This is revision by Rahmat Ali and others, who purchased land measuring 47 Kanals situated in Chak No.162/TDA Tehsil and District Leiah from Noor Muhammad for a total consideration of Rs.40,000. The respondent filed a suit for possession in exercise of his superior right of pre-emption.
The respondent claimed that he is a co-sharer in the Khata as well as 'Khewatdar'. The petitioner resisted the suit and pleaded that the respondent is not a co-sharer while the plaintiff and the defendant both are Khewatdar. Therefore, the plaintiff has no preferential right. The trial Court according to the pleadings of the parties framed following issues:- (1)Whether the plaintiff has superior right of pre-emption qua the vendees-defendants?
(2)Whether a sum of Rs.40,000 was fixed in good faith or actually paid as price of the suit land ?
(3)If issue No.2 is not proved what was market value of the suit land at the time of sale?
(4)Whether the suit is vexatious and the defendants are entitled to special sort? If so to what extent?
(5)Whether the suit is time-barred?
(6)Whether the defendants made expenses in connection with sale transaction and improvement of the suit land? If so, to what extent?
(7)Relief.
2. The parties led their respective evidence and the trial Court after hearing arguments proceeded to hold that the plaintiff is not a co-sharer but both the parties are Khewatdar, therefore, their claim is at par. The trial Court after recording these findings proceeded to dismiss the suit of the respondent vide judgment and decree dated 27th July, 1983. The respondent assailed the findings of the trial Court through an appeal in the Court of District Judge, Leiah. The appeal was entrusted to Mr. Zulfiqar Ali Khan the then Additional District Judge, Leiah, who accepted the appeal vide judgment and decree dated 6th of November, 1983. It is now the defendants, who have assailed the order of the lower appellate Court through present revision petition, which was admitted to regular hearing and notice issued to the respondent. The respondent has contested this revision.
3.1 have heard Mirza Manzoor Ahmad, Advocate for the petitioners and Mr. Muhammad Younus Bhatti, Advocate for the respondent.
4. The learned counsel for the petitioners has argued that the land mutated in the name of the petitioners was as heirs, therefore, they were legally within their rights to improve upon their status.
It is added that the lower appellate Court failed to take into consideration the provision of section 21-A of the Punjab Pre-emption Act 1913. On the other hand, learned counsel for the respondent has argued that the petitioners were only allottees of the land and did not enjoy the proprietary rights, which were conferred upon them for the Ist time through mutation dated 24-3-1983. In this behalf the learned counsel has referred to Ex.D.2 and Ex.D.4.
5. I have given my anxious considerations to the arguments of both sides. It is admitted position that the petitioners are heirs of Wazir Ali s/o Fatu, who died on the eve of independence of the country at Faisalabad.He was allotted land in lieu of the land abandoned by him on the other side of the border. The names of the heirs of the said Wazir Ali including the present petitioners were incorporated in the revenue record through mutation No.2747 dated 27-10-1961. They were, however, given proprietary rights through mutation No.50 dated 24-3-1983. The important question which rises for determination and on which hinges the fate of this petition is as what is the nature of the transfer of land in the names of the petitioners? Whether it is succession or whether they are transferees in their own names and rights?
6. I am of the considered opinion that the land was mutated in the names of the petitioners as successors of Wazir Ali, who although was allotted this land yet not made full owner. This allotment was subject to verification and then confirmation. This process concluded on 24-3-1983, therefore, the petitioners received their share of the estate of their late father on this date. The mutation No.50 dated 24-3-1983, which is Ex.D.6 on the record goes a long way to support my view. The petitioners and others got land as heirs of Wazir Ali and not in any other capacity. This way the petitioners became owners of the land on 24-3-1983 instead of their late father. This improved their status.
This is permissible under section 21-A of the Punjab Pre-emption Act, which reads as under:- "Any improvement, otherwise than through inheritance or succession, made in the status of a vendee defendant after the institution of a suit for pre-emption shall not affect the right of the pre- emptor plaintiff in such suit."
7.It is, therefore, clear that a vendee cannot improve his status' after institution of suit for pre- emption but inheritance and succession are exceptions to this general rule.
8. The lower appellate Court rightly .Held that the petitioners became owners of the land on 24-3- 1983 but failed to take into consideration in what capacity? This was equally important. Their status cannot be anything else than that of the heirs of late Wazir Ali. The lower appellate Court has failed to apply correct law. Therefore, the decision is bad and liable to be set aside.
9.The result is that this revision succeeds. The judgment and decree of the lower appellate Court is set-aside and that of the trial Court is restored. The result is that the suit of the respondents shall remian dismissed. There is no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.