This regular Second Appeal is directed against the judgment and decree dated 19-11-1966, by which Mr. Sadiq Ali G. Khoja, the learned Additional District Judge, Multan accepting the appeal of Haji Sikandar Khan defendant --vendee (who, after his death during the pendency of appeal, is represented by his legal heirs and hereinafter being described as defendant-respondent) dismissed the pre-emption suit of Malik Khan Muhammad plaintiff/pre-emptor (hereinafter being referred to as the plaintiff-appellant) after setting aside the judgment and decree dated 9-11-1965 of the learned Civil Judge whereby he had decreed the pre-emption suit.
2. The plaintiff-appellant had brought a pre-emption suit against the defendant-respondent in respect of a piece of land measuring 3 kanals 10 marlas situated in the area of village Kot Malik, Tehsil Mailsi, District Multan. He alleged that the suit land had been sold by Mst. Bakhtawar Bibi in favour of the defendant-respondent for a sum of Rs.200 but the transaction had been given a false colour of gift in the registered gift deed, dated 26-11-1961. He claimed his superior right of pre- emption on the basis of his being co-sharer in the suit Khata and owner in the estate. The defendant-respondent resisted the suit and in his written statement, besides raising objections regarding correct description .Of the suit land in the plaint and limitation, asserted that the transaction was that of gift. He denied the claim of his opponent regarding the superiority of his pre-emptive right. On the pleadings of- the parties the learned trial Court framed the following issues:-
(1) Whether the transaction in dispute is not a sale ? OPD.
(2) Whether Rs.700 as the sale price was fixed in good faith or actually paid? OPD.
(3) What is the market value of the suit land?
(4) Whether the plaintiff has preferential right of pre-emptor, OPP.
(5) Whether the suit is within time? OPP.
(6) Relief.
3. After recording the evidence of the parties and hearing their counsel, the learned trial Judge decided issues Nos.l, 4 and 5 in favour of the plaintiff appellant and issue No.2 against the defendant-respondent. On issue No.3 he came to the conclusion that the market value of the suit land was Rs.200. He, therefore, decreed the suit on the payment of Rs.200 as pre-emption money.
Aggrieved by these findings the defendant-respondent went up in appeal to the Court of learned District Judge and the learned Additional District Judge, to whom the appeal was entrusted for disposal, vide his judgment and decree now under challenge, reversing the findings of the trial Court on issue Nos.4 and 5, accepted the appeal, set aside the judgment and decree of the lower Court and dismissed the suit. He, however, maintained the findings of the trial Judge on issue No.l and with regard to issues Nos.2 and 3 he came to the conclusion that Rs.700 was sale price of the suit land and this was its market value. He, therefore, modified the findings of the trial Court on these issues. Feeling dissatisfied with these findings, the plaintiff-appellant came up in second appeal.
4. The learned counsel for the plaintiff-appellant does not challenge the findings of the learned Additional District Judge on issue Nos.2 and 3 and submits that his client is ready to pay the pre- emption - money as fixed by the lower appellate Court. He, however, calls in question the findings of the learned Additional District Judge on issue Nos.4 and 5.
5. With reference to issue No.4, he submits that the plaintiff-appellant had become a co-sharer in the suit Khata by means of, an exchange transaction embodied in the registered exchange Deed No.3253, dated 16-1-1962, which was given effect in the Revenue record vide Mutation No.187 sanctioned on 24-1-1963 (Exh.P.3) which also finds mentioned 'in the copy of Jamabandi of 1961-62 (Exh.P.5). According to the learned counsel, initially the original exchange deed was not traceable but during the pendency of the suit when the plaintiff-appellant happened to lays hands on it, he on 18-10-1965 made an application to the trial Court, accompanied by the original exchange deed, for seeking permission to bring it on the record by way of additional evidence but his request was turned down on the ground of its belated production and the application being not supported by an affidavit. He contends that the particulars of the registered exchange deed are mentioned in column No.13 of mutation No.187 (Exh.P.3) and this entry is an important piece of evidence in support of the claims of the plaintiff-appellant that he was Khewatdar in the Khata and his statement to that effect goes unrebutted because the defendant-respondent, while appearing as his own witness, did not utter a Single word to rebut the assertion of his opponent. With regard to the evidentiary value of the entries of mutation, he has referred to Nizam Din and others v. Godar and others AIR 1934 PC 40, Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376, Abdul Ahad and others v. Toshan Din and 36 others PLD 1979 SC 890 and Rehmat Shah and two others v. Sarwar and another PLD 1971 SC Pesh. 205.
