' This revision petition is directed against judgment and decree dated 8-2-1988 whereby the learned lower appellate Court dismissed the appeal of the petitioner filed against judgment and decree dated 9-5-1985 passed by the learned trial Court through which the suit filed by the respondent for possession of land through pre-emption was decreed.
2. The facts giving rise to this revision petition shortly stated are that Daulat Khan who was one of the joint owners of the land through agreement of sale executed on 11-12-1974 agreed to sell land measuring 1 Kanal 14 Marlas in dispute to the petitioner for an amount of Rs,3,000. The vendee refused to execute sale-deed therefore, the petitioner filed suit for specific performance of the said agreement in which decree was passed in his favour. In execution of the said decree a sale-deed was executed in favour of the petitioner by the Local Commissioner appointed by the Court on 14- 7-1982 which was registered on the same date. Respondent Inayat Khan filed suit against the petitioner for pre-emption of the land sold in favour of the petitioner. He claimed that he had superior right of pre-emption on the ground that he was son of the vendor, owner of the estate and owner of the land in the same khata. The suit was contested by the petitioner. On the pleadings of the parties, the learned trial Court framed the following issues.
(1) Whether the plaintiff is estopped by word and conduct to file the suit? OPD.
(2) Whether suit is time-barred? OPD.
(3) Whether defendant has made improvements on suit land after sale before institution of suit, if so, of what amount? OPD.
(4) Whether suit has been improperly valued for court-fee and jurisdiction, if so, its effect? OPD.
(5) Whether suit land is exempt from operation of Pre-emption Act? OPD.
(6) Relief.
3. After considering the evidence produced by the parties the learned trial Court held that there was no evidence to prove issue No,1 therefore, the same was decided against the defendant/petitioner. Under issue No,2 it was held that the suit was not barred by time as the same was filed within one year from the date of registration of sale-deed on 14-7-1982. Issue No,3 was also answered against the present petitioner. It was held that it was not alleged by the petitioner nor proved that improvements were made after the registration of sale-deed and before the institution of the suit. It was also remarked that the petitioner failed to prove costs of improvements. Under issue No,4 it was held that there was no evidence produced to prove that issue therefore it was decided in favour of the plaintiff. Under issue No,5 it was held that village Tanda was not a town therefore, the said issue was answered against the petitioner. In the result the suit was decreed through judgment dated 9-5.1985 which was assailed by the petitioner in appeal filed before the learned Aver appellate Court which has been dismissed through judgment and decree dal 8-2-1988.
4. Learned counsel for the petitioner maintained that sale of the land was in fact completed when agreement of sale was executed on 11-12-1974 under which the possession of the land was delivered to the petitioner after payment of full consideration therefore, the suit should have been filed within one year from the said date and having been filed after the expiry of many years therefrom therefore, the same was barred by time. The precise argument of learned counsel for the petitioner is that with the payment of full price and delivery of the possession all the ingredients of sale were completed and it did not matter whether formality of registration of the deed was not completed. In support of this, reliance has been placed on judgments reported as Abdul Karim v.
Fazal Muhammad Shah (PLD 1967 SC 411), Sher Muhammad v. Rajada and another (PLD 1981 SC 591) and Sher Muhammad v. Rajad and another (PLD 1969 Lah. 471).
5. The argument though appeared to be attractive but could not stand the test of close scrutiny. It is in the agreement of sale Exh.D1 that the vendor was the temporary allotee of the land in dispute and he undertook to execute sale-deed after the confirment of full proprietary/ownership rights on him. It has been held in judgment reported as Haji Sultan Muhammad and another v. Muhammad Siddique (PLD 19,73 SC 347) that a sale made by a person to whom land was allotted temporarily was not a sale of any saleable right in the property which could be pre-empted as the temporary allotment does not create any right for the allottee which could be pre-empted. The judgments on which reliance has been placed by the learned counsel for the petitioner proceed upon different facts therefore the rule laid down in them is not attracted to the facts of the present case. The sale, deed in this case was executed on 14-7-1982 which was registered on the same date therefore, the suit filed within one year from the said date was rightly held to be within time. It may be pointed out here that it is evident from copy of Jamabandi Exh. P2 that the mutation for transfer of permanent proprietary rights in favour of the vendor was sanctioned on 24-5-1982.
