' Mohammad Hayat plaintiff-petitioner herein instituted a suit in the Court of Civil Judge, Swabi for the possession of land measuring 6 kanals out of 73 kanals 16 marlas comprising in khasra No, 174 situated in Mauza Gangu Dher, Tehsil Swabi in exercise of his right of pre-emption on, inter alia, the ground of being the co-sharer vide his plaint dated and presented on 3-7-1979.
2. The suit was contested by the defendants-respondents herein on, inter alia, the ground that they have also attained the status of co-sharer in the khata by way of an exchange of land vide a registered deed dated also of 3-7-1979. Finding the parties at variance, the learned trial Court framed the following issues.
(1) Whether the suit is within time ?
(2) Whether the plaintiffs has a cause of action ?
(3) Whether the plaintiff has got a superior right of pre-emption ?
(4) Whether the sum of Rs, 6,000 has been paid and fixed in good faith ?
(5) What is the market value ?
(6) Relief. Additional Issue: ' Whether the defendants have improved their status by way of exchange dated 3-7-1979, if so, its effect.
' After recording such evidence as were produced by the parties in support of their respective pleadings, the learned Civil Judge decreed suit as per his judgment dated 23-2-1982.
3. Aggrieved therefrom, the respondent preferred an appeal before the Additional District Judge Mardan at Swabi which was allowed and the learned appellate Court, while setting aside the impugned judgment and decree, dismissed the suit of the petitioner as per his judgment dated 15- 6-1983. Hence this revision petition.
4. I have heard Mr. Mohammad Latif, Advocate learned counsel for the petitioner and Mr. Z. Mehfooz Khan, Advocate learned counsel for the respondents at length and also perused the record with considerable degree of care.
5. It is contended on behalf of the petitioner that the impugned judgment of the learned appellate Court suffers from an incurable infirmity in that it is an outcome of misreading of evidence and based on-mere surmises and conjectures. Elaborating his arguments, he submitted that although a vendee can improve his status after the taking place of sale yet he is precluded to do so after a suit, to pre-empt it, is instituted. He further submitted that since the suit and the exchange transaction, whereby the respondents have allegedly improved their status, have taken place on the same date, it was for the defendants to have proved conclusively that the exchange transaction has not taken place after the institution of the suit in terms of time.
6. As against this the learned counsel for the respondents maintained that notwithstanding the fact that before the institution of the suit the respondents had improved their status by entering into and effecting an exchange transaction of lands thereby having become co-sharers of the suit land; under the law it was for the petitioner to have sustained his right of pre-emption till the time the decree had passed and any breach therein, whether by operation of law or by an act of the parties concerned, shall disentitle him to a decree of pre-emption. He thus supported the findings of the learned appellate Court whereby the suit of the petitioner stands dismissed.
7. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
8. Perusal of the record reveals that the petitioner, in process of filing the pre-emption suit presented his plaint on 3-7-1979 to the Civil Judge Swabi. The learned trial Judge on that very day passed the order ( ). It was again presented to the learned Civil Judge, after the requisite check-up and report to that effect. The learned trial Judge, while admitting the plaint recorded his Order No,2 dated 3-7-1979, whereby he ordered to register the suit, issue notices to the defendants as also directed the plaintiff to deposit Rs, 1,500 before the next date i.e, 31-7-1979.
9. It appears that on the same date, the defendants entered into and effected an exchange transaction of land with Jamal Khan by giving him in exchange 5 marlas of land out of the suit khasra number as well as the khata by means of a registered Exchange Deed dated 3-7-1979. A photo copy of the exchange deed placed on the record as Ex.DW1/1 indicates that the stamp- papers therefore were purchased the same day as the suit was instituted, the deed of exchange was executed thereon and finally presented to the Sub-Registrar for registration between 12-00 noon and 1 p.m. The very day i.e, 3-7-1979. Although there is no controversy regarding the date of execution and that of the registration, let me re-iterate for the purpose of clarity that under section 47 of the Registration Act 1908 the Exchange Deed shall he operative from the date of its execution and not from the date of its registration and even in cases where under the relevant provision of the Registration Act a Deed is compulsorily required to be registered, its date of effect shall be the date of its execution.
10. It can thus be said with an amount of certainty that while in case of the suit, it stood instituted on 3-7-1979 when the plaint was presented to the Court under Order 4, Rule 1, C.P.C. And was admitted under Order 5, Rule 1 (ibid), in the case of exchange transaction, it had come into operation also on the same day i.e, 3-7-1979.
11. The law relevant to the facts of the case is contained in section 16 and subsection (2) of section 17 of the N.-W.F.P. Pre-emption Act, 1950 (hereinafter referred to as the Act) which reads as under: "Section 16. Effect of loss of right by pre-emptor prior to decree.--No decree for pre-emption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the time of the decree, but where a decree for pre-emption has been passed in favour of plaintiff, whether by a Court of first instance or of appeal, the right of such plaintiff shall not be affected any transfer or loss of his interest occurring after the date of such decree. Section 17. Sale of property to pre- emptor or acquisition of right by original purchaser prior to suit.--
(1) ..
