' The appeal is addressed against the order of the learned Additional Disrict Judge, Bagh, passed on February, 21, 1984, whereby the order of Sub-Judge, Bagh passed on Feburary 28, 1978, resulting in decreeing the suit for possession by pre-emption in favour of Muhammad Hayat Khan, was maintained.
2. Muhammad Hayat Khan pre-empted the sale of the suit land measuring 10 kanals 1-1/2 marlas out of 20 kanals 3 marlas comprising survey Nos. 343 and 346, situate in village Dhulli, Teshil Bagh.
The land was alienated by Din Muhammad, father of the pre-emptor through a registered sale deed executed on November, 27, 1971. The suit was instituted on November, 23, 1972. Haji Sardar Atta Muhammad Khan vendee, the ancestor of the defendant-appellants, resisted the suit on the ground of waiver and also claimed improvements in the sum of Rs,3,000. The trial Court decreed the suit on February, 28, 1978, The appeal preferred before the learned Additional District Judge, Bagh failed. The appellants have come in second appeal before this Court.
3. Mr. Abdul Rashid Abbasi, the learned Counsel for the appellants has raised the following points:--
(i) That plaintiffs suit was beyond time, as such it was liable to be dismissed;
(ii) that the pre-emptor consented to alienation of the suit land in favour of the vendee, as such his right of prior purchase is hit by waiver;
(iii) that the suit was hit by the principle of partial pre-emption; and
(iv) that the vendee was entitled to improvements in case of decree in favour of pre-emptor.
4. Mr. Nazir Hussain Shah Kazmi, the learned counsel for the pre-emptor, controverted the objections described above by supporting the orders of the subordinate Courts.
5. The limitation pertaining to a pre-emption suit is one year as contemplated under Article 10 of the Limitation Act, from the time when the purchaser takes, under the sale, physical possession of the whole of the property sold, or, where the subject of the sale does not admit of physical possession, when the instrument of sale is registered. Section 29 of the Right of Prior Purchase Act, next, postulates that in any case not covered by Article 10 of the Limitation Act, the period of limitation in a suit to enforce a right of prior purchase shall be one year--
(a) in the case of sale of agricultural land or village immovable property,--
(i) from the date of attestation of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Land Revenue Act,
(ii) 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 earlier.
' In the present case, the suit was instituted on November, 25, 1972. The endorsement on the plaint shows that the Presiding Officer was on leave on the relevant day and the plaint was endorsed by the Presiding Officer for the first time on December 10, 1972. In the circumstances, it was emphasised that it shall be deemed that the suit was instituted on December 10, 1972 and not on November 25, 1972. On this premises, it was proposed that the suit was patently beyond time.
6. Rule 1, Order 4, C.P.C., postulates that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. The date of institution of the suit as contemplated under Rule 1, is the date of presentation of the plaint. In the present case, the plaint was, obviously presented by pre-emptor personally on November 25, 1972. The endorsement is recorded on the plaint. It is also signed by some officer. There is a mention in the endorsement that the Sub-Judge was on leave. It is from this part of the endorsement that an objection is raised to canvass that the plaint was not presented before the Court. The contention finds no force, because it is evident from the endorsement that the plaint was duly presented and received in the Court despite the fact that the Presiding Officer was on leave. The initial presumption is that the Clerk of Court who received the plaint, was empowered to receive the plaint. Moreover, the order of presentation of the plaint is signed by an officer of the Court. That suggests that the officer who accepted and signed the plaint, was officiating on behalf of the Sub-Judge who happened to be on leave on the relevant day. The presentation and registration of the plaint was, therefore, valid.
7. The alternate position would be that in case of absence of the Presiding Officer, who happened to he on leave, it shall he deemed that the Court was closed. Thus, the presentation of plaint before the Presiding Officer on the day of his arrival would tantamount to institution of the suit on the day of opening of the Court. The period during which the Court remained closed due to leave of the Presiding Officer, has to he excluded. This is so as the pre-emptor cannot be condemned for no fault of his. An identical proposition was raised before the Division Bench of this, Court in Shamsauzzaman's case PLD 1971 Azad J&K 16. The learned Chief Justice of the time, resolved the controversy in the following manner:-- "When the Sub-Judge is on leave the office remains open and the plaints are received by his Clerk.
