Vide Mutation No.3524 attested on 28-10-1979 the defendants --respondents Batin Khan and Ghazi Marjan sons of Muhammad Jan, purchased land measuring 28 Kanals one Marla out of seven Khasra numbers, described in the heading of the plaint, from Gul Wali Khan and Gul Nawar Khan sons of Noora Khan, for an ostensible sale consideration of Rs.1,50,000. This transaction as pre- empted by Sher Nawaz Khan plaintiff-petitioner herein on 26-10-1980, claiming to be a co-sharer in the. Suit land, participator in immunities and appendages such as right of a way and right to discharge water and also on the ground of contiguity. The defendants-respondents contested the suit and in their written statement raised several pleas, both technical and factual, which are reflected from the following issues:-
(1) Whether the suit is within time? OPP.
(2) Whether the suit is bad for partial pre-emption? OPD.
(3)Whether the suit is properly valued for the purposes of Court-fee and jurisdiction? OPP.
(4)Whether the defendants have effected improvement in the suit property to the tune of Rs.1,00,000 if so, its effect? OPD.
(5)Whether a sum of Rs.1,50,000 was fixed in good faith and paid actually as a sale consideration?
OPD.
(6)What is the market value? OP Parties.
(7)Whether the suit is incompetent in its present form? OPD.
(8)Whether the Plaintiff has got superior right of pre-emption? OPP.
(9)Relief.
2. After recording such of the evidence as the parties wished to adduce, the learned trial Judge passed a decree for possession through pre-emption, in respect of the suit land, in favour of the plaintiff-petitioner against the defendants-respondents on payment of Rs.85,002.30 as the price of the suit land plus Rs.4,235,84 as the costs of improvements, vide his judgment and decree dated 16-1-1985. Not content with the same the defendants/respondents preferred appeal before the learned District Judge, which came up for hearing before the learned Additional District Judge, Bannu who vide his judgment and decree dated 19-7-1987, by accepting the appeal and setting aside the judgment and decree of the learned trial Judge, dismissed the suit of the plaintiff- petitioner as being time-barred. Hence the present revision petition by the plaintiff --petitioner challenging the judgment of the appellate Court referred to above.
(3)1 have heard the learned counsel for the parties for sufficient length of time and perused the record of the case with their assistance.
(4)The thrust of the arguments of the learned counsel for the petitioner vehemently argued that the suit of the plaintiff-petitioner was within time under the relevant provisions of law; that the copy of Khasca Girdawari brought on the record which was made the basis of the judgment by the appellate Court, was neither produced by the Patwari Halqa at the time of recording of his statement as P.W.1 nor was duly exhibited by him in his statement, with the result that it could not be referred to by the learned appellate Court; that the finding of the appellate Court on the market value whereby he worked out the same on the basis of mutations attested during the preceding years as per the five years average, EXh.PW.l/4 was illegal and that the defendants/respondents had failed to establish their allegation of improvements in the suit land. The learned counsel for the defendants/respondents controverted all these assertions of the plaintiff-petitioner almost on the same grounds which are incorporated in the judgment of the Appellate Court.
5.I have given my anxious thought to the arguments of the learned counsel for the parties.
6. The question of limitation being the most, important is dealt with at the outset. For the proper appreciation of the same, it is necessary to produce section 31 of the N.-W.F.P. Pre-emption Act, 1950, since repealed, which was applicable at the time of the decision of the instant case-by the trial Court, and then to refer to various authorities delivered by the superior Courts on the same point:- 31.Limitation of suits for pre-emption In any case not provided for by Article 10 of the Second Schedule of the Limitation Act, 1908, the period of limitation in a suit to enforce a right of pre-emption under the provisions of this Act shall, notwithstanding anything in Article 120 of the said Schedule, be one year:- (1)In the case of a sale of agricultural land or of village immovable property; from the date of the attestation (if any) of the sale by a Revenue Officer, having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such land or property whichever date shall be the earlier."
7. The above provisions of law prescribed a period of one year from the date of attestation, if any, of the sale by the Revenue Officer, having jurisdiction in respect of mutation maintained under the Land Revenue Act or from the dateon which vendee takes under the sale physical possession of any part of such land A or property whichever date shall be the earlier. The learned counsel for the plaintiff-petitioner relied on the rulings reported as PLD 1984 Pcsh. 94, PLD 1985 Pesh. 95 and 1976 SCMR 362 in support of his contention that the second part of the provisions of law referred to above was not attracted to the facts of the present case but the same is to be decided according to the first part of subsection (1) of the section 31 of the Pre-emption Act. In case Mst. Fakhrunnisa v.
