This judgment will dispose of the Civil Revision No. 247/72 and Civil Revision No. 30/73 as they arise out of the two consolidated pre-emption suits.
2: Facts out of which the two revision petitions have arisen are as tinder:-- Khasra No. 833 comprised of sole khata No. 15/20 measuring 39 kanals 7 marlas in the Jamabandi of the year 1963-64 (Exh. P. W. 1/1) is situated in the area of Sikandarpura, Tehsil Haripur. According to the Jamabandi of 1958-59, the Khata No; was 10/1/18 but Khata No has been changed in the year 1963-64, vide Jamabandi copy Eth. P. W. 1/1. According to this Jamabandi Khasra No. 833 in Khata No. 15/20 measuring 39 kanals 7 marlas was owned by Mst. Anayat begum daughter of Muhammad Hussain 2/3 share and Mst. Ilam Taj Bibi daughter of Qazi Muhammad Asghar 1/3rd share as Malikati-i-Qabza. By sale mutation No. 2298 attested on 31-12-1964, Mst. Ilam Taj Bibi sold her 1/3rd share in Khasra No, 833 to Mst. Anayat Begum. Thus, Mst. Anayat Begum, became the full owner of Khasra No. 833, in Khata No. 15/20, measuring 39 kanals 7 marlas.
By sale mutation No. 2903 attested on 29-8-1967, Khasra No. 833/1 measuring 20 kanals out of the entire area of 39 kanals 7 marlas (Khasra No. 833) was sold by Mst. Anayat Begum to Allah Ditta son of Motawali. By exchange mutation No. 3124 attested on 31-12-1968, Mst. Anayat Begum transferred 10/387 share equivalent to ten marlas out of Khasra No. 833/2 measuring 19 kanals 7 marlas to Allah Ditta. By sale mutation No. 3150 attested on 22-2-1969, Mst. Anayat Begum sold 160/387 share equal to 8 kanals out of Khasra No. 832/2, measuring 19 kanals 7 marlas in favour of Muhammad Akbar 7 shares, Slier Muhammad one-share sons of Sher Zaman, for an ostensible price of Rs. 13,432. Allahditta transferred by way of gift 1/20 share equal to one kanal out of Khasra No. 833/1 measuring 20 kanals in Khata No. 10/1/18, according to the Jamabandi of the year 1958-59 in favour of his two sons Muhammad Ashraf and Muhammad Aslam. The gift deed (Exh. P. W. 2/1) was executed on 29-1-1969 and registered on 30-1-1969. This gift deed was given effect to in the revenue record by gift mutation No. 3219 attested on 4-5-1969 in favour of Muhammad Ashraf and Muhammad Aslam. Mst. Anayat Begum has sold away the remaining area of Khasra No. 833 by several mutations but we are not concerned with them for the purpose of these revision petitions.
3. Allah Ditta instituted a suit for possession by pre-emption on 19-2-1970 (Suit No. 74/1 of 1970) with respect to sale mutation No. 3150 attested on 22-2-69 against the two vendees Muhammad Akbar and Sher Muhammad. Allah Ditta claimed preferential right of pre-emption against the two vendees on all the three grounds provided by section 12 of the N.-W.F.P. Pre-emption Act, 1950 (hereinafter referred to as the Act). He alleged that the sale was effected for Rs. 1,000.
4. Muhammad Aslam son of Allah Ditta also instituted a suit for pre-emption (No. 66/1 of 1970) on 12-2-1970 against the two vendees. Muhammad Aslam also claimed preferential right of pre- emption against the two vendees as provided by section 12 of the Act. He alleged that the sale was effected for Rs. 1,500.
5. By order-dated 3-6-1970, the two suits were consolidated and proceedings of the suits were continued in Suit No. 66/1 of 1970 odged by Muhammad Aslam.
6. The two defendant-vendees namely Muhammad Akbar and Sher Muhammad contested the suit. In both the suits the vendees denied the preferential right of pre-emption of the two rival plaintiffs on the ground that they both had become co-sharers in the suit land before the institution of the suits. They also pleaded that both the suits are barred by time, as they are in possession of the suit land since the time of the statement of the vendor regarding the mutation in their favour. As many as six issues were framed but the findings of the two Courts below on two issues are contested in these two revision petitions. These issues are:--
(2) Whether the suit is within time?
