' Mohibullah Khan, respondent herein, is alleged to have purchased, although oh different dates, one parcel of land, and Mst. Fakbrun-Nina, petitioner herein, pre-empted both these transactions through two different suits. As the land in both the suits pertains to one and the same parcel, the written statement of the vendee, Mohibullah Khan respondent herein, raises the same points in both the suits and as common points are involved in both the revision petitions, parties being the same, therefore, both the Revision Petitions Nos. 412/78 and 411/78, would be disposed off by this single judgment which is being written in Civil Revision No, 412 of 1978 and it will dispose of both the aforesaid revision petitions.
2. Mst. Fakhrun-Nisa instituted Suit No, 299/1 on 18-4-1974 against Mohibullah Khan in the Court of Senior Civil Judge, D. I. Khan, for possession by pre-emption of land measuring 7 Kanals 16 Marlas out of a total land measuring 14 Kanals 6 Marlas situate in Khasra No, 708 of village Ratta Kulachi on payment of Rs, 1,560.22 or the price fixed by the Court. It was mentioned in that plaint that Qureshi Mushtaq Ali Sadiq was owner of the suit land who sold it to Mohibullah Khan for Rs, 1,560.22 but in order to defeat her pre-emptive right a fictitious amount of Rs, 11,700 was mentioned as sale price in the sale Mutation No, 401 attested on 20-4-1973. The pre-emptor claimed superior pre- emptive right on the basis of contiguity with, and participation in the immunities and appendages of, the suit land. Mohibullah Khan, vendee-defendant, submitted his written statement on 13-5-1974 wherein he stated that the pre-emptor did not possess any superior pre-emptive right or had waived it and had no cause of action, that the suit was time-barred, insufficiently stamped and was bad for partial pre-emption and that he had actually paid Rs, 11,700 as sale price of the suit area. The learned Senior Civil Judge framed as many as 9. Issues based on the pleadings of the parties. The issues pertained to plaintiff's superior right of pre-emption (Issue No, 1), payment of Rs, 11,700 in good faith (issue No, 2), market value (Issue No, 3),' plaintiff having a cause of action (Issue No, 4), suit being in time (Issue No, 5), waiver by the pre-emptor (issue No, 6), suit being bad for partial pre-emption (Issue No, 7), for not having being properly valued (Issue No, 8) and relief (Issue No, 9). After recording the evidence, as produced by the parties, the learned Senior Civil Judge decided that the plaintiff did possess a superior pre-emptive right that Rs, 11,700 were not proved to have actually been paid, that the market value of the suit land was Rs, 2,808 that the plaintiff did not have a cause of action, that the suit was time-barred, that the pre-emptor had not waived off her pre-emptive rights, that the suit was not bad for partial pre-emption and was also properly valued. The learned trial Judge, holding that the plaintiff had no cause of action and the suit was time-barred (Issues Nos. 4 and 5), dismissed her suit vide judgment dated 30-6-1977. Mst.
Fakhrun-Nisa preferred an appeal before the District Judge, D.
1. Khan, against the judgment of the learned trial Judge, who upheld the findings of the learned trial Court on Issues Nos. 4 and 5 and agreeing with him, dismissed the appeal vide his judgment dated 8-5-1978. Hence the Revision Petition No, 412/78 by the plaintiff.
