the learned appellate Court that there was no sale of land in favour of the respondents which could be pre-empted by the petitioner.
4. As regards the late deposit of zar-e-panjam by the petitioner, learned counsel for the petitioner invited my attention to the judgment of the learned trial Court by which he had condoned one days's delay in the deposit of zar-e-panjam. It is evident from the judgment of the learned Additional District Judge that the petitioner had made application seeking condonation of delay in the deposit of zar-e-panjam. In that application he had spelt out reasons for which he could not make the deposit in time. B Keeping in view those reasons and the fact that the delay on the part of the petitioner was of one day only, I am not inclined to interfere with the order of the learned Civil Judge by which he had condoned that delay especially when his order stands fortified by the view expressed in Abdul Aziz v. Aziz-ul-Haq. I, therefore, do not agree with the learned appellate Court that the petitioner could be non-suited for the late deposit of zar-e-panjam.
5. Since I have upheld the finding of the learned Additional District Judge to the effect that there was no sale of the disputed land in favour of the respondents and, therefore, the petitioner's suit for pre-emption was not competent, I maintain his order by which he had set aside the judgment and decree of the learned trial Court and had dismissed the suit. This Civil Revision, accordingly, fails. It is dismissed in limine. 1972 SC M R 2961 1