' This civil revision has been filed by the petitioner to call in question the judgment and decree, dated 12-9-1981 passed by the Additional District Judge, Muzaffargarh, accepting the appeal of the respondents, whereby judgment and decree, dated 31-1-1981 passed by the Civil Judge, Kot Addu, was reversed.
2. The facts giving rise to the present revision petition are that the plaintiff/respondents instituted a suit for possession through pre-emption on the land measuring 135 Kanals, 3 Marlas for a consideration of Rs,1,000 transferred by Jhanda in favour of vendees/petitioner, situated in Patti Jhandair Kot Addu, District Muzaffargarh, claiming to be the owner in the estate, in the Court of Civil Judge 1st Class, Kot Addu. The suit was contested by the defendants/respondents denying averments of the plaint raising preliminary objections, plaint hit by limitation, deficiency in court- fees, non-depositing Zar-i-Panjam within prescribed period and non-description of the property in dispute.
3. The controversy appearing at the pleadings of the parties led to the following issues:--
(1) Whether the suit is wrongly valued for the purpose of court-fee and jurisdiction, and the deficiency of the court-fee is not made good within time? If so, its effect? OPD
(2) Whether the suit is time-barred? OPD
(3) ' Relief.
4. The trial Court after recording and appreciating the evidence pro and contra of the parties vide judgment and decree, dated 31-1-1981 dismissed the suit. Feeling aggrieved the respondents/plaintiffs preferred an appeal, which came up for hearing before the learned Additional District Judge, Muzaffargarh, who vide judgment and decree, dated 12-9-1981 accepted the same and set aside the judgment and decree of the trial Court and decreed the suit.
5. Learned counsel for the petitioner contends that the plaintiffs/respondents at the time of institution of the suit have neither properly stamped the plaint nor had received the revenue paper including Khasra Girdawari, record of right, Jhar Pedawar, schedule of net profit before the institution of the suit. He further contended that for the property in dispute the court-fee was assessed less than the property. According to the measurement of the property in dispute Rs,42 court-fee is not in accordance with the total area of the property in dispute out of the area of 606 Kanals, 2 Marlas, 105 Kanals is Chahi Barani and the rest of the area was eulturable and court-fee would be assessed in accordance with the status of the property. At the time of the filing of the suit the revenue paper would have been annexed with the plaint. The net profit of preceding one year has not been assessed in accordance with section 7(c) of Court Fee Act. He further contends that if the court-fee is not valued in accordance with law, then it is an act of contumacy on the part of the plaintiff. He relies on Walayat Khatoon v. Khalil Khan and another PLD 1979 SC 821. He further contended that mutation in dispute was sanctioned. He further contends that after the mutation in dispute another mutation was attested. Mutation No,1194 is based on an agreement to sell, dated 8-6-1971. It is evident from the entries of the Mutation No,1194. And the time in this case will start running from the execution of the agreement to sell, when the defendant/vendor received sale consideration and the sale was completed. The suit was instituted on 26-11-1974 after the expiry of a period of three years from the date of agreement to sell. This point was also not adverted to by the First Appellate Court. Learned counsel for the petitioner has further submitted that the document Exh.P.2 shows that Jhar Pedawar was assessed of 8 Kanals while property in dispute was 130 Kanals, 3 Marlas and it was incumbent upon the plaintiff to assess the whole and not a portion of the property, and till today he has not made up the deficiency of court-fee leviable on the whole disputed property.
6. Learned counsel for the respondent vehemently opposed the arguments of the learned counsel for the petitioner. He contended that according to section 30 of the Punjab Pre-emption Act, 1913 the time will start running from the attestation of the mutation of sale by the Revenue Officer and not by executing the sale agreement. He further contended that agreement to sell does not pertain to the property in dispute. It was executed for some other property. It was executed for sale of P.I.
Units. At the time of execution of the agreement of sale the immovable property was not in question, and thus, the bargain mentioned in the agreement of sale was in respect of P.I. Units which were to be settled later on. He relies on Maulvi Abdul Aziz Khan v. Nawab Sarfraz Ali and others 1985 SCMR 98. The right of pre-emption can only be exercised on the sale of immovable property and not on the sale of the entitlement especially of Produce Index Units. He contended that even if for the sake of arguments it is presumed that the plaintiffs should have filed the suit for pre-emption against the execution of the agreement of sale then in that case Article 120 of the Limitation Act will be applicable for which limitation is six years for filing the suit. As to the plea of deficiency of court-fee, learned counsel for the respondent contended that the trial Court had itself determined Rs,41 the value. He had valued the suit under direction of the Court. The plaintiff had made up the deficiency within time, given by the Court and that once the Court had accepted the court-fee thereafter this objection could not be agitated in that Court. He relied on Muhammad Siddiq and 2 others v. Dr. Muhammad Ibrahim PLD 1981 Lah.
