' MUHAMMAD AFZAL LONE, J.-- The appellants sued the respondents for possession of the land in dispute, through exercise of right of pre-emption. It was purchased by them from Sardar Khaliq- uz-Zaman and others for a consideration of Rs.2,00,000 by means of sale-deed, dated 15-9-1973, which was registered on 19-9-1973. The respondents contested the suit inter alia, on the ground that they being displaced persons of Mangla Dam no right of pre-emption existed in respect of the sale in their favour. They further urged that the suit was undervalued for the purposes of court-fee and jurisdiction. The plea that the suit was barred by time, was, also raised. The learned trial Court framed 10 issues which arose out of the pleadings of the parties. Out of these issues Nos. 5 to 9 and 9-A were not pressed. The remaining issues are reproduced below:-
(1) Whether the defendants vendees are displaced persons of Mangla Dam and as such a suit for pre-emption is not competent against them? O.P.D.
(2) Whether the suit is for partial pre-emption? O.Y.D.
(3) Whether the suit has been contumaciously undervalued for th purposes of court-fee and jurisdiction? If so, what should b: the correct valuation and with what effect? O.P.D.
(4) Whether the plaintiff has got a superior right of pre-emptio qua the vendees? O.P.P.
(9-B) Whether the verification of the plaint has not been made i accordance with Order VI, rule 15, C.P.C.? If so, its effect. O.P.D.
(9-C) Whether the suit is barred by time? O.P.D.
2. After evaluation of the evidence produced by the parties, the learned trial Court answered issue No. 1 in the affirmative. The decision on issue No. 2 was against the respondents. In view of its finding on issue No. 1, the learned Court below maintained that issue No. 4 did not arise. Under issue No. 9-B, the plaint was found to have been verified correctly. Answer to issue No. 9-C was in the affirmative. Consequently, the suit was dismissed. The validity of the trial Court's judgment and decree, dated 18-10-1979, is, under challenge in this appeal by the plaintiffs.
3. We have heard the learned counsel for the parties at some length and examined the record with their assistance. Only the findings on issues Nos. 1, 3 and 9-C, have been assailed.
' To begin with issue No. 1, it is to be seen that there is a Notification No. 8776-76/110-IR-III, dated 20- 1-1977 issued by the Board of Revenue Punjab under section 8(2) of the Punjab Pre-emption Act, to the effect that:- "............ in the whole of the Punjab Province no right o pre-emption shall exist for a period of 2 years with respect to the sale of agricultural land not exceeding 121 Acres of canal irrigated area or 50 Acres of unirrigated area and other immovable property not exceeding the market value of Rs.10,000 (Ten thousand only), in favour of a person displaced on account of construction of Mangla Dam and certified to be so displaced by the Commissioner, Mangla Dam Affairs, Azad Government of the State of Jammu and Kashmir."This notification has been issued in continuation of Notification No. 2131-76/1003-IR-III, dated 27-6-1976. Alongwith the notification under section 8(2), the respondents relied upon certificate, dated 6-4-1977 Exh. D.1 issued by the Commissioner, Mangla Dam Affairs, in the name of Sheero son of Allah Ditta. As per this certificate he was treated as a person "effected by the construction of Mangla Dam Project". It also makes mention of the notification, which preceded the notification, dated 7-6-1976. There is no controversy between the parties that the date of sale, sought to be pre-empted, is, covered by these notifications. The certificate was proved by the statement of Abdul Aziz Qureshi, Record-keeper of the Office of Commissioner, Mangla Dam and Land Acquisition Collector, Mirpur.
4. It is to be noticed that the name of father of respondents Nos. 1 and 2 is Sher Baz and the remaining respondents are his maternal-grandsons. The respondents' case is, that Sheero is alias of Sher Baz, to whom certificate Exh.D.1 was issued. They further asserted that being the successors- in-interest of Sheero they were entitled to all the benefits under the certificate. In this respect, they attempted to enlist support from the High Court's order, dated 19-9-1974 Exh.D.4 passed in Regular Second Appeal No. 148 of 1974, dismissing the same in limine. This is a short order under which a learned Single Judge declined to interfere with the extension of exemption by the Court below, to an heir of the holder of certificate, displaced due to Mangle Dam. The learned trial Court accepted the respondents' claim; held Sheero as their predecessor-in-interest and maintained that in view of the certificate Exh.D.1 sale in their favour, was, exempt from right of pre-emption.
5. The validity of these findings has been called in question by the learned counsel for the appellants. He argued that according to Exh.D.I, Sheero himself purchased some land in Gujranwala, and, therefore, the respondents could not make any use of this document. It was also submitted that the land purchased by them exceeded much beyond the limits prescribed under the notification. The learned counsel then referred to Mangta Khan and others v. Hameeda Begum and others PLD 1981 SC 51, to contend that the plea of exemption was not available to the respondents in the capacity of successors of Sheero, during the latter's lifetime.