3. Mg. Fakhrun-Nisa instituted another Suit No, 193/l, on 3-7-1975 in the Court of Senior Civil Judge, D. I. Khan, against Moinbullah Khan for possession by pre-emption of land measuring 6 Kanals 10 Marlas out of total area measuring 14 Kanals 6 Marlas bearing Khasra No, 708 situate in village Ratta Kulachi on payment of Rs, 1,300 or the price fixed by the Court. The plaintiff based her claim on superior pre-emptive right in this suit on the same grounds as in tile aforesaid suit, namely, contiguity with, and participation in immunities and appendages of, the suit land. She also mentioned in her plaint that this area also belonged to Qureshi Mushtaq Ali Sadiq. However, the said owner had earlier sold an area of 7 Kanals 16 Marlas of the said Khasra number to Mohibullah Khan, which transaction was pre-empted by her and in that suit Mohibullah Khan, appearing as a witness on 24-4-1975, had disclosed that he had also purchased the remaining area of the said Khasra No, 708, although no sale mutation had so far been entered or attested. On this statement of Mohibullah Khan, Mst. Fakhrun-. Nisa came to know of the second sale transaction and so she instituted this suit for pre-emption of this area as well. In this suit, the defendant Mohibullah Khan raised the same points in his written statement submitted on 21-7-1975 and added that he had actually purchased the suit land for Rs, 9;750 and denied the allegation of the plaintiff in her plaint that he had purchased the suit land for Rs, 1,303. This suit was also instituted in the Court of Senior Civil Judge, D. I. Khan, and from the pleadings of the parties, issues were framed regarding the suit being time-barred, waiver by plaintiff, the suit being bad for partial pre-emption, incompetency and. For being not properly valued, the plaintiff possessing the superior pre-emptive rights, actual payment of Rs, 9,750 as sale price and market value. After recording the evidence as produced by the parties, the learned Senior Civil Judge decided that the suit was time-barred (Issue No, 1), that the plaintiff had not waived off her right to preempt (Issue No, 2), that the suit was not bad for partial pre-emption (Issue No, 3), was competently framed (Issue No, 4), was properly valued (Issue No, 5), that the plaintiff possessed a superior pre-emptive right issue No, 6) that the vendee had failed to prove the payment of Rs, 9,750 (Issue No, 7) and that the market value of the suit land was Rs, 2,304 (Issue No, 8). However, as a result of his findings on Issue No, 1, be dismissed the suit of ,Mst. FakhrunNisa vide his judgment, dated 30-6-1977. The said plaintiff preferred an appeal before the District Judge, D. I. Khan, against the said judgment of the learned Senior Civil Judge. The learned District Judge agreed with the findings of the learned trial Court on Issue No, 1 about limitation and holding the plaintiff's suit as time-barred, dismissed the appeal "by judgment, dated 8-5-1978. The plaintiff then filed Revision Petition No, 411 of 1978 in this Court.
4. It shall thus be seen that both the suits of the plaintiff, bearing Nos. 299/1 of 1974 and 193/I of 1975, were dismissed as being time-barrede As this is the only point involved in both these revision petitions, the parties being the same, the land being one parcel, both these revision petitions are, therefore, taken together.
5. In the written statement, filed in both the suits he Mohibullah Khan, . Respondent herein, had neither disclosed as on what date had purchased both the suit areas nor on what date he had obtained separate possession of each area. However, he produced copies of the suits brought by him against the vendor Qureshi Mushtaq Ali Sadiq alongwith both the written statements filed by him in the suits filed by Mst. Fakhrun Nisa. In the Suit No, 299/1 of Mst. Fakhrun Nisa, Mohibullah Khan produced copy- Each. D. W. /1, of a plaint bearing No, 67/1 instituted by him against Qureshi Mushtaq Ali Sadiq on 9-1-1973, for a declaration that he was owner in possession of land measuring 7 Kanals 16 Marlas out of total land measuring 14 'Canals o Marlas bearing Khasra No, 708 by purchase from Qureshi Muslataq All Sadiq on payment of Rs, 11,700. The defendant in-that suit confessed judgment on the same day and a consent decree was passed on 9-1-1973 in favour of Mohibullah Khan. However, Mutation No, 401 on the basis of this cicero was attested on 29-4-1973, Appearing as a witaost Mohibullah Khan stated that he had obtained possession of the suit land on 10-1-1973 by sloughing it through a tractor through his driver Muhammad Ramzan. However, this Muhammad Ramzan was not produced as a witness and Mohibuliah Khan is the only witness in defence. On the contrary, P. W. 4, Rabnawaz Patwari stated that Mohibullah Khan had been recorded in the Khasra Girdawari, copy Exh. P. W. 4/2 in possession of the suit land in Zaid Rabi 1973.
This witness admitted that Zaid Rabi commences from the month of June every year. In cross- examination, this witness further stated that Mohibullah Khan was paying land revenue since Kharif 1973 and that he was in possession of the entire area of. Khasra No, 708. It was further contended by the vendee Mohibullah Khan that after the purchase by him, a "Tatima" of Khasra No, 708 was prepared and the area of 7 Kanals 16 Marlas purchased by him was given a separate No, 1/708 but this contention has been contradicted by P. W. 3, Ghulam Abbas Patwari, who had seen the property at the spot and the partition as mentioned in Mutation No, 401 did not appear at the spot.
