This Regular Second Appeal arises out of a suit for possession through pre-emption of land measuring 1 Kanal situated in Mauza Pakki Kotli, Tehsil and District Sialkot, filed by Mehtab Din, predecessor-in-interest of the respondents on 18-12-1978 in the Court of Civil Judge, Sialkot. The superior right of pre-emption was claimed on the ground of being an owner of estate/Patti. The suit was resisted by the appellant who filed his written statement in the Court which gave rise to the following issues:--
(1) Whether the plaintiff is estopped by his works and conduct to bring this suit? OPD
(2) Whether a sum of Rs.17,000 was fixed in good faith or actually paid as price of the suit land? OPD
(3) What if Issue No.2 is proved was market value of the suit at the time of sale? O.P. Parties.
(4) Whether the plaintiff has got a superior right of pre-emption?OPP
(5) Relief.
After recording evidence of the parties, the trial Court held on Issue No.4 that the plaintiff had superior right of pre-emption and decreed the suit vide judgment and decree dated 14-1-1985. The appeal filed by the appellant was dismissed by the learned Additional District Judge, Sialkot, vide judgment and decree dated 31-5-1987.
2. The appellant's learned counsel contends that Mehtab Din plaintiff was not an owner in the estate and the Courts below misread the evidence on the record and drew wrong conclusions therefrom. Referring to the contents of the Register Haqdaran Zameen Exh.P-3 he submits that the plaintiff had sold or gifted his entire property and was no longer an owner in the estate. The learned counsel submits that the plaintiff had to show his ownership at three stages:---
(a) At the time of sale (18-12-1977).
(b) At the time of institution of the suit (18-12-1978).
(c) The date of the decision (14-1-1985).
The plaintiff failed to show his ownership in the estate at all the three stages and was not entitled to a decree in his favour. He submits that Mehtab plaintiff was owner of the following properties:-- Sr.No.Khasra No.KanalsMarlas
1. 260 6 6
2. 263 7
3. 264 3
4. 265 6 4
5. 301 2 8 Total 18 5 Khasra Nos.263, 264 and 265 measuring 9 Kanals, 11 Marlas were sold in favour of Mehboob Ahmad and Muhammad Yaqub sons of Lal Din. The remaining land measuring 8 Kanals, 14 Marlas (shown as 15-1/2 Marlas in Exh.P-3) was subsequently gifted in favour of Muhammad Hussain. Thus, in the disposed of his entire property. The document Exh.P-3 was also produced by the deceased plaintiff.
There is nothing to show that gift made by the deceased plaintiff in favour of Muhammad Hussain was ever challenged or set aside. The appellant is an owner in the estate. Mst. Sharifan had sold one Kanal of land in favour of the appellant in Khata No.127 in the same estate (Exh.D-10). On the basis of the sale-deed, mutation Exh.D-5 was sanctioned in the year 1972. The land is shown to be Chahi and assessed to land revenue. Therefore, even if it is built upon it remains agricultural. In this connection the learned counsel placed reliance on the following judgments:
(1) Salamat R.I v. Kanshi Ram (AIR 1918 Lah. 334).
(2) Chanan Din v. Chanan Din and others (AIR 1933 Lab. 213).
(3) Faqir Muhammad v. Kala Khan (AIR 1933 Pesh. 33):
(4) Muhammad Akhtar Chishti v. Ijaz Ahmad and 5 others (1982 CLC 1700).
He adds that the appellant had also purchased 1 Kanal of land from Muhammad Shaft whereupon mutation No.'(Exh.D-4) was sanctioned in his favour on 6-12-1978, hence even if Mehtab Din deceased remained an owner of 8 Kanals 14 Marlas (shown as 15-1/2 Marlas in Exh.P-3) of land the status of the parties being equal, the suit merited dismissal;
3. On the other hand, learned counsel for the respondents contends as under:
(1) Mst. Muhammad Bibi respondent No.8 was not impleaded in the first appeal before the learned Additional District Judge and could not be impleaded as respondent in second appeal. Reliance is placed on:
(a) Mst. Begum Bibi v. Bulaqi Shah and sons (AIR 1926 Lah. 34).
(b) Mating Than Gyaung v. Maung Than Hmo (AIR 1939 Rangoon 213).
(c) Palacherla Anandu and another v. Mallipudi Acharyula and another (AIR 1958 Andhra Pradesh 743).
(d) Qazi Mehar Din v. Mst. ' Murad Begum and others (PLD 1951 Baghdadrul-Jadid 1).
(e) Abdul Qadir and 5 others v. Muhammad Umar and others (PLD 1987 Lah. 232).
(f) Muhammad Suleman v. Abdul Rashid and 13 others (PLD 1987 Lah. 387).
(ii) The appeal is time-barred. Originally revision petition was filed on 4-7-1987 which was allowed to be converted into appeal on 19-11-1991.