6. There is merit in these arguments. In the certificate, it is clearly mentioned that Sheero purchased some land in Gujranwala District. It is, therefore, legitimate to presume that the certificate was issued to give exemption to the sale referred to therein. Thus, no exemption can be availed of by the respondents under the certificate. Furthermore, the notification under section 8(2) ibid, grants exemption to the persons displaced on account of construction of Mangla Dam but in the Certificate Sheero has been shown as merely 'affected' and not 'displaced' due to Mangla Dam Project. Every displaced person may be an affected person but an affected person may or may not be a displaced person. The respondents have not produced any cogent evidence to substantiate their status as displaced persons. Further the certificate being not in consonance with the notification, does not fulfil condition precedent for allowing the exemption.
7. Muhammad Zeman, respondent in his statement recorded on 7-3-1979 has admitted that his mother Mst. Fazal Begum and grandfather Sheero are alive. We are not in any manner of doubt, that during the lifetime of Sheero no right vested in him under the certificate, could be alienated to the respondents, particularly, when Mst. Fazal Begum, a daughter of Sheero, through whom respondents Nos. 3 to 7 claim their right, is, still alive. A reference in this connection, may be made to the precedent relied upon by the appellants' learned counsel, which lays down that the claim for exemption made by a son, of a certificate-holder may be entertained only if the father dies. When faced with this situation, the learned counsel for the respondents conceded that respondents Nos.
3 to 7 could not take advantage of the certificate. He, however, submitted that Sheero died sometime after the statement of Muhammad Zaman and, therefor3, his sons respondents Nos. 1 and 2, could be treated as right-holders. It is not possible to agree with the learned counsel. No such plea was pressed by them before the learned trial Court. Even otherwise, there is no material on the record to hold that Sheero has died. We, are, therefore, of the view that none of the vendees can be treated as a displaced person of Mangle Dam and given benefit of notification, granting exemption. The findings of the trial Court on issue No.1, are, thus reversed.
8. We now, proceed to issue No.
3. The suit land in all measures 657 Kanals 9 Marlas and was sold alongwith tube-well, houses and other superstructure, built thereon and the rights attached thereto. The learned trial Court has found that the major portion of the land was Banjar Qadeem and Thur. A schedule of net profit Exh.P.5 relating to Kharif, 1973, and Rabi 1974 was filed with the plaint, which indicated that in Kharif, 1973, an area measuring 196 KanaIs 10 Marlas was cultivated and the land cultivated in Rabi, 1974 was 54 Kanals 9 Marlas only. The schedule shows that the land yield net-profit of Rs.8,326 only; out of which the landlord's share was calculated at 1/3rd and fixed at Rs.2,775.33. The suit was valued both for the purposes of court-fee and jurisdiction at Rs.41,629.95 which was stated to be 15 times of the said net profit. Before proceeding further, it may be observed that in respect of land assessed to land revenue, the suit for purposes of jurisdiction had to be valued in accordance with the rules framed by the Provincial Government under section 3 of the Suit Valuation Act, which were published under Notification No. 225, dated 4-3-1889.
9. In deciding issue No. 3, against the appellants, what primarily weighed with the learned trial Court, was, that court-fee on an area measuring 450 Kanals from which no net profit accrued and the houses etc. was payable according to the market value thereof, which in its estimation was not less than Rs.1,50,000 but no court-fee was paid in that behalf. The learned trial Court also took an exception to the fixation of the landlord's share in Exh.P.5. as 1/3rd of the net profit. In the opinion of the learned trial Judge, the appellants did not pay the requisite court-fee deliberately and the right of pre-emption being piraticed in nature, they were not entitled to any opportunity to make good the deficiency at such late stage.
10. The view, taken by the learned trial Court, runs counter to the Supreme Court's dictum in Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289 at 320 and we feel that the appellants should have been given an opportunity to correct the value in the plaint and supply the deficiency in the court-fee. Furthermore, upon the facts of the case, in the light of this precedent, the non-payment of proper court-fee at the time of institution of the suit cannot be categorised as positive male fide or contumacious. Indeed the learned trial Court should have proceeded under sections 9 and 10 of the Court Fees Act. We may also refer here to section 15-A of the Punjab Tenancy Act, which ordains that the rent of any land payable by a tenant to the landlord by division of produce shall not exceed 40% of the produce. Such being the correct position in law, 1/3rd of net profit, allocated to the landlord as his share, in Exh.P.5 seemingly does not suffer from any illegality. The learned trial Court's leaning towards the fixation of such share as one-half of the produce as per entries in the Khasra Girdawari Exh.P.4, is violative of section 15-A.