(5) Which of the pre-emptors has got a superior right of pre-emption?
7. The suit was tried by the Civil Judge, Haripur. He gave finding an issue No. 5 that Allah Ditta pre- emptor is a co-sharer in the suit land while Muhammad Aslam the rival pre-emptor has got land contiguous to the suit land and thus Allah Ditta plaintiff has got a superior right of Pre-emption as against Muhammad Aslam plaintiff. On Issue No. 2, he gave a finding that the impugned mutation No. 3150 was attested on 22-2-1969. The two suits were instituted on 12-2-1970 and 19-2-70 and as such both the suits are within time. In conclusion of the trial, the learned Civil Judge by his judgment dated 8-4-1972 granted a decree for possession by pre-emption of the suit property in favour of Allah Ditta (plaintiff) in File No. 74/1 of 1970 against the defendants on payment of Rs.
13,432. The suit of Muhammad Aslam plaintiff was dismissed.
8. .The two defendant-vendees challenged the decree in favour of Allah Ditta it, appeal before the District Judge, Hazara. Muhammad Aslam also preferred appeal against the dismissal of his suit.
The appellate Court heard the two appeals together. On the question of right of pre---emption of the two plaintiffs (rival pre-emptors) the learned appellate Court observed :--- "Through mutation No. 2903 dated 29-8-57 Mst. Inayat Begum sold 20 kanals out of the said khasra number to Allah Ditta. This land was given Khasra No. 833/1 though till the preparation of the new Jamabandi this kharsa number was also shown as part of Khata No. 15/20, hence the sale in favour of Muhammad Aslam out of Khasra No. 833/1 would not give him the right to claim that he is also co-sharer in the land sold .Out of Khasra No. 833/2. Allah Ditta however, stands on different footing.
He has become owner, by exchange, in Khasra No. 833/2, through exchange mutation No. 3124, dated 31-12-68. He being co-sharer in the land, while there is nothing on the record to show that the vendees have got the same right, hence her has been rightly held to have preferential right of pre-emption not only as against the rival pre-emptor who is only contiguous owner but the vendees."
Considering the question of limitation, the learned appellate Court after referring to section 31 of the Act and the oral evidence of the parties , observed :- "Reliance was also made in this connection on the entry of the khasra girdawari for Rabi 1968. The plea, however, cannot be entertained for more than one reason. Firstly there is nothing in the written statement that the land had been purchased jointly through another mutation and that subsequently Allah Ditta has transferred the suit area in their names and undoubtedly no new case can be set up in the evidence. Secondly, in the khasra girdawaris only Muhammad Akbar has been shown in possession half of Khasra No. 833(833/2). Sher Muhammad, the co-vendee, has not been shown in possession of any part of the land. Hence it could not be stated that the two vendees came in possession of the property under the sale and that it should be a notice to the public.
Thirdly, the vendees never purchased half of the khasra number and as such possession of one of them over half of the land would not show that he came into possession under the sale. The result of the discussion above would be that the limitation shall commence from the date of the attestation, I mean, 22-2-69 and the suits having been brought within the statutory period of one year are undoubtedly within time."
In conclusion of the discussion, the learned District Judge, finding no merits in the tyro appeals, dismissed them with costs by judgment-dated 23-10-1972, hence the two revision petitions.
9. Mr. Muhammad Nazirullah Khan, Advocate counsel for the vendee4 petitioners (in- Civil Revision No. 247/72) and vendee-respondents in the other civil revision petition (No. 30/73) argued that the two suits of the rival pre-emptors were barred by limitation. S. Usman Ali Shah, Advocate counsel for Muhammad Aslam petitioner (in Civil Revision No: 30/73) mainly challenged the finding of the two Courts below on issue No. 5 and contended that Muhammad Aslam petitioner is a co-sharer in the khata in suit and thus his rights are superior to the rival pre-emptor and the vendees.