6. Learned counsel for the petitioner faced with this situation attempted to argue that the period of limitation in this case prescribed for filing the suit has started on 11-12-1974 when possession of land was delivered to the petitioner at the time of execution of agreement of sale therefore, the suit should have been filed within one year from the said date even under Article 10 which provides that in case physical possession of land was delivered under the sale to the vendee the period of limitation was to start from the said date of delivery of possession. I am afraid the argument is wholly untenable. Under Article 10 of the Limitation Act the suit is to be filed within one year from the date of delivery of the possession of land under the sale to the vendee. It has already been held that agreement dated 11-12-1974 was not sale of the land in itself but was merely an agreement whereas the sale of the land was made when the sale-deed was executed and registered on 14-7- 1982 therefore, the possession of land earlier delivered to the petitioner under agreement of sale cannot be construed to be delivery of possession under the sale. It is firmly settled that if a vendee is already in possession when the sale was made his possession could not be treated to be possession under the sale. This view finds support from judgment reported as Abdul Aziz v. Hafiz Muhammad Abdullah and others (1984 CLC 300).
7. Learned counsel for the petitioner then argued that it was proved through evidence that the area where the land was situated had acquired the status of town or at least village therefore, the land in dispute being situated in the town or the village was not pre-emptible. No doubt the petitioner led evidence to prove that the area where the land was situated had all the facilities of electricity, hospital etc. but the learned counsel for the petitioner lost sight of the fact that merely because land was situated within boundaries of a town or village was not necessarily exempted from pre- emption merely due to such situation whereas under section 3 (2) and (3) which defines village immovable property and urban immovable property respectively it was necessary to prove that the property in dispute was other than agricultural land. In other words it 4 clear from the definition of village immovable property and urban immovable property that only those properties were village immovable properties and urban immovable properties which were not agricultural lands situated in a village or town. It is also in the evidence of the witnesses of the petitioner that there were houses built around the land in dispute which fact was denied by the respondent as in the cross-examination it was suggested to the witnesses that it was not so. The oral evidence of the petitioner has been considered by me but the same cannot be given any credence as no documentary evidence from the Revenue Record was produced to establish that the land became residential properties. Apart from this In the agreement of sale Exh. D1 the boundaries of the property in dispute have been mentioned as under:- North Road.
South Land of Karam Hussain.
East. Street.
West. Land of Allah Ditta and Shukar Din.
' The land in dispute itself was described as land comprising Khasra Number 3435. The same boundaries have been given in the sale-deed Exh.P1 dated 14-7-1982. If the building and houses had been constructed around the land in dispute as also on the adjacent land the boundaries of the land would have been mentioned with reference to those buildings. The two Courts below have recorded concurrent findings of facts on careful and elaborate appraisal of evidence that the land in dispute was not exempted from pre-emption which have not been shown to have suffered from misreading or mis-construction of the record therefore, no case has been made out for interference in the revisional jurisdiction.
8. Learned counsel for the petitioner then argued that the question of improvements has not been correctly decided inasmuch as the petitioner made an application for the appointment of Local Commissioner which application was dismissed without calling reply from the respondent. This argument has also no force, inasmuch as it has been found by both the Courts below that no improvements were proved to have been made bona fide after the sale-deed dated 14-7-1982 and before the filing of the suit as whatever construction was allegedly made by the petitioner was made immediately after the execution of agreement of sale-deed dated 11-12-1974 which as has been held was not the sale itself. It is in the evidence of D.W.2 a witness produced by the petitioner himself that agreement of sale was executed because the vendor was merely temporary allottee which means that the petitioner was aware that no sale of the land could be made till the conferment of full proprietary rights on the temporary allottee. This fact being fully known to the petitioner and if in spite of that he had raised any construction after the execution of agreement of sale and before execution of sale-deed the petitioner had done so at his own risk.
9. The two Courts below have not been shown to have committed any material irregularity and illegality in the exercise of jurisdiction vested in them as no case of misreading or misconstruction or non-reading of evidence has been made out. The revision petition fails which is hereby dismissed with no order as to costs.
Revision .