The appeal is addressed against the order of Icarned District Judge, Kotli, passed on December 11, 1988 whereby order of the learned Additional Sub-Judge, Kotli, passed on May 20, 1987, was maintained.
2. Muhammad, appellant acquired a consent decree against Kala, in respect of the suit land measuring 50 kanals 17 marlas, comprising survey numbers 1415 (23 kanals), 1451, 1455 (15 kanals 18 marlas), 1445, 1476 and 1477 (11 kanals 18 marlas out of 23 kanals 16 marlas), situate in village Khore, Tehsil Kotli. The decree was passed on August 25, 1977. On August 15, 1982, Allah Ditta challenged the decree as fraudulent and sought its annulment. In the alternative, the plaintiff prayed for possession of the suit land by pre-emption, on payment of Rs.50,000. The right of prior purchase was addressed on the grounds:
(i) as a co-sharer; and
(ii) as a collateral of Kala, judgment-debtor.
The suit was resisted by Muhammad. The trial Court decided the issue in respect of fraudulent character of the decree against the plaintiff. However, the suit was decreed on the basis of right of prior purchase, on payment of the price described in the plaint. This order was upheld by the learned District Judge.
3. Mr. Shahid Ahmad Rathore, the learned Counsel for the appellant, argued that the main ground constituting the right of prior purchase rested as co--sharer. The plaintiff-pre-emptor was found as co-sharer in the suit land except Survey numbers 1415, 1455 and 1451. The suit was, in view of the learned Counsel, liable to be dismissed to the extent of said survey numbers.
4. The record of rights appended with the pleadings of the parties--- supports the aforesaid contention of the learned Counsel for the appellant. It is also agreed by Malik Muhammad Yousuf, the learned Counsel for the respondent that in the aforesaid land, the plaintiff was not a co-sharer.
Nevertheless, it was pointed out that the pre-emptor succeeds in his claim on the other ground of his relationship with Kala, vendor judgment-debtor.
5. The other objection addressed at the Bar is that no specific ground of attack has been raised in the pleadings in respect of relationship of the pre--emptor with the vendor. It was emphasised that the law of pre-emption postulates that prospective pre-emptor must explicitly list the grounds constituting prior right of purchase. The fact that Allah Ditta was a collateral of Kala deceased and likely to inherit as a legal heir, was not specifically raised in 'the pleadings. The contention was controverted by the learned Counsel for the opposite party who argued that the plaintiff expressly described in his plaint that he was 'yak jaddi' of the vendor. In presence of the aforesaid pleadings, it .Was emphasised that no further explanation constituting ground of right of prior purchase was warranted. The learned Counsel cited 1985 CLC 2544:
6. It is enjoined that the particulars constituting cause of action, as relied by plaintiff, have to be described in the plaint. This is more so in a pre-emption suit, as the pre-emptor is required to expressly raise the grounds constituting his prior right of purchase, to enable the vendee to admit or repudiate his alleged claim. In present case, as noticed earlier, the plaintiff alleged his prior right of purchase (i) as a co-sharer in the suit land, and (ii) as a legal heir (residuary) of the vendor. The claim of right of prior purchase is expressly mentioned in the pleadings of the plaintiff. Therefore, the vendee cannot say that he was not aware of the ground-, of the claim of the pre-emptor.
7. It was accepted that the plaintiff was not found co-sharer in respect of survey numbers 1415, 1455 and 1451. His claim was, therefore, not maintainable on the ground of his being a co-sharer in the land in respect of these survey numbers. Nevertheless, the plaintiff succeeds in his claim vis-a-vis the land covered by these survey numbers on the second ground of his relationship with the vendor. The plaintiff produced Jan Muhammad, Muhammad Khan, Karim and himself appeared as a witness. In rebuttal, the vendee failed to appear as a witness. He produced Muhammad Hussain.
All the witnesses who appeared on behalf of the plaintiff, deposed that one Gauhar was the common ancestor of the plaintiff and Kala, the vendor. He was survived by Rajoo and Moosoo, two sons. Kala is son of Moosoo and Allah Ditta is son of Rajoo. The oral testimony in support of the aforesaid pedigree table was not challenged in cross-examination by the vendee. Muhammad Hussain, who appeared on behalf of the vendee, expressed his ignorance about the relationship of the plaintiff and Kala, defendant-respondent. The learned Counsel for the appellant was unable to point out any defect in the aforesaid evidence in support of relationship of the plaintiff with Kala, defendant-respondent.
8. The objection of limitation was raised in the arguments of the learned Counsel for the appellant, showing thereby that the suit was beyond time as it was instituted many years after passing of possession and the compromise decree. The limitation applicable to a suit of pre-emption is contemplated under section 29 of the Right of Prior Purchase Act and Articles 10 and 120 of the Limitation Act. Section 29 of the Right of Prior Purchase Act provides that in any case not covered by Article 10 of the Limitation Act, in a suit to enforce a right of prior purchase, the period of limitation shall be one year-- (a)in the' case of sale of agricultural land or village immovable property, from the date of attestation (if any) of the sale by a Revenue Officer in the register of mutations: from the date on which the vendee takes physical possession of any part of such land or property whichever date is earlier.