10. The impugned sale mutation No. 3150 was attested on 22.2-1969. In both the suits, the defendant-vendees in their written statements have claimed that they have entered into possession of the suit land since the recording of the statement of the vendor on the impugned mutation. The impugned mutation No. 3150 was entered on the basis of Rnznamcha No. 251 (copy Exh. F. W. 1/4 dated 12-12-1968). In the Roznamcha, it is entered that the suit land out of Khasra No. 833/2 has been purchased and the possession has been obtained from the vendor at the spot. The impugned mutation No, 3150, copy Exh. P. W. 1/3, was entered by the patwari on 12-12-68 on the basis of Roznamcha No. 251 of the date and the sale price was shown as Rs. 13,432. Vide order- dated 31-12-1968, the Revenue Officer appointed the Circle Girdawar to examine Mst. Anayat Begum vendor as she was pardanashin lady. Me. Anayat Begum was examined by the Girdawari Circle on 23-1-1969 on the identification of Mahmood Shah Sarbarah Lambardar, Ghulam Mustafa Shah Sarbarah Lambardar and Allah Ditta (Motabar). In this statement she admitted that she has sold Khasra No. 833/2 measuring 19 kanals 7 marlas in Khata No. 101/1/18 to the extent of share of 160/387 equal to 8 kanals for a price of Rs. 13,432 in favour of Muhammad Akbar seven shares and Sher Muhammad one share y and that she has received the entire sale consideration. The Circle Girdawar along with his report dated 23-1-1969 placed the mutation before the Revenue Officer at Haripur and the mutation was attested by the Revenue officer on 22-2-1969 in accordance with the report of the Commissioner. As earlier stated in the Roznamcha dated. 12-12-1968, it is alleged that the possession of the area purchased has been taken by the vendees. The patwari has placed copy of Khasra Girdawari Exh. D. B. From Kharif 1968 to Kharif 1970. On the basis of the entries in the Girdawari, P. W. 1 Muhammad Aman, Patwari has stated in cross-examination:- "Copy of Khasra Girdawari Exh. P. B. (two sheets) from Kharif 1968 to Rabi 1970 and Kharif 1970 is in my hand and is correct. Muhammad Akbar, son of Sher Zaman is entered in cultivation column of Khasra Girdawari of Khasra No. 833 in Kharif 1968 to the extent of one-half towards east of Khasra No. 833 but the entry does not show as to in which capacity he is in possession. The same entry continues in Rabi 1969 regarding possession of Muhammad Akbar. In Kharif 1969 Muhammad Akbar is shown in possession of 8 kanals 10 marlas in Khasra No. 833. Muhammad Akbar has been shown in possession of the same area, i.e. 8 kanals 10 marlas, in Rabi 1970 in Khasra No. 833 and the same entry continues in Kharif 1970. Girdawari of Rabi 1971 has not been done."
The Roznamcha, plea of the defendant-vendees in their written statements, the entries in the Khasra Girdawaris and the evidence of patwari referred to above with regard to possessions would show that the vendees entered into possession of the suit land since Kharif 1968, The two vendees are neither shown co-sharers in the suit land nor they have been in cultivating possession of any portions of the suit land in the Jamabandi of the year 1963-64 copy Exh. P. W. 1/1. Thus it is established that the defendant---vendee-petitioners entered into possession of the suit land in Kharif 1968 from 12-12-1968 or at least from the date of the recording of the statement of the vendor by the Girdawar ors 23-1-1969 and as such they were entered in possession of the suit land before the attestation of the impugned mutation on 22-2-1969. The impugned sale regarding the impugned mutation was complete according to the Roznamcha on 12-12-1968 and according to the statement of the lady vendor on 23-1-1969.
11. Section 4 of the Act reads :--- "4. The right of pre-emption shall mean the right car a person to acquire agricultural land or village immovable property or urban immovable property in reference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosure of the right to redeem such property.
Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale."
Section 22 of the Act reads :--- "22. Any person entitled to a right of pre-emption may, when the sale or foreclosure has been completed bring a wit to enforce that right."
Section 31(1) of the Act reads:-- "31. 1n any case not provided for by Article 10 of the Second Schedule of the Limitation Act, 1908, as adapted by the Pakistan (Adaptation of Indian Laws) Order, 1949, the period of limitation in a suit to enforce 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 cat 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."