97. He further, contended that the dictum laid down in Walayat's case (supra) has been dissented in case of Siddiq Khan v. Abdus Shakoor PLD 1984 SC 289 and the Honourable Supreme Court has held that the matter of court-fee is not the matter between the litigant. It is matter between the Court and the litigant. And even if the plaint having deficient court-fee is filed even then it is a plaint in the eye of law. Validity of the limitation for filing of suit will not be affected by the deficient court-fee. He continued that the petitioner/defendant had not produced any evidence challenging the court-fee of the plaintiff. They have not produced Schedule of net profit and other relevant documents to rebutt the court-fee affixed by the plaintiff.
' I have heard the arguments of the learned counsel for the parties and also perused the record anxiously.
8. The instant suit has been filed on the sale of the land made thereon vide Mutation No,1194 attested on 26-11-1974 within a period of one year. The limitation for filing the suit for pre-emption has been provided under section 30 of the Punjab Pre-emption Act, 1913, which is reproduced as under:-- ' Section 30 Limitation.--- In any case not provided for by Article 10 of the Second Schedule of the Limitation Act, 1908 the period of limitation in a suit to enforce a 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 or 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 the 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;
(2) in the case of foreclosure of the right to redeem village immovable property or urban immovable property, from the date on which the title of mortgagee to the property becomes absolute;
(3) (3) in case of a sale of urban immovable property;
(4) from the date on which the vendee takes under the sale physical possession of any part of the property." and Article 10 of the First Schedule of Limitation Act, 1948 enshrines, that the period for limitation to enforce a right of pre-emption whether.The right is founded on law, or general usage, or on special contract, when the purchaser takes, under the sale sought to be impeached, physical possession of the whole of the property sold, or, where the subject of the sale does not admit of physical possession of the whole of the property sold, or, where the subject of the sale does not admit of physical possession when the instrument of sale is registered.
9. The period for limitation in a suit for pre-emption starts running in case of a sale of agricultural or of village immovable property under above-referred provisions of law
(i) from the date of attestation of the mutation of sale;
(ii) from the date of registration of the sale-deed.
(iii) from the date on which the vendee takes under the sale physical. ' possession of any part of the transferred property, but the time will start functioning from the date whichever is earlier;
(iv) from the date of physical possession of the whole of the property sold.
' There is a difference if the property is sold through mutation of sale and the vendee takes possession of any part of the property sold under the sale and if the property is sold through the registered sale-deed, the time will start functioning from the date of the transfer of the physical possession of whole of the property. In the instant case, the property has been transferred vide Mutation No,1194 attested on 26-11-1973, therefore, the time will start functioning from the date of attestation of mutation i,e, 26-11-1973.
10. As to the contention of the learned counsel for the petitioner that the time will start functioning from the date of execution of the agreement to sell. This agreement was not with respect to the property in dispute. It was pertaining to the produce Index Units when the immovable property was not in existence. It has been held in Maulvi Abdul Aziz Khan, (supra) that the agreement was simply for sale of units, which were not property, but only entitlement and not saleable, and thus, the agreement was void and ab initio. This contention of the learned counsel for the petitioner has no force which is repelled.
11. In view of the above discussion, I have no hesitation in observing that the instant suit has been filed by the plaintiff/respondent within time.
12. The contention of the learned counsel for the petitioner that the suit was insufficiently stamped and it was not a plaint in the eyes of law. It has been held in case of Siddique Khan and 2 others referred to above that the plaint is a plaint even if not properly stamped. In the instant case, the petitioner has filed the suit with deficient court-fee affixing Rs,1.12 only. The Court had directed the plaintiff to make up the requisite court-fee and determined the court-fee Rs,41 and the plaintiff in compliance with the order of the Court affixed Rs,42 within the period given by the Court, and thus, had made up the deficiency of court-fee. The petitioner has filed an application for permission to make up the deficiency of court-fee under section 149, C.P.C. The application of the petitioner was allowed unconditionally and deficient court-fee was paid within time and it has been held in case of Muhammad Siddique and 2 others v. Master Muhammad Ibrahim and 3 others PLD 1981 Lah. 97 that after the deficiency of the court-fee under the order of the Court plaint became valid and unless Court formally reviewed or revised its earlier order and this cannot be reversed through any finding given by Court on issues framed in a general way.
13. The principle laid down in the cases referred to above are fully applicable to the present case.
Therefore, there is no illegality in the impugned judgment and decree passed by the First Appellate Court which is unexceptionable.
Therefore, I see no merit in the present revision petition, which is dismissed.