6. On the contrary, it is argued on behalf of the defendant-respondent that the plaintiff-appellant failed to bring on the original exchange deed, on the basis of which he had claimed co-ownership in the suit land, and mere production of the copy of Mutation No.178 (Exh.P.3) sanctioned on 24-1- 1963 and copy of Jamabandi of 1961-62 (Exh.P.5), in remark column of which there is a mention of Mutation No.187, was not enough for the proof of the claim of plaintiff-appellant that he was a co- sharer in the disputed Khata prior to the sale transaction in question which took effect on 26-11- 1962. He submits that mutation is not a part of record of rights nor does it create any title in the land and these are only fiscal proceedings to keep the Revenue record up to date. He has quoted Nathu Khan v. Fateh Muhammad and others AIR 1939 Lah. 395, Muhammad lqbal v. S.A.M. Khan, Member, Board of Revenue, West Pakistan, Lahore PLD 1970 Lah. 614 and Haji Abdul Wali Khan v.
Muhammad Hanif 1985 CLC 827 in support of his arguments.
7. With regard to the oral evidence of the parties, he submits that the silence of defendant- respondent, regarding the assertion of his opponent that he was a Khewatdar, would not by itself prove the claim of the latter because he is to succeed on the strength of his own case and not due to the weakness of his opponent.
8. This is true that a mutation is not a part of record of rights and no presumption of truth is attached of its entries but at the same time its entries. Which are made by the Revenue officials during the course of performance of their official function, cannot be lightly ignored because they are an important piece of evidence of the facts embodied therein. No doubt, the plaintiff-appellant during the course of his evidence could not bring on the record the original or certified copy of the exchange deed which constituted the foundation of his claim that he was a co-owner in the suit Khata prior to the transaction sought to be pre--empted and his attempt to produce it at the subsequent stage by way of additional evidence proved abortive but the fact remain that the existence of that exchange deed cannot be denied. The plaintiff-appellant, while appearing as his own witness, obviously on the strength of this document and the consequent exchange Mutation No.187 sanctioned on 24-1-1963, specifically asserted that he was a Khewatdar in the suit property and on that account he had superior right of pre--emption. This assertion, the defendant- respondent, during the course of his statement, has not dared to deny and his silence on this point tantamounts to his admission. The entry in column No.13 of exchange Mutation No.187 (Exh. P.3) sanctioned on 24-1-1963, which forms an integral part of the mutation, clearly embodies a statement to the effect that this exchange mutation was being entered. On 16-1-1963 on the strength of registered exchange Deed No.3253, dated' 16-1-1962. This entry constitutes an important piece of evidence in favour of the plaintiff-appellant. This entry coupled with the verbal assertion made by the plaintiff-appellant during the course of his statement before the trial Court, go a long way to prove that he had become co-owner in the suit Khata w.e.f. 16-1-1962 obviously much prior to the sale transaction, dated 26-11-1962, which is sought to be pre-empted. On the basis of this evidence led by the plaintiff-appellant, he was. Able to shift the onus of proof to his opponent who could not produce any evidence in rebuttal, not even a verbal denial. Since civil matters are decided by l preponderance of evidence and the evidence led by the plaintiff-appellant clearly outweighs the evidence of the defendant-respondent, the learned Additional District Judge was not justified in reversing the findings of the trial Court on issue No.4. His findings on this issue are, therefore, reversed and those of the trial Court restored.