P. W. 2 Fazal Ahmed, Patwari Irrigation, has stated that according to his record, Khasra No, 708 is not mentioned in the Kharif 1976 because no crop was shown in that Khasra number at the time and it was shown as `Banjar' and that there was no Khasra No, 1/708 in his record. He did not see any sign of sub-division of Khasra No, 708 at the spot. It shall thus be seen that there are more than one version on the record of the case regarding the allegation of possession of Mohibullah Khan over the area involved in Suit No, 299/1. According to his own statement, he possessed it on 10-1-1973, whereas the sale mutation was attested on 20-4-1973, and the revenue record shows his possession in June, 1973, and payment of revenue by him for the first time for Kharif 1973 crop. There is also no evidence, supported by any revenue record, that this area was separated from the entire area after the sale in favour of Mohibullah Khan. The different versions about the possession of Mohibullah Khan cast a very strong shadow of doubt on the actual date of possession by him. Both the learned lower Courts have committed a gross error in .Relying upon the solitary statement of Mohibullah Khan, when it was neither supported by any other witness not by the revenue record. As such, Mohibullah Khan had very miserably failed to produce any convincing evidence about the date of possession of the area in dispute in Suit No, 299/1. On the contrary, the revenue record shows him in possession after the date of attestation of Mutation No, 401. Both the learned lower Courts committed error in accepting not only the uncorroborated statement of Mohibullah Khan but in discarding the most authentic evidence of the revenue record which clearly contradicted his oral assertion. It is clear case of misreading of evidence by both the learned lower Courts. As the vendee had failed to prove that he had obtained possession of the area involved in this suit more than one year before the institution of this suit by Mst. Fakhrun Nisa the provisions of section 31 on the N.-W. F. P. Pre-emption Act, 1950, would come into play under which the pre-emptor is required to file suit for pre-emption within one year of the attestation of mutation or obtaining of possession under the sale whichever is earlier. The vendee allegedly obtained possession, in accordance with the revenue record, much after the date of the sale mutation. The pre-emption suit having been filed within one year of the date of attestation of the sale mutation, was perfectly within time. Both the learned lower Courts neither appreciated the correct legal position in this respect nor applied their mind to the entire evidence brought on the record.
6. Now I will take up the second suit of Ms:. Fakhrun Nisa. This Suit No, 193/1 was filed, on 3-7-1975 after Mobibullab Khan had appeared as a witness in the aforementioned first suit and had deposed that he had purchased the entire area of Khasra No, 708. However, in his written statement, submitted on 21-7-1975, he neither disclosed as how and in what manner he bad purchased the suit land nor the ground on which he claimed that the suit was time-barred.
However, the record of this suit shows that Mobibullah Khan had instituted a Suit No, 81/1 against Qureshi Mushtaq All Sadiq on 10-1-1973 for a declaration that he had become owner of land measuring 6 Kanals 10 Marlas out of a total area of 14 Kanals 6 Marlas bearing Khasra No, 708 on payment of Rs, 9,750 as its sale price. In this case as well, Qureshi Musbtaq Ali Sadiq confessed judgment through his written statement on the same day i,e, 10-1-1973, but a consent decree in favour of Mohibullah Khan was passed by the learned Senior Civil Judge, D. I. Khan on 22-1-1973.
Appearing as a defence witness in this case on 22-2-1977, Mohibullah Khan admitted that no sale mutation had so far been attested in his favour. He, however, alleged, as in the aforementioned suit, that he had obtained possession of the entire area of Khasra No, 708 on 10-1-1973. On the contrary, the revenue record practiced in this case, also shows that Mohibullah Khan entered into possession in June, 1973 and paid the land revenue of this Khasra number for the first time in Kharif, 1973. P. W. 1, Ghulam Akbar Patwari, who produced copies of the revenue record, admitted in cross- examination that he was posted in that Halqa on 1-7-1975 and Ghulam Abbas Patwari was his predecessor. It would, therefore, transpire that the entries in the Khasra Girdawri for 1973 were made by Ghulam Abbas Patwari who has not been produced as a witness. It is, therefore, doubtful whether Mohibullah Khan actually entered into possession of the area of this transaction in 1973.