(2) Any improvement, otherwise than through inheritance or succession, made in the status of vendee-defendant after the institution of a suit for pre-emption shall not affect the right of the pre- emptor/plaintiff in such suit."
12. The controversy that emerges from such a situation is the timing of the exchange having taken place, resulting in the improvement of the status of the vendee-respondent and consequent impact thereof on the fate of the case.
13. Such being the situation, it needs to be examined as to who is required to prove the plea of improvement of the status of the vendee in the instant case, terms of its timings, so as to establish that the exchange transaction became operative prior to the institution of the suit in order to avoid otherwise the effects of subsection (2) of section 17 of the act and whether such evidence is forthcoming or not.
14. The principle governing the burden of proof in general and in matters of asserting a right in civil proceedings unquestionably is that one who asserts it, is under obligation to prove the same. In this regard, the burden lay heavily on the vendee respondent to have proved this fact of controversy giving rise to the additional issue. A reference to the record, however, reveals that there is not an iota of evidence to indicate, much less to prove conclusively, that the exchange transaction, whereby respondents claimed an improvement of their status was prior and not after the institution of the suit. A careful examination of the stages in the form of the institution of the suit on the one hand and the time that the exchange transaction, culminating into the registration of its deed took, gives rise to a reasonable belief in my mind that the improvement of the status of the respondent-vendee could not take place prior to the institution of the suit inasmuch as there is no evidence whatsoever brought on the record in this behalf.
15. Consequently it poses hardly any difficulty to me in holding that the improvement of the statuts by means of the exchange transaction, having not been proved conclusively, as having taken place earlier than the institution of preemption suit, would be of no avail to the respondents in that it does not conform to the requisite condition, in term of timings, with subsection (2) of section 17 of the Act.
16. Before parting with the case I would like to deal with a point raised by the learned counsel for the respondents that it is for the plaintiff-pre-emptor to prove that till the date of decree, he has sustained his right of pre-emption under section 16 of the Act, and that any act of the vendee towards improvement of his status shall correspondingly cause a breach in right of the pre-emptor and may result in depriving him of the fruits thereof. It may be pertinent to note that in such a situation the provision as contained in subsection (2) of section 17 of the Act cannot be lost sight of nor can it stand negated. Rather, under the aforesaid law, it shall be the vendee who will have to establish conclusively, not only the improvement of his status itself but in terms of the timings also inasmuch as if it has taken place after the institution of a suit for pre-emption, there shall be cast no cloud on the pre-emptive right of pre-emptor as contemplated under section 16 of the Act. Nor the vendee can achieve the desired result and the suit shall have to be decided on its own merits. I have sought strength in this regard from a decision of this Court in case of Abdul Majid Khan v.
Shahzada Asif Jah reported in PLD 1970 Peshawar 37, the relevant portion thereof can be reproduced with advantage: "The main object and intention of Act VI of N.-W.F.P. Pre-emption (West Pakistan Amendment) Act, 1967, by adding subsection (2) to section 17 of the N.-W.F.P. Pre-emption Act, appears to conclude the controversy relating to the question of the vendee improving his status after the institution of the suit. Viewing the addition of subsection (2) of section 17 with this angle of the problem, we are of the opinion that this subsection (2) has been misplaced as to have been added to section 17.
This subsection (2) should have formed part of section 16 of the N.-W.F.P. Pre-emption Act and the same is not to be reduced to a nullity by its misplaced addition to section 17 of the N.-W.F.P. Pre- emption Act."
' And again: "In the present case the defendant-vendee (appellant) had improved his status during the pendency of the suit. The Amendment Act VI of 1967, lays down that any improvement made in the status of the vendee-defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor plaintiff in such suit and thus the improvement of the status by the defendant-vendee will be of no avail to him to effect any damage to the superior right of the pre- emptor."
' To the same effect is another decision of this Court in case of Muhammad Shuja and others v.
Sher Afzal Khan and others reported in PLD 1970 Pesh.
136.
17. Viewed the matter in the perspective of the foregoing discussion, I have no hesitation in holding that while assessing the respective rights and liabilities of the petitioner-pre-emptor and respondent-vendee, subsection (2) of section 17 of the N.-W.F.P. Pre-emption Act, 1950 shall not be considered as negating the provisions of section 16 (ibid); on the factual premises, the vendee- respondent was under legal obligation to prove not only improvement of their status on the basis of exchange transaction itself, but also that such acquisition of equal superior right on his part was prior to the institution of the suit and not thereafter. I am afraid, in the instant case the respondents have miserably failed in discharging this onus and accordingly the impugned judgment of the learned appellate Court cannot be sustained.
18. Resultantly the impugned judgment of the learned Additional District Judge, Mardan is set aside, that of the learned Civil Judge, Swabi is hereby restored and the suit of the petitioner stands decreed. The petitioner shall deposit within one month of the judgment, the balance amount of pre-emption money, if not paid so far, failing which his suit shall stand dismissed with costs. This revision petition is accordingly accepted with costs throughout.