9. As regards issue No.5, the learned counsel for the plaintiff-appellant with reference to certain recent authorities of the Supreme Court, particularly the one known as Shahna Khan v. Aulia Khan and others PLD 1984 SC 157, submits that the law of court-fee linked with limitation, as interpreted by these authorities, has radically changed and now no suit can be thrown out on this ground unless the Court first determine the amount of court-fee payable and affords the plaintiff or appellant, as the case may be, an opportunity to make good the deficiency within the specified time, and he fails to do so. In this case, according to the learned counsel, the learned trial Judge, at the time of institution of the suit with a provisional court-fee affixed on the plaint, did not ask the plaintiff-appellant to bring on the record the statement of annual net profit and to make up the deficiency of court-fee, if any, accordingly and later on his request the learned trial Court directed the preparation of the schedule of annual net profit and on its submission then directed him to supply the short fall and he made up the deficiency within the time specified by it and in these circumstances limitation could not intervene nor the suit could be dismissed as time-barred.
10. The learned counsel for the defendant-respondent, conversely, is of the view that the case-law quoted, and relied upon, by the learned Additional District Judge still holds good and the suit was rightly held to be time-barred on account of non-payment of full court-fee by the plaintiff- appellant till much after the lapse of limitation to bring the suit.
11. The suit was filed on 25-3-1963 with a valuation of Rs.75 for the purposes of court-fee and jurisdiction and court-fee affixed on the plaint accordingly. On the report of office the learned trial Judge directed the plaintiff-appellant to complete certain papers and get prepared the statement of net profit till 24-4--1963. On this date the plaintiff-appellant complied with the first part of the order and the suit was directed to be registered and notices were directed to be issued to the defendant for 27-5-1963. The file was put up on 28-5-1963 and the processes were again directed to be issued to the defendants for 25-6-1963. Meanwhile on 29-5-1963 the plaintiff-appellant made an application to the Court for directing Saddar Kanungo to prepare the statement of net profit and file the same in the Court. His request was acceded to on the same day. After another adjournment the suit was transferred to another Court where it remained pending from 31-7-1963 to 26-11-1963 where after it was transferred to yet another Court which on 26-11-1963 issued notice to the parties for 16-12-1963. The interim order of this date indicates that the plaintiff-appellant had deposited the one-fifth of pre-emption money and deposited the court-fee (in accordance with the statement of net profit).
12. The above resume shows that the learned trial Judge initially directed the plaintiff-appellant to get prepared the statement of annual net profit but after two or three adjournment he, on his request, took upon himself to get him prepared the statement and to a greater extent absolved him of this responsibility. Thereafter the suit continued to be transferred from one Court to another and one abruptly notices the interim order dated 16-12-1963 which indicates that the plaintiff- appellant had, obviously on the receipt of the statement of annual net profit, paid the court-fee, thereby making up the deficiency, if any. The observation of the learned Additional District Judge that the plaintiff-appellant had made up the deficiency on 26-11-1965 is incorrect. Probably he did not peruse the record. Thus there was no element of negligence, contumacy or positive mala fide on the part of plaintiff-appellant in not pay the court-fee in time and the limitation in this case did not intervene effectively to render the suit time-barred. The findings of the learned lower appellate Court on this issue are reversed and those of the trial Court restored but for different reason because it had held the suit within time on different grounds.
13. As a result, the appeal is accepted, the judgment and decree dated 19-11-1966 of the learned Additional District Judge, Multan, are set aside and the judgment and decree, dated 9-11-1965, of the learned Senior Civil Judge, Multan, are restored subject to the modification that the suit of the plaintiff-appellant is now decreed on the payment of Rs.700 instead of Rs.200 as pre-emption money (less already deposited) which he shall deposit for his opponent in the trial Court within three months from the date of this order, failing which his suit shall be deemed to have been dismissed. _