Even if it is admitted that he entered into possession of this area in June, 1973 as well, still Mohibullah Khan has failed to prove as in what capacity he entered into possession of this area, according to his own admission, no sale mutation regarding this area was attested till February, 1977. He did not produce the Patwari who had actually made the entries of possession in the revenue record to prove his contention that he entered into possession on this area in pursuance of a sale in his favour. The mere fact that a person is recorded in Khasra Girdawri being in possession of a portion of land as vendee, without any sale mutation, or registered deed of sale, would, not by any stretch of imagination, prove that he was vendee of the said portion of land. The N.-W. F. P. Pre-emption Act in section 31 and the Limitation Act in Article 10 of the Schedule, envisage only two types of transactions on sale, either by mutation or by registered sale-deed. Sale by a consent decree in Court has not been considered as a sale for the purposes of the Preemption Act.
Had this been so, the vendors and vendees could very easel hoodwink a prospective pre-emptor by a suit stealthily brought for a declaration of ownership in possession and obtaining a consent decree by confession of judgment on the same date by the vendee. Generally where consent decrees are obtained by filing a suit and confession of judgment on one and the same date, such transactions are very secret and collusive. Decreed obtained in C such suits are generally judgments in persons and cannot be considered as judgments in rem. Neither any evidence is recorded in such cases nor is there any protracted litigation so that strangers may come to know that parties are litigating. If such type of consent decrees, as were obtained in both the cases in hand, are held to be sale transactions, for the purposes of pre-emption suits, then the vendee can very easily mention in the suit that he had purchased the land and obtained its possession many years ago in order to defeat the right of a prospective pre-emptor on the basis of limitation. Such consent decrees o sale are alien to the Pre-emption Act. Till February, 1977, no sale mutation was attested regarding the area in dispute in this suit. It cannot, therefore, be said that Mohibullah Khan was vendee of this area as well and he obtained possession of this area after having purchased it.
The factum of purchase by him came to light only when he, appearing as a witness on 26-5.1975 in the aforementioned Suit No, 299/1, stated that he had also purchased the remaining area of Khasra No, 708. It shall thus be seen that Mst. Fakhrun Nisa came to know of this sale on 26-6-1975 and she instituted this suit on 3-7-1975, within 10 days, of the date of knowledge. It is noteworthy that on the date, on which this suit was instituted, neither any sale mutation had been entered or attested nor any sale-deed had been executed or registered. As already pointed out, the evidence of the vendee Mohibullah Khan in regard to the date of possession was not trust worthy. Had he produced the Patwari, who had made entries of his possession in the Kbasra Girdawari, it would have been a different matter. Needless to say that no presumption of truth attaches to entries in the Khasra Girdawri although presumption of truth attaches to the record of rights. Till February, 1977, Mohibullah Khan had not been shown in possession as vendee of the area involved in the suit.
However, the suit having been filed within one year of his oral deposition about purchasing the said area, was also well within time. In this case, neither Article 10 of the Schedule to the Limitation Act nor section 31 of the N.-W. F. P. Pre-emption Act are applicable and the case would be covered by Article 120 of the Schedule to the Limitation Act whereby Mst. FakhrunNisa could file a suit for pre- emption within six years as held in Lugman v. Allah Diwaya and others (1). In this case as well, both the learned lower Courts have failed to appreciate the intrinsic value of the evidence produced with regard to the circumstance of possession. In this case, till February, 1977 there was no proof of sale, hence the possession of Mohibullah Khan in 1973 of this area could not be considered as possession under the sale.
7. The learned counsel for the respondent urged that both the learned lower Courts have arrived at a concurrent finding with regard to the alleged date of possession and such findings could not be disturbed in revision. He drew my attention to Bakhshu v. Muhammad Ramzan (2), but the facts of this case are quite different from the facts of both the cases in hand. In the reported case, there was sufficient evidence regarding applicant being in possession of property on a particular date and the findings of the learned lower Courts were supported by evidence on record, whereas in the present case, the vendee had failed to produce any cogent evidence E about a particular date on which he entered into possession under the sale. AI further reference in this connection may also be made to Muhammad Sarwar v. Feroz Khan and another (3), wherein it was held that "possession" in the legal sense is -quite distinct from 'physical possession' as contained in Article 10 of the Limitation Act or section 30 of the Punjab Pre-emption Act (section 31 of the N.-W. F. P. Pre- emption Act) which bad the clear object of giving a notice to all persons concerned, that the former owner had parted with the property in favour of some other person. The mere admission by the vendor at the time of the report to the Patwari or in a statement to the Revenue Officer, "that the possession had been surrendered earlier, might be of some use and consequence to the parties to the transaction, but could not be binding upon a stranger".