(iii) The land purchased by the appellant from Mst. Sharifan was built upon and was no longer agricultural Land. In this connection reliance was placed on the case of Muhammad Hussain v.
Muhammad Ahmad Din etc. (1989 MLD 964) and Rahim Bakhsh v. Wahid Bakhsh (PLD 1979 Lah.
544).
(iv) The alleged gift by Mehtab Din was mentioned only in the Patwari note bearing in the document Exh.P-3. It was not independently proved. Moreover, the factum of the alleged gift was not pleaded in the written statement.
4. The argument of the respondents' learned counsel that the present appeal is time-barred, has no force. The impugned judgment and decree was passed by the appellate Court on 31-5-1987 and originally a revision petition challenging the same was filed on 4-7-1987, well within the period of limitation for filing an appeal. An application (C.M. No.2132-C/89) was filed on 4-5-1989 for conversion of the civil revision into R.S.A. The said application was allowed vide order dated 19-11- 1991 which was never assailed by the respondents in any higher legal forum. Since the civil revision was filed within the period of limitation prescribed for filing second appeal in this Court, after conversion the appeal would be deemed to be within time. The objection that the appeal qua Mst.
Muhammad Bibi has become barred by time appears to have force. She was not impleaded as a respondent in the first appeal before the learned Additional District Judge or in the present appeal till 19-11-1991. The argument of the appellant's learned counsel that Mst. Muhammad Bibi was not impleaded as her name was not included in the decree sheet prepared by the trial Court is factually incorrect. The decree sheet (Annexure G) placed on the record by the appellant clearly includes the name of Mst. Muhammad Bibi and there was absolutely no justification for her non- impleadment in the first appeal or the present one till 19-11-1991. The judgment of the trial Court to the extent of Mst. Muhammad Bibi had attained finality. Even otherwise the second appeal qua her became time-barred by the time she was formally allowed to be impleaded as a respondent (subject to the decision of the question of limitation). Hence the present appeal to the extent of Mst. Muhammad Bibi respondent No.8 is dismissed as being barred by limitation.
5. The argument of the appellant's learned counsel that the plaintiff/pre---emptor had disposed of his entire land through sale or gift appears to have considerable weight. The "Register Haqdaran Zameen" for the year 1971-72 was tendered in evidence by the plaintiff-pre-emptor as Exh.P-3 it contained the Patwar's note dated 16-1-1979 to the effect that Mehtab son of Hayat had sold Khasra Nos.363, 364 and 365 measuring 9 Kanals, 11 Marlas in favour of Mehboob Ahmad and Muhammad Yaqoob sons of Lal Din through Mutation No.36. The remaining land was gifted in favour of his son Muhammad Hussain. The plaintiff/pre-emptor never challenged the correctness of the entries made in the document Exh.P-3. Hence a Court of law is entitled to draw necessary conclusions flowing from the entries made therein. The mere fact that the appellant did not specifically plead that Mehtab had disposed of his entire Land will not disentitle him to agitate the point because he had generally denied the pre-emptive right of the, plaintiff who himself placed the above-referred document on the record showing that he had alienated his entire landed property. Therefore, he was no longer an owner in the estate to justify his claim of superior right of pre-emption. Even if it is assumed for the sake of argument that Mehtab Din deceased plaintiff never gifted 8 Kanals and 15-1/2 Marlas of land in favour of his son, it would at the most show that he remained an owner in the estate. The appellant has also become an owner in the estate after purchasing land measuring one Kanal from Mst. Sharifan through sale-deed Exh.D-10 on the basis of which Mutation No.257 (Exh.D-5) was sanctioned on 21-2-1972. The said land was assessed to land revenue and was classified as "Chahi". Therefore, even if it was built up, it remained agricultural land. The above view finds support from the judgments in the cases of Salamat R.I v.
Kanshi Ram (AIR 1918 Lah. 334), Chanan Din v. Chnan Din and others (AIR 1933 Lah. 213), Faqir Muhammad v. Kala Khan (AIR 1933 Pesh. 33) and Muhammad Akhtar Chishti v. Ijaz Ahmad and 5 others (1992 CLC 1700) relied upon by the appellant's learned counsel. Moreover, the appellant had purchased land measuring one Kanal from one Muhammad Shafi through a registered sale-deed on the basis of which Mutation No. 173 was sanctioned in his favour on 6-12-1978. This land was also situated in Mauza Pakki Kothi in which the land forming subject-matter of the suit was located.
Therefore, the contesting parties enjoyed equal status and in the absence of superior pre-emption right the suit merited dismissal.
6. For the foregoing discussion, this appeal is accepted to the extent of respondents Nos. l to 7 and the judgment and decrees of the Courts below are set aside to their extent. The parties are left to bear their own costs.