' This Regular Second Appeal is directed against the order of District Judge, Bahawalpur, dated 26.11.1979 whereby he upset the judgment and decree of the trial Court dated 28-10-1978 decreeing the pre-emption suit of the respondents.
2. Briefly the facts leading to this appeal are that Mst.Mehran owned the suit plot and Gul Muhammad, respondent No.2, occupied it as tenant under her for many years and had installed a Chakki on it. Gul Muhammad, however, purchased that plot for ostensible price of Rs.21,542 from Mst.Mehran through registered sale-deed dated 14-9-1974. Khalil Ahmad Khan, appellant, in order to pre-empt the sale instituted a suit against Gul Muhammad, respondent, on 19.8.1975 claiming superior right of pre-emption on the basis that he owned a house contiguous to the suit plot.
During pendency of the suit, Gul Muhammad, respondent No.2, sold the suit plot to Mst. Razia, respondent No.1, on 13-9-1975 vide registered deed Exh.D.2 who also owned a house contiguous to the suit plot and obviously had right of pre-emption equal to that of the plaintiff-appellant Gul Muhammad, respondent No.2, then executed a rent note in favour of Mst. Razia, respondent No.1, as her tenant. Mst. Razia, respondent No.1, was impleaded as a party and the appellant alleged that the sale in favour of Mst.Razia was not genuine one rather it was resorted to for defeating the right of pre-emption of the appellant. The suit was contested by the respondents. Mst. Razia, respondent No.1 averred in her written statement that sale-deed in her favour was genuine and that the appellant did not have superior right of pre-emption against her as she also owned a house adjoining the suit plot. Gul Muhammad, respondent No.2, in his written statement also prayed that the suit of the appellant be dismissed. On pleadings of the parties four issues besides the relief were framed and tried. The important among them are issues Nos.1 and 2 which read as under:-
(1) Whether the plaintiff has got superior right of pre-emption as against the vendees-defendants Nos.1 and 3?
(2) Whether the alienation of the suit house in favour of the defendant No.3 is collusive and ineffective over the rights of the plaintiffs.
' After recording evidence of the parties and having heard their view point, learned trial Court decided issue No.2 in favour of the appellant saying that the sale of the plot in favour of Mst.Razia by Gul Muhammad was fictitious, hence ineffective on the rights of the appellant. He further held that the appellant had superior right of pre-emption against Gul Muhammad, respondent, as the appellant's house adjoins the plot in dispute and consequently decreed the suit in favour of the appellant. Mst. Razia, respondent No.1, called in question the decree by filing an appeal in the Court of District Judge, Bahawalpur. The finding of the trial Court on issue No.2 was challenged before him. Learned District Judge having appraised the evidence afresh came to the conclusion that all the ingredients of sale of the disputed plot in favour of Mst. Razia, respondent No.1, by Gul Muhammad, respondent No.2, inasmuch as settlement of bargain, delivery of possession, admission of title and payment of consideration have been proved by registered sale-deed Exh.D.2 and that Gul Muhammad, respondent No.2, executed rent note Exh.D.3 in favour of Mst. Razia accepting her the owner of the disputed property. He further held that the mere threat of Gul Muhammad, respondent, to the appellant that if he did not withdraw the pre-emption suit he would sell out the plot to somebody else cannot be necessarily taken to mean that the sale effected by Gul Muhammad in favour of Mst. Razia was fictitious. He remarked that Gul Muhammad in recognition of superior right of pre-emption of Mst. Razia sold the plot to her and even if it is admitted that he defeated the right of pre-emption of the appellant, it was done in a legal manner and no exception to this could . be taken. Consequently, learned first appellate Court reversed the finding on issue No.1 and dismissed the suit of the appellant. It is against this order that the instant second appeal has been filed.
3. I have heard learned counsel for the appellant as well as for the respondents and also perused the record.
4. Learned counsel appearing on behalf of the appellant submitted that no doubt a vendee during the pendency of the pre-emption suit can validly sell the suit property to a person possessing an equal or superior right of pre-emption to that of the plaintiff provided the sale is genuine and is within the period of limitation but contended that the sale in favour of Mst. Razia, respondent, in this case was beyond the period of limitation and could not, therefore, be recognised in law. In the alternative, he submitted that if it is considered to be a sale within limitation then the suit of the appellant must succeed on the ground that the sale in favour of Mst. Razia was fictitious as held by the trial Court. In order to show that the sale was beyond the period of limitation,learned counsel submitted that possession of the suit property should be taken to have been delivered to Gul Muhammad on 20-8-1974, the day on which Mst. Mehran's (vendee's) statement was recorded by the commission sent by the Registrar and in that statement she admitted to have delivered possession to Gul Muhammad, while the sale in favour of Mst. Razia took place on 13-9-1975. He submitted that the period of limitation is to start from the date of delivery of possession according to section 30 of the Pre-emption Act, therefore, period of one year had elapsed on 20-8-1975 and subsequent sale which took place on 13-9-1975 falls out of the period of limitation. As for his contention that sale is fictitious, he submitted that had this transaction been genuine then Mst.
Razia, respondent No.1 (subsequent vendee) must have appeared as witness in Court. Her failure to enter the witness-box raises a presumption against her that she was not a genuine purchaser. He further stated that admittedly Gul Muhammad had borne the expenses of the sale which too indicated that the sale was not genuine. As against this, learned counsel for the respondents submitted that it is well-settled that where sale is made through registered deed the period of limitation starts from the date of endorsement of certificate of registration. In this case sale-deed in favour of Gul Muhammad was registered on 14-9-1974 and the subsequent sale in favour of Mst.
Razia, respondent, was registered on 13-9-1975 which is obviously within period of one year. In this respect reliance has been placed on Ghulam Mustafa v. Dilawar & others 1984 CLC 401. As for genuineness of sale made in favour of Mst.Razia, respondent, he submitted that the endorsement on the sale-deed Exh.D.2 clearly mentions that consideration money had been paid to Gul Mohammad, respondent, in the presence of Registrar which must be preferred to oral evidence produced in rebuttal and the finding of learned District Judge that the sale was genuine one is, therefore, not open to exception.
5. I have carefully considered the contentions of learned counsel for the parties in the light of the record and the authorities cited at the bar.
6. It is well-recognised that if sale is effected through a registered deed, the limitation shall start from the date when certificate of registration of the document is issued. Computing the time of limitation from date of registration of sale in favour of Gul Muhammad (14-9-1974) the subsequent sale effected by him in favour of Mst. Razia (13-9-1975) falls clearly within limitation, therefore, the contention that the sale was effected after the expiry of limitation is unfounded and is repelled. As for the question whether the transaction of sale in favour of Mst. Razia by Gul Muhammad was fictitious, I would say that the conclusions of learned first appellate Court that it was genuine is amply supported by the evidence on record. The endorsement of Registrar on sale-deed Exh.D.2 bears ample testimony that sale price was paid in the presence of the Registrar. The oral evidence regarding the return of money by Gul Muhammad to Mst. Razia cannot be preferred to the endorsement made by the Registrar, particularly when Gul Muhammad has also executed a rent deed in favour of Mst. Razia which further shows that he recognised her as his landlady and was estopped from claiming ownership of the disputed plot. In the circumstances, I fully agree with the finding of learned first appellate Court that it was not an ingenuine sale. Consequently, I find no valid reason to interfere with the impugned judgment and decree passed by learned District Judge. No other point has been raised.
7. The result is that this appeal being without merit is hereby dismissed. However, the parties are left to bear their own costs.
M.B.A. .