8. The learned counsel for the respondent further brought to my notice that the provisions-of section 115, C. P. C. We're not applicable to these cases {{FOOT NOTE}}
(1) PLD 1967 Pesh. 166 (2) 1980 CLC 210
(3) PLD 1951 Lab. 169 {{FOOT NOTE}} as there was no illegality or irregularity in the exercise of jurisdiction by the subordinate Courts and the mere fact that findings were wrong on a point of fact would not bring the cases within the purview of this section and in that respect, he relied upon Muhammad Bux v. Muhammad All (1).
However, this case is also not applicable to the circumstances of the present cases, because both the learned lower Courts decided a question of fact when the same was non-existent or bad become very doubtful. It has, by now, become a settled principle of law that if the lower Courts have misread the evidence or have arrived at a wrong conclusion about a question of facts, the High Court, in its revisionai powers, under section 115, C. P. C. Would certainly step in so as to correct the wrong findings of fact by the lower Courts. Moreover, the question of limitation is not a mere question of fact, it is mixed question of law and fact and would be open to interference by the High Court.
9. It is also noteworthy that the vendee, Mobibullah Khan, had raised the objection of limitation in a very casual manner in his written statements. He had not mentioned therein any specific date on which he came into possession of the land. As such, the plaintiff/pre-emptor could not effectively counteract. If in a pre-emption suit, it is the duty of the pre-emptor to prove his pre-emptive right as subsisting on the day the transaction of sale took place, on the day he instituted the suit and on the day a decree is passed in his favour, similarly it is the duty of the vendee to prove by strong and positive evidence the date of possession if he alleged that he had obtained it prior to the attestation of mutation or registration of sale-deed. As such, heavy burden lay upon the shoulders of Mohibullah Khan to prove a firm date of possession as this circumstance was alleged by him.
Moreover, the burden to prove that the suits were within time was wrongly placed upon the plaintiff by the learned lower Courts. The plea of limitation was raised by the vendee and prima facie, the suits appeared to be within time. ,And on the principle "if no evidence is produced who will suffer" the onus to 'prove this issue should have been placed upon the vendee because he was to suffer if no evidence was produced regarding limitation. In this connection section 102 of the Evidence Act and Order XVIII of the C. P C. Are very clear.
10. The net result of the above discussion is that I would set aside the findings of both the learned lower Courts on Issues Nos. 4 and 5 in Suit No, 299/1, and Issue No, I in Suit No, 193/1. The superior pre-emptive right of the plaintiff-petitioner in both these suits has been upheld by the learned lower Courts and has also been conceded by the vendee Mohibullah Khan. So far as the price of both these pieces of land is concerned, both the learned lower Courts have disbelieved the evidence of the vendee in this respect and have held that the market value of the land measuring 7 Kanals 16 Marlas in Suit No, 299/1 in Rs, 2,808 andAof the land measuring 6 Kanals 10 Marlas in the Suit No, 193/1 is Rs, 2,304. The vendee, having failed to challenge the findings of both the learned lower Courts on the issue of payment of actual price and market value by way of cross-objections, the vendee, Mohibullah Khan would be entitled to receive only, these amounts as sale price of both the aforesaid transactions. From the record of Suit No, 299/1, I find that Mst. Fakhrun Nis,sa had deposited Rs, 3,900 as preemption money on 25-4-1974, and in the Suit No, 193/1, she had deposited Rs, 3,250/1 as pre-emption money on 4-7-1975. {{FOOT NOTE}}
(1) 1980 Law Notes: C 770 {{FOOT NOTE}}
11. I would, therefore, accept both these Revision Petitions, Nos. 412/78 and 411/78, and would grant a decree to the plaintiff of both these suits, I Mst. Fakhrun-Nisa, for possession by pre-emption of land measuring .7 Kanals 16 Marlas and land measuring 6 Kanals 10 Marlas, all bearing Khasra No, 708, situate in village Ratta Kulachi, Tehsil and District D. I. Khan, on payment of the sale price of Rs, 2,808 and Rs, 2,304, respectively. In view of the circumstances of the cases, I would leave the parties to bear their own costs.