It shall be presumed that the Clerk has been authorised to receive the plaints. It does not require a formal order in writing. The Clerk can be authorised even verbally to receive the plaints. As pointed out by the learned Single Judge, the objection was not raised in the trial Court and was not the subject of an issue. The presumption being that all acts of Government officials are done properly, it is not necessary to frame an issue on the point and remand the case for evidence. At worst it shall be said that the Clerk of the Subordinate Court was not authorised to receive plaints and no arrangements had been made for receiving the plaints in the absence of the Presiding Officer.
Then the Court shall he deemed to have been closed during the time the Presiding Officer was on leave "
8. The objection of limitation was pressed on the other ground as well. It was emphasised that possession of the land passed on to the vendee much earlier than the registration of the sale deed.
Reference was made to the recitals of the sale deed and oral evidence of Sher Dost Khan and Sardar Atta Muhammad Khan, vendee.
9. It is accepted by the learned counsel for the appellants, that the objection of limitation was not raised in the written statement, as such no issue was constituted. In para. 3 of the written statement, however, it was averred that the suit land was in possession of the vendee for the last 9/10 years. The written statement was presented on April 28, 1973. The evidence of Sher Dost Khan, a witness of the vendee, was recorded on May, 17, 1977. In his examination-in-chief, the witness stated that the sale deed was executed 12 years earlier. In answer to a question in cross-examination, the witness deposed that the house was constructed by the vendee in the suit land 20/26 years earlier.
The possession of the land was not passed on in presence of this witness nor the sale deed was executed in his presence. The witnesses of the sale deed are Sardar Mir Hassan Khan, Lambardar and Sardar Muhammad Hassan. The vendor was identified before the Sub-Registrar by Sardar Mir Hassan Khan son of Hassan Khan Naldial. None of these witnesses was produced. The bald statement of Sher Dost Khan relating to possession was incredible in the sense that he referred to the execution of the sale deed as 12 years earlier, whereas the same was executed just 5-1/2 years prior to his testimony. Sardar Atta Muhammad Khan has appeared as a witness on June 5, 1977. He has not described exact time of taking possession of the suit land by virtue of sale in question. The evidence of the vendee, primarily, relates to improvements and waiver alleged to defeat the suit of the pre-emptor. There is no evidence of taking possession relating to the definite time. The copy of the Jamabandi for the year 2000 Bk. Appended with the plaint, on the other hand, shows possession of Din Muhammad, the vendor. In absence of any positive evidence relating to the period when possession of the suit land was passed on to the vendee, the contention is not acceptable.
10. So far as the recital is concerned, it is not a conclusive proof of passing of the possession of the land to the vendee under the sale. The recital contained in the sale deed may have its binding force on the parties to the sale but not against the third person. The admission of execution of agreement to sell and passing of possession of the suit land by virtue of such an agreement, cannot be construed as possession under valid sale. The agreement to sell does not constitute valid sale in the eye of law. For it-is only an agreement and nothing more. The transaction of sale is completed on duly registration of the instrument of sale. Therefore, the possession which precedes the registration of the sale deed, cannot be construed as possession of the land under the sale. An identical proposition received the attention of the Court in Mst. Phula Wanti's case AIR 1936 Pepsu 17, wherein the learned Judge observed as under:-- ' "The formal recital in the sale deed as to the delivery of possession is a very weak evidence even between the parties to the deed, but as against third person it can have no evidentiary value."
' Moreover, the recital refers to an agreement executed on September, 22, 1966 whereby a sum of Rs, 400 was received by the vendor from the vendee. The agreement was not produced in evidence. As to what was the nature of the agreement is unexplained. The amount of Rs, 400 received through the said agreement was shown to have been adjusted as part of the price of the suit land. This adjustment, again, was accepted to have been made at the time of execution of the sale deed. The other recital relating to delivery of possession of the suit land prior to the execution of the sale deed makes no reference to specific period when the possession was delivered to the vendee, of land under the sale. The recital being very vague, cannot be a positive proof of delivery of possession prior to the registration of the instrument of sale.
11. The next part of Article 10 of the Limitation Act pertains to the time of running of limitation with effect from the date of registration of the instrument of sale. Under second part of Article 10, there is no quarrel with the proposition that the suit was instituted well in time.