Mohibulah Khan PLD 1984 Pesh. 94, it was observed by his Lordship Mr. Justice Nazir Ahmad Bhatti of this Court, that the mere fact that a person is recorded in Khasra Girdawari being in possession of portion of land as vendee without any sale, mutation or registered deed of sale, would not prove that he was vendee of such portion of land. In the case Ajab Khan v. Abdul Jabar reported as PLD 1985 Pesh. 95 it was observed as follow:- "I have given my anxious consideration to the arguments of the learned counsel for the parties my the light of the evidence brought on record. In my opinion the arguments of the learned counsel for the respondent-pre--emptor have much substance in them. There is absolutely no evidence on the record as to the dale on which the possession of the suit land was delivered to the vendee- petitioner. The copies of Khasra Girdawari placed on file do not support the claim of the learned counsel for the vendee-petitioner that his client had obtained physical possession of the suit land much earlier than the date of attestation of sale mutation. The respondent-pre-emptor was not present at the time when the statement of the ladies-vendors was recorded by Girdawari Circle (Commissioner) on 9-10-1976, nor had the notice of the statement. He was, therefore, not bound by what was stated by the ladies-vendors in that statement in respect of delivery of possession of the suit land to the vendee-petitioner, which was also factually incorrect. He could also, in the circumstance, not be attributed with possessing the knowledge of a concluded contract of sale in favour of the vendee-petitioner earlier than the date of attestation of sale mutation. Under section 31 of the N.-W.F.P. Pre-emption Act, the vendee-petitioner, in order to non-suit the pre-emptor on the basis of limitation, had to prove the actual date on which physical possession of the land purchased by him was delivered to him and the suit was instituted by the pre-emptor after one year of such date. He failed to bring cogent evidence on the record in this regard. In such circumstances, the only date which was material for the purpose of deciding the issue of limitation was the date of attestation of sale mutation.
8. The Supreme Court authority, Imam Ali Shah v. Muhammad Sharif Khan reported as 1976 SCMR 362 is to the following effect:- "S. 31. Limitation --Requirement of law under S.31- Physical possession under the sale' Actual physical possession alleged by vendee to have been taken over from tenant of land before attestation of mutation vendor himself not being in actual physical possession of land not in position to deliver its physical possession to vendee and any agreement with tenant with regard to future attornments no fulfilment of requirement of law-suit for pre-emption having been filed within one year of the attestation of mutation, held not barred by limitation."
9. The cumulative effect of the above statutory provisions and the judicial pronouncement referred to above; leads me to the conclusion that in order to attract the applicability of the second part of subsection (1) of section 31 of the N.-W.F.P. Pre-emption Act, the following conditions must co-exist:- (i)That the vendor must be in actual physical possession of the land sold as distinguished from symbolical possession viz. Through tenant or licensee; (ii)That the vendor must put the vendee in actual phyiscal possession of the land at the time of sale; (iii)That the delivery of possession should be open and visible so as to constitute as a notice to the prospective pre-emptions; (iv)That the vendee must declare that he is so in possession under a sale transaction, effected on particular day from a particular vendor; (v)That a regular sale-deed or mutation has been executed/entered evidencing the sale transaction, and (vi)That there should be convincing evidence regarding the oral sale and delivery of possession under the sale.
10. In the case in hand none of the vendors were in actual physical possession of the suit land at the time of the sale and consequently were not in a position, to put the vendee in actual physical possession of any part of the suit land to serve as a notice to the prospective pre-emptor that change in the ownership has occurred. The entry of the Khasra Girdawari of Rabi 1979 does not show that the vendees were in actual physical possession of the suit land nor does it clarify as to how, when and from whom the defendants-respondents got the possession as vendee. The entries prior thereto, nowhere disclose the possession of the vendors either personally or through tenant but other persons are shown in possession as tenant-at-will and the change in Rabi 1979 regarding possession, could only be presumed to be the change of possession of the tenant. In the circumstances, the mere entry of the Khasra Girdawari for Rabi, 1979 could not be held to be conclusive proof of the change of possession under the sale and in the absence of any other positive evidence on behalf of the defendants-respondents to discharge the onus which legally lay upon them regarding the change of possession, the learned Appellate Court was not legally justified to hold that the suit was time-barred.