"Sale", as described in section 54 of Transfer of Property Act, is a transfer of ownership in exchange for a price paid. Under the same section, delivery of immovable property takes place when the seller places the buyer in possession of the property. Keeping in view the provision of sections 4, 22 and 31 of the Act and section 54 of the T. P. Act the right of pre-emption arises in respect of the sale of agricultural lands or village immovable property in respect of such land only when the sale has been completed. Only the person entitled to a right of pre-emption may when the sale has beers completed bring a writ to enforce that fight. The sale is complete when delivery of possession under the sale takes place. The entries to mutation proceedings are acceptable as evidence of the entry of title in the revenue record. A transfer of ownership takes place immediately when the alienation is complete. In Jangi v. Jhanda and others (P LD 1961 B J 43), it is held:-- "Sale of land shall be deemed to have been completed on the day on which it was effected and not on the date on which mutation in the revenue records was sanctioned about it. Title in the property passes when the transaction of sale is completed and is not post--poned till the attestation of the mutation in the revenue records."
In Rahmat Shah and 2 others v. Sarwar and another (PLD 1971 Pesh. 205), it has been observed:-- Mutation simply means alteration of an entry in the revenue record with the object of bringing the latter up-to-date. A mutation by itself does not confer any title. The mutations are maintained for fiscal purposes; but when the facts recorded are facts, which it is the duty of the Revenue Officer to record, then this record is important evidence, though not conclusive of those facts in view of section 35 of the Evidence Act and illustration (e) to section 114 of this Act. Entries in mutation proceedings can therefore be accepted as evidence, even without the revenue official who sanctioned them to be produced as witness. Reliance is placed on Nizamuddin v. Fateh Din. Thus the entry of title in the revenue records as the result of mutation proceedings is merely the recognition by the Revenue Officers of a title, which they believe to exist, However the method of transfer by mutation in the revenue record is recognised as a valid method of transfer of agricultural land. But it depends upon the intention of the parties to the transaction as to when the transfer or sale is to be deemed completed. A transfer of ownership takes place immediately when the alienation is complete. . . , "
12. Section 31 of the Act prescribes a period of limitation to enforce the right of pre--emption in a suit as one year. In case of a sale of agricultural land of village immovable property from tire date of attestation (if any), of the sale by the Revenue Officer 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 earlier. The sale of the suit land had beep completed in favour of the two brothers Muhammad Akbar and Sher Muhammad vendees on 23-1-1969. According to the Khasra Girdawari copy Exh. D.
B. And the evidence of the patwari P. W. 1, Muhammad Akbar has been shown in cultivating possession in Khasra No. 833 in Kharif 1968. Possession of one co-owner or co-sharer, in law, is deemed to be possession of the other co-owner or co-sharers and therefore both the brothers Muhammad Akbar and Muhammad Ashraf are to be deemed to be in possession of the suit land since Kharif 1968 under the sale. The possession of the two vendees over the suit land being earlier time the date of the attestation of the impugned mutation, the period of limitation shall be deemed to have commenced froth the lute of the entry into possession by the vendees over the suit land and not from the attestation of the impugned mutation. In this view of the evidence on record I, hold that the suit of Muhammad Aslam as well as that of Allah Ditta have been instituted beyond one year from the date of the entry into possession and are, therefore, barred by time.
13. Muhammad Aslam plaintiff-pre-emptor has become a co-sharer the suit Khata No. 10/1/18 on the basis of registered gift deed copy Exh. P. W. 2/1, executed on 29-1-1969 and registered on 30-1- 1969 on behalf of his father Allah Ditta before the institution of the two suits in. February 1970. Allah Ditta in his evidence as D. W. Shad admitted in, cross-examination that Muhammad Aslam plaintiff is also khata, Shank in, the suit land. I therefore disagreeing with the findings of the two---Courts below, on, the right of pre-emption of Muhammad Aslam on issue No. 5, hold tat he is also a co- sharer in the khata of the suit land. Allah Ditta and Muhammad Aslam will be entitled in proportion among themselves to the share they -already hold in the land in suit in view of section 13(a) of the Act.
14. In conclusion of the above discussion, the two pre-emption suits are held to be barred by time.
Consequently, while setting aside the judgments and decrees of the two Courts below on the issue of limitation, the revision of the defendant-vendees (C. R. No. 247/72) is accepted and the revision of Muhammad Aslam plaintiff-pre-emptor (Civil Revision No. 30, of 1973) is dismissed. Parties are left to bear their own costs, in both the petitions.
S. A. H.