12. The proposition of limitation received attention of this Court in Manga's case PLD 1963 AJK 75.
The learned Judge analysed the scope of limitation to a pre-emption suit on the analysis of the authorities of sub-continent. The relevant observation is reproduced:-- "There are two clauses the terminus a quo under the first clause, time runs from the date when the purchaser takes under the sale sought to be impeached physical possession of the whole of the property sold and the second part comes into play only where the subject of sale does not admit of physical possession, and time runs from the date when the instrument of sale is registered.
Learned counsel for the vendee appellant has argued that his case is covered by part first of the terminus a quo provided in Article 10.
"We have three provisions of the law determining limitation in preemption suits. One has first to look to Article 10 of the Limitation Act; failing that to section 29 of the Right of Prior Purchase Act (corresponding to section 30 of the Punjab Pre-emption Act) and failing that to Art. 120 of the Limitation Act. The first thing which we have to find under Article 10, is whether the whole of the property sold admits of physical possession by the purchaser at the time of the sale. If it be so, then the limitation is one year from the date when the physical possession of the whole of the property is taken by the vendee under the sale. If the whole of the property does not so admit of physical possession, then we have to see whether the deed of sale has been regsitered. If registered, the limitation is one year from the date of registration. When both the abovementioned alternatives fail, i.e,, neither the whole of the property admits of physical possession by the purchaser at the time of sale nor is the instrument of sale registered, then section 29 of the Right of Prior Purchase Act will be looked to which provides that limitation shall be one year in the case of a sale of agricultural land or of immovable property, from the date of attestation of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Land Revenue Act. If there is no mutation attested, then we have to fall hack upon the residuary Article 120 of the Limitation Act, which provides six years from the date when the right to sue accrues."
' Despite the fact that the objection of limitation was not raised specifically and no issue was framed to that effect, it is noticed that the objection finds no support from the record. It is, therefore, not sustained.
13. The objection of partial pre-emption was equally not raised before the lower Courts, as such no issue was raised. In reference to this objection, it was contended that the sale deed was executed in respect of proportionate share of Shamlat Dch land in addition to the suit land. There is no reference to Shamlat Deh land in the sale deed. However, there is a reference to `Haqooq Dehi'. In case it is construed that reference to `Haqooq Dehi' tantamounts to proportionate share of Shamlat Dch land, even then the vendee cannot defeat the suit of the pre-emptor. It is well accepted that no Shamlat Deh land was available in District Poonch. This view was expressed by the Supreme Court in identical case of pre-emption from District Poonch. The learned counsel for the appellants, when asked to state at the bar as to whether there was Shamlat Deh land in the village, made enquiry from his client, in order to reply the question of Court. Feroze Khan, one of the appellants present in the Court, informed the learned counsel that there was no Shamlat Dch land in the village. In the circumstances, the objection having no force is, accordingly repelled.
14. The point of waiver was specifically raised in the pleadings of the vendee. An issue to that effect was raised. The term 'waiver' contemplated under the provisions of Pre-emption Law was evaluated in Shamas Din's case PLD 1986 AJK 108. It was construed in the following words:-- "Conscious renunciation or intentional relinquishment of a known right, to abandon or relinquish a known vested right by express declaration or by conduct."
' In that case, it was alleged that the pre-emptor was present at the time of execution of sale deed and that he denied to purchase the land for the requisite price. The contention of waiver was repelled by the District Judge. On appeal, this Court concurred with the finding of the District Judge as the evidence led by the vendee was insufficient and inadequate so much so to deny the pre- emptor of his vested right of prior purchase. In Ali Haider Khan's case PLD 1983 SC (AJ&K) 5, the proposition of waiver received attention of the Supreme Court. It was also a pre-emption suit. In that case, in order to prove waiver, an effort was made to produce the Audio Casette in which the conversation of the pre-emptor was recorded. It was alleged that waiver was proved against the pre-emptor. On construing the evidence produced in the case, the contention was repelled.