We are, therefore, unable to uphold its findings on issue No.
3. In view of our proposed decision on issue No. 9-C, this issue need not be pursued any further and the actual court-fee payable on the plaint ascertained.
11. We now deal with issue No. 9-C. In holding that the suit was barred by time, the learned trial Court recorded two-fold findings. Firstly, it maintained that since the deficiency in the court-fee was not made good within the period of limitation, the suit became barred by time. As regards the other ground for treating the suit as time-barred, it has already been observed that the sale-deed was executed on 15-9-1973 but was registered on 19-9-1973 under section 47 of the Registration Act, it would operate from the date of its execution and not the registration. The respondents' stand was that they took over the possession of the entire property on 15-9-1973 and thus, the suit filed on 17-9-1974 was barred by time. The evidence produced by them to prove this issue, in addition to the sale-deed, consisted of testimony of Mushtaq Ahmad, Raja Sarfraz Khan and Muhammad Zaman, D.Ws. The latter is one of the respondents-vendees. They deposed that the possession was handed over to the vendees on the date of execution of the sale-deed. The learned trial Court held that Article 10 of the Limitation Act applied and that from the date of delivery of possession the suit was barred by time. Its judgment was also influenced by the fact that none of the witnesses, was, cross-examined on the question of possession.
12. In view of the aforesaid judgment of the Supreme Court and the other case-law on the subject, the learned counsel for the appellants found it difficult to support the trial Court's decision to the effect that mere non-payment of the court-fee rendered the suit as barred by time. He, however, argued that the land was in possession of Muhammad Sharif and Muhammad Din tenants and thus, it was not capable of physical possession. In his submission, the date of registration of the sale-deed would be the starting point of limitation. In order to show that the land was occupied by the tenants, he referred to the testimony of Muhammad Zaman, respondent. He further cited Kamal Khan v. Sikandar Khan PLD 1951 Pesh. 57, Raja Maula Bakhsh v. Qadir Dad PLD 1953 B.J. 52, Gullan v.
Muhammad Ramzan PLD 1962 B.J. 33, to urge that in the circumstances of the case the period of limitation was not governed by the first part of the 3rd column of Articles of 10 ibid.
13. True enough, it is in statement of Muhammad Zaman, that the land was in possession of Muhammad Sharif and Muhammad Din Changer by caste but he has also unequivocally stated that it was ploughed by the vendees with their consent. Both Muhammad Zaman and Raja Muhammad Sarfraz have categorically deposed that the possession was taken over by the vendees by ploughing two Acres of the land under cultivation. Mushtaq Ahmed who is a cousin of the vendors, has also corroborated the version 'given by these two witnesses. There is no good ground to discard this evidence and more so for the reason that the factum of delivery of possession is also recorded in the sale-deed. Needless to mention that where a property is transferred by means of a sale-deed, requiring registration compulsorily, and the vendee is put in possession before its registration, it cannot be urged that the possession was not taken under the sale, merely because the sale-deed was registered on a subsequent date. We feel that the taking over possession by the appellants by ploughing some fields, is, demonstrative of a definite and tangible act amounting to notice to the people at argo. Further, ploughing over a part of the land by them, is, indicative f the existence of their dominion over the entire property bulk of hich being Banjar Qadeem was not expected to be furrowed.
14. We have considered the case-law cited at the bar on behalf of the appellants. In Mauzla Bakhsh's case the suit land formed part of a oint Khata and thus, was not considered capable of delivery of physical possession to the vendees. Such a situation does not obtain in the instant case.
In Peshawar judgment a comparison has been drawn between Articles 10 and 30 of the Act and maintained that the case was governed by section 30 of the Pre-emption Act, as the vendees had taken the possession of the part of the land in dispute. The third B.J. Ruling deals with a case in which instrument of sale was not executed and accordingly section 30 was applied. These precedents are qualified by the facts thereof and cannot render any aid to the cause of the appellants.
15. According to the appellants' learned counsel as the respondents did not produce the two tenants as witnesses, their oral evidence is not entitled to any weight. We are not persuaded by this argument. The appellants could have examined them as their witnesses. They, however, did not lead any evidence in rebuttal. The material brought on the record by the respondents sufficiently proves that actual physical possession of the entire property was delivered to them. On consideration of the evidence produced by the parties, we, feel that there is no sufficient balance of improbability to dislodge the trial Court's findings as to the truth of the respondents' evidence. Its findings on issue No. 9-C, therefore, do not call for any interference and we affirm the same.
16. As a result of this discussion, in view of our findings on issue No. 9-C, dismissal of the suit is upheld and accordingly this appeal fails. The parties are left to bear their own costs.