11. Regarding the inadmissibility of the Khasra Girdawari relied upon by the learned Appellate Court, the learned counsel for the petitioner relied upon case Khan Bahadur v. Arsala Khan reported as 1980 SCMR 665 wherein their Lordships have observed that un exhibited document could not be looked at and had to be excluded from consideration. The Khasra Girdawari referred to above is dated 5-10-1981 and it appears that the same was produced to the Commissioner at the time of spot inspection who appended the same along with his report, much after the statement of the Patwari had been recorded by the trial Court on 12-7-1981 and, therefore, this document does not bear any exhibit mark. It was the duty of the parties relying on the entries of Khasra Girdawari not only to get the same exhibited but also to prove the relevant contents -thereof, as according to law no presumption of truth attaches to it. This burden, in the instant case, being upon the defendants- respondents, they could not make use of said document and consequently the learned Appellate Court could not base its judgment solely on this document.
12. Learned counsel for the defendants/respondents also made a vain attempt to show that since the statement of the attorney of the vendor had been recorded through a commission on 6-4- 1979, this was the starting point of limitation regarding the suit for pre-emption against the impugned transaction of sale. I am afraid this contention cannot prevail in view of the clear observations of their Lordships, the Judges of the Supreme Court in case Gharib Shah v. Zarmar Gul reported as PLD 1984 SC 188 the relevant portion being to the following effect:- "It is obvious that subsection (8) of section 42 significantly makes it a condition precedent for any effective order that it shall be made only in the 'common assembly' in the estate to which the mutation relates. The argument of the learned counsel that vendors, statement recorded under subsection (6) of section 42 that they sold the land, is enough to close the proceedings and that subsection (8) need not be complied with and that to any case it was complied with even on .28- 12-1974 when the vendors made statement in this case, is without force. The words attestation used in section 31 is not the attestation by the vendors. It is the 'attestation of the sale' by the Revenue Officer' and that too in the form of an order' which is visualized by subsections (6), (7) and (8) of section 42. And the same amounts to the 'attestation of sale' referred in section 31 of the Pre- emption Act. The order passed on 28-12-1974 as it shows, was not final. It was yet to be followed by another order. He was to make the attestation as Revenue Officer after the proclamation mentioned therein. The use of words and in the order of 28-12-1974 and 9-1-1975 have to be read together in order to understand their true import and the intention underlying the same. Read in this context, the operative final order of "attestation of sale" in this case is of 9-1-1975. That being so, the suit filed on 7-1-1976 was within limitation. Thus, there is no force in the first argument of the learned counsel."
13, The suit mutation was attested on 28-10-1979 whereas the instant suit for pre-emption was filed on 26-10-1980 and, therefore, it was well within one year as provided for under Part-1 of subsection
(1) of section 31 of the N.-W.F.P. Pre--emption Act, 1950 and the finding of the learned trial Judge on the issue of limitation was perfectly according to law and the learned Appellate Court had erred in upsetting this finding.
14. As regards the conclusion of the Appellate Court regarding the market value I find nothing wrong in the method adopted by him to work out the one year average from the mutations incorporated m the five years average attested during the preceding one year. The law requires that the Courts should determine the market value of similar land in the vicinity at the time of the sale transaction and the one year average is more equitable and just than the five years average in view of the rapid increase in the prices of the lands. Consequently the finding of the learned appellate Court on issue No.6 is maintained.
1n the question of improvements effected by the defendants --respondents, there is concurrent findings of the two Courts below and the same does not call for interference in this revision petition.
16. The upshot of the above discussion is that this civil revision is accepted, the judgment and the decree dated 19-7-1987 of the Appellate Court (Additional District Judge, Bannu) one set aside and a decree for possession through pre--emption of the suit land is passed in favour of the plaintiff- petitioner against the defendants-respondents in lieu of Rs.1,38,068 as sale consideration plus Rs.4,236 as compensation for improvements. The record shows that an amount of Rs.85,002.30 has already been deposited by the plaintiff-petitioner in the trial Court. He is directed to deposit the balance amount within three months from today failing which his suit for possession through pre- emption shall stands dismissed. There is no order as to costs.