15. In order to prove waiver, it is enjoined upon the vendee to satisfy that the pre-emptor in whom right of prior purchase was vested, refused to purchase the suit land at the requisite price or by conduct abandoned or relinquished his vested right of prior purchase by associating in execution of transaction of sale or otherwise. In the present case, the vendee asserted that the pre-emptor was a willing and consenting party in the sale of the land in favour of the vendee. In order to prove the claim of waiver, it was imperative for the vendee to prove that the pre-emptor refused to purchase the land at the requisite price or he was partisan in the settlement of the bargain or that he associated in execution of the instrument of sale. The evidence led in support of the aforesaid contention, rests on the verbal testimony of Sardar Muhmmad Azeem, Sher Dost Khan and the vendee. Muhammad Azeem deposed that the bargain of the suit land was settled by him in presence of the parties as money was required by the vendor for the wedding of the brother of the pre-emptor. A part of the price, i.e, Rs, 500 received from the vendee was paid by this witness to a jeweller from whom the vendor pruchased jewellery for wedding. The testimony of this witness is unacceptable as it is quite in conflict with the recital of the sale deed. The endorsement of the Sub Registrar reflects that a sum of Rs, 500 was paid at the time of registration, whereas a sum of Rs, 500 was admitted to have been received by the vendor prior to the registration of the instrument.
There was a recital in the sale deed wherein it was shown that a sum of Rs, 400 was received vide agreement executed on September 22, 1966 and a sum of Rs, 100 received later on, was adjusted towards the price of the land. It was evident from the aforesaid recitals of the sale deed that a sum of Rs, 500 was received by the vendor about 5 years earlier to the execution of the sale deed. The story introduced by this witness to satisfy the Court for accepting the ground of waiver, is unconvincing. Movever, the version of this witness finds no support from the evidence of vendee.
The vendee in his examination-in-chief, deposed that he purchased the land for Rs, 1,000. A sum of Rs, 400 and Rs, 100 were paid to the vendor previously. Morever, the land was purchased by him with the consent of the pre-emptor as at the relevant time, the pre-emptor was in need of money for the wedding. The evidence of Sardar Atta Muhammad Khan, finds no corrboration from the other circumstances to believe that the pre-emptor, in fact, was a consenting party as he was in need of the money for his own wedding. This statement is further contradicted by an application moved by the vendee before the trial Court on February 25, 1978. In that application it was disclosed that the suit land was occupied by the vendee in 1952 by virtue of sale. The land was purchased by the vendee and it was delivered to the father of the pre-emptor. In that application as well, there was no reference to the fact that the pre-emptor approached the vendee for purchasing the land and giving its price to the father of the pre-emptor, to meet the expenditures of wedding. The oral evidence being quite contradictory, was not convincing.
' The subordinate Courts recorded their concurrent fmdings on the issue against the vendee. In presence of the concurrent findings of facts of the subordinate Courts, unless it is found that the subordinate Courts misread or misconstrued the evidence, it is not permissible to reverse the finding on the issue.
16. On the point of improvements, it was suggested by the learned counsel for the respondents that at present no improvement in the shape of construction, existed on spot. Sardar Muhammad Feroze Khan, one of the appellants present in the Court, admitted that the garages previously raised over the land in dispute, were not in existence at this time. In such a situation when the structure raised over the land does not exist, the objection of improvements loses its importance.
17. Before parting with the case, it is necessary to mention that two successive applications were made in the light of the provisions of Shariat Court Ordinance and Shariat Court Act, 1989. It was desired on behalf of the vendee that this Court may pronounce that the provisions of the Right of Prior Purchase Act were repugnant to the Islamic Law, as such the suit was liable to be dismissed.
18. The provisions of Shariat Court Ordinance and section 4 of the Shariat Court Act, 1989 empower the Shariat Court and the High Court to examine a questioned provision of law for its being repugnant to Islamic Law. In case the questioned provision of law was found repugnant to injunctions of Islam, recommendation was to be made to the Government for its relegislation in order to bring the questioned law or provision of law in conformity with the injunctions of Islam. The aforesaid provisions provide no assistance to the proposition under consideration. This is more so as the right of prior purchase vested in the preemptor has already merged into decree. Therefore, the right of prior purchase having already merged into decree, such a right cannot be demolished at this stage. These applications are disposed of accordingly.
' There is no force in the appeal. It is, therefore, dismissed with costs. The pre-emptor/decree- holder, if has not deposited the decretal amount by this time, shall deposit the same upto January 15, 1990, otherwise his suit shall stand dismissed.