Mst. Parveen Akhtar respondent brought a suit for possession through pre-emption in respect of an area measuring 14,573 Sq. Ft. Equal to two Kanals 13 Marlas 7 Sersais out of the entire area of 45 Kanals 11 Marlas of Khasra No.7528/6324 bounded on North thoroughfare and plot of the plaintiff, South plot of Safaid Shah, West house belonging to Qasim and to the East Road, against the present petitioner who is vendee of the said area. It was averred in the plaint that the site in question was sold for Rs.2,500 which is its real sale price; that the sale has neither been brought about through registered sale-deed nor mutation, therefore, in spite of best efforts the sale-deed could not be traced. However, when last month the purchaser took over the possession of the Kotha constructed in the plot then on enquiry it was known that Ashiq Hussain vendee-- defendant No.2 has purchased this plot. Superior right was claimed on the qualification of co-sharership and contiguity. In his written statement the vendee --defendant described the suit as time-barred because according to him he had purchased the suit property on 4-10-1977 and the same day took over its possession. The sale ,price was shown by him as Rs.22,912 and the costs of laying foundation was estimated at Rs.2,000. The superior right of pre-emption of the plaintiff was: also denied.
2. The learned trial Judge dismissed the suit as time-barred and fixed the sale price at Rs.22,912 as the same was admitted by the attorney of the plaintiff, however, the main issue No.5 relating to superior right of pre-emption was left undetermined. On appeal the learned appellate Court while reversing the finding of the trial Judge on the issue of limitation decreed the suit of the plaintiff. It is to be noted that even the appellate Court failed to decide the most important issue of superior right of the plaintiff in respect of the suit property.
3. In this Court at the time of hearing when the failure of the lower Courts to decide issue No.5 of prior right of pre-emption was brought to the notice of an Hon'ble .Fudge, then by order dated 28- 7-1987 he directed the appellate Court of District Judge "to give finding on the said issue after hearing the parties and to remit the same to this Court within a period of two months". When the file was received in the appellate Court the learned counsel on both the sides agreed to the appointment of a commission for determining the following points on the spot:-
(a) "Whether the disputed place is an agricultural land or otherwise" ?
(b) Whether there is any passage on the site in dispute and, if so, whether it is thoroughfare or private passage used by the inhabitants of the same locality?
(c) The width and length of the passage should be given and the number of field in which it is located should also be indicated?
(d) Whether the suit field. Had been partitioned into different plots and houses have been built thereupon by different persons"?
Accordingly, Mr. Allaud Din Khan a local Advocate was appointed as commission for this purpose who along with patwari visited the spot, prepared the site plan, examined patwari, other witnesses and recorded statements of the parties. From his report when read as a whole the questions formulated above can be answered in this manner:-
(a) The disputed site is located in Khasra Nos.7528, 632.1 and about 200 houses have been ,built in this khasra number and that there is no agricultural land in it.
(b) According to the site plan attached with the report, towards the north of the disputed plot lies a road of 23 feet 1" wide and 368 feet in length and towards its East in Mardan Road, to South is Saw Machine of Nazar Shah and to West House No.103T of Muhammad Qasim.
(c) The road indicated above and some other as shown in the site plan prepared by the Commissioner lies in the disputed khasra number.
(d) The khasra number in question is divided into numerous plots which have been sold to various persons and many people have constructed residential houses over it.
4. It is apparent on record that the commission also recorded statements of some of the owners of the adjoining plots. The commission was also examined in Court as C.W.1 who approved his report.
Although he was cross-examined by the opposite side but it is clear that his statement regarding the nature of the property and its conversion from agricultural into residential has remained intact and in no way has either been shattered or discredited.
5.It is thus more than clear that the nature of the entire khasra number in which the suit site is situated has been converted into building site and even an inch of it is not being used for agricultural purposes nor for purposes subservient to the agricultural. Similarly, it is also proved that the suit plot is surrounded by numerous houses and shops and various roads have been constructed in this khasra number which are being used as approach to those houses and shops.
It is also pertinent to say that the plaintiff is not the original owner of this khasra A number but she has also purchased a specified plots out of it as has been deposed by Haji Wahid Hussain D.W.2 attorney of the vendor, the original owner of the khasra number. According to the statement of this witness he had made 22 plots in the disputed khasra number out of which the suit plot was sold to the defendant while one of such plots was purchased by the plaintiff. Similarly P.W.2 the attorney of the plaintiff admitted that his land was separated on the spot from the rest of the land and that he constructed wall all ;round it . This witness also stated: It is in the statement of the Commission that the plot purchased by the plaintiff is not in the vicinity of the suit site. In this state of record how and on what basis and ground the plaintiff can claim co-sharership in the plot in question. The word co-sharership presupposes that there are some other persons as well who have got a right in the property and it signifies persons owning a share in the whole of the property. This word co-sharer clearly denotes a person who holds an existing joint proprietary interest in an undivided property.
When the owner as in this case had divided the khasra number in different plots and had sold these plots to various persons out of whom many had constructed houses over it and road and thoroughfare have been made for access to these houses then the purchaser of 1 one of these plots like the plaintiff cannot claim a co-sharership in the houses and plots of others. In such a case even the original owner what to say of purchaser of a plot is deprived of rights and privileges which he previously enjoined. In this state of things the mere fact that a khasra number is assessed to land revenue or it continues to be shown as a khasra number in the record would not make it agricultural land to enable its owner to claim co-sharership over other separate distinct plots comprising in the same khasra number. So when the record indicates the area purchased by the petitioner and that purchased by the plaintiff stand separated with no joint characteristic then to hold them still joint owners would definitely go against the very spirit of Pre-emption Act. This aspect of the case has not been considered by the lower Court so much so that even the original Court as well as the appellate Court for the first time did not even refer to issue No.5 relating to superior right of pre-emption. Similarly, when this Court remitted the case to the appellate Court for decision on that issue and the report of the commission was obtained which was so clear on the point even then the appellate Court held the pre-emptor as co-sharer on the basis of entry in the Revenue record in ignoring all the relevant and legal aspects in this regard as indicated above.
It is thus obvious that the lower Courts have committed grave illegality in decision of the case.
Which would require interference for its rectification by this Court.
6.The next important issue in the case covering the allegation, "Whether the suit is within time" also remained a subject of lengthy discussion and debate at the time of hearing. The issue was framed as No.2 and was answered by the learned trial Judge m affirmative who held the suit as time- barred. The learned appellate Court reversing this finding held that there is no evidence to prove transfer of possession at the time of sale and that although sale has been proved but the discrepancy in the evidence would certainly disprove the time of transaction. To go deep in this matter would only result in exercise of appreciation of evidence in the case and to know as to which Court has rightly appreciated the evidence on record. The appreciation of evidence and the substitution of finding on the basis of such appreciation is not a function of this Court while exercising revisional jurisdiction. The decision of the appellate Court 1 on a question of fact would be final and would not be liable to interference in revision. So keeping in view this principle 1 maintain the decision of the appellate Court on issue No.2 and hold that his conclusion in this respect as correct.
7. In view of the above discussion this revision petition is accepted. The judgment and decree of the appellate Court are reversed while those of the trial Court are restored with no order as to costs.