(b)
(c)
Before analyzing the proposition under the provisions of section 29, it is relevant to examine Article 10 of the Limitation Act. The limitation under Article 10, to enforce a right of pre-emption, is one year from the date when the purchaser takes, under the sale, physical possession of the whole of property sold, or, where the subject of the sale does not admit of physical possession, when the instrument of sale is registered. In present case, admittedly, the sale was not made through a registered sale-deed but through a decree. The second part of the Article, therefore, is not of any help. The first part of the Article pertains to transfer of physical possession of the suit land. It may be relevant to state here that in order to determine limitation, it is enjoined upon the Court to satisfy that physical possession of the land must be under the sale and not otherwise. For, unless it is determinable that physical possession of the land was taken under the sale, the first part of the Article will not be attracted. The provisions of first part of Article 10 of the Limitation Act and second part of section 29, clause (a), of the Right of Prior Purchase Act are identical so far as they relate to physical possession of the land. The only difference is that the second part of clause (a) of section 29 pertains to physical possession of any part of the property whereas Article 10 admits of passing of possession of whole of the property.
9. In order to determine the question of passing of physical possession, it is necessary to advert to the decree constituting the sale of the suit land. The compromise decree and the order of the Court indicate that the vendee acquired title in the land by an oral sale accompanied by physical possession of the land. The oral sale proceeded the compromise decree. This is more so, as one of the grounds addressed in the pleadings in the previous suit related to adverse possession. Thus, the admitted position is that physical possession of the land passed on to the vendee much earlier than the date of completion of the sale. The provisions of Article 10 are, obviously, not attracted in the present case.
10. The first part of section 29, clause (a), sets limitation of one year from the date of attestation of the sale in the register of mutations. A copy of mutation number 469 is placed on the file. It is not duly tendered in evidence.
11. Under the rules of procedure and the provisions of Evidence Act, a document is accepted in evidence when it is duly proved. However, this is not an absolute rule as certain documents of undisputed character, coming from proper custody, can be examined in evidence. This view finds support from a decision of the Supreme Court recorded in Maqsood Hussain Shah's case, PLD 1989 SC (Azad J & K) 45.
12. The mutation was attested on November 19, 1981. In case the first part of clause (a) of section 29 of the Right of Prior Purchase Act is applied, then the suit is obviously within time. The proposition of limitation applicable to a suit of pre-emption was analysed in Sher Alam's case, PLD 1989 SC (ATad J & K)
41. The principle of law enunciated in that case is squarely applicable to the case under consideration. A pre-emption suit not covered by the provisions of Article 10 of the Limitation Act or section 29 of the Right of Prior Purchase Act, falls under the provision of Article 120 of the Limitation Act. This is a residuary Article which provides limitation for a suit for which no period of limitation is provided elsewhere in the Act. In such a case, limitation is six years. It starts running from the date when the right to sue accrues. The provisions of this Article were applied by the lower Courts in the present case. In order to elaborate the question of limitation, we have to advert to determine the date of actual completion of sale of the suit land.
13. Section 54 of the Transfer of Property Act defines the term "sale" and the requisite conditions constituting a valid sale. "Sale" is described as transfer of ownership in exachange of price paid or promised or part paid and part promised. It is made in respect of tangible immovable property of the value of rupees one hundred and upwards, by a registered instrument and in case of immovable property of the value of less than rupees one hundred, by a registered sale-deed or by delivery of possession. Delivery of immovable property takes place where the seller places the buyer or his agent in possession of the property. The Transfer of Property Act occupies the field in Azad Kashmir. Thus, a legal sale takes effect on fulfilment of the aforesaid conditions.
14. Section 4 of the Right of Prior Purchase Act defines the scope of right of prior purchase and the manner of its enforcement. It further lays down that nothing in this section shall prevent a Court from holding that an alienation G purporting to be other than a sale, is in effect a sale. 1t is quite clear from the language used in this section that Court is empowered to determine that a benami or sham transaction or a compromise decree is in fact a sale. This view of the proposition finds support from Ghulam Muhammad's case, PLD 1981 SC (Azad J & K) 118 where the learned Chief Justice observed that the vendor and the vendee cannot defeat the pre-emptor by dressing the transaction of sale in the garb of a decree. When the Court by looking into incidents and conditions of the decree comes to the conclusion that the transaction was not a decree but in fact a sale, it was pre-emptible. The true question was to find out the real intention of the parties to the transaction. Such intention can be determined on the basis of all available material. The aforesaid authority enables this Court to hold that the H compromise decree in dispute in the present case, was in fact a transaction of sale. It admits of passing of the consideration and physical possession of the property by an oral agreement between the parties. However, it assumed legal shape on passing of the decree. The right to sue, therefore, accrued to the pre--emptor with effect from the date of passing of the decree. The suit is, therefore, within time both under the first part of clause
(a) of section 29 of the Right of Prior Purchase Act, i.e. On the basis of attestation of mutation, and Article 120 of the Limitation Act. No other point was canvassed at the Bar.
There is no force in the appeal. It is, therefore, dismissed with costs.