Suit land measuring 526 Kanals, 11 Marlas was purchased by the appellants vide registered sale- deed dated 10-1-1979. The respondent claiming to be an owner in the estate and alleging that the appellants are strangers, filed a suit on 9-1-1980 for possession of the suit land by pre--emption. It was alleged in the plaint that the land has in fact been sold by the, vendors to the appellants for a consideration of Rs.2;00,000 and the sum of Rs.6,00,000 shown as sale price in the said sale-deed is fictitious. The appellants filed a written statement. They denied the superior right of pre--emption of the respondent as alleged in the plaint and further averred that they are also owners in the estate. It was also stated that a sum of Rs.6,00,000 was fixed in good faith and actually paid as the price of the land, to the vendors. Issues were framed by the learned Trial Court. The relevant issues pressed by the parties in this R.S.A. Are Issues Nos.7, 8 and 9 which are reproduced here as under:-- Issues:--
(7) Whether Rs.6,00,000 were actually fixed or paid in good faith?
(8) What was the market value of the suit land at the time of sale?
(9) Whether the plaintiff has got superior right of pre-emption qua the defendants?
Evidence of the parties was recorded. Learned Trial Court decreed the suit of the respondent vide Judgment and decree dated 13-6-1984. The appellants filed a first appeal which was heard by a learned Additional District Judge, Multan who dismissed the same on 15-1-1-1986.
2. Learned counsel for the appellants while attacking the findings of learned lower Courts on Issue No.9 have argued that it stood established on record that the appellants had acquired qualifications equal to those of the respondent before the institution of the suit and as such the suit was liable to be dismissed. Further contend that the learned Courts below have based their findings to the nature and effect of the gift deeds made in favour of the appellants vide documents Exh. D-2 and Exh. D-3 only on conjectures. As to issue No.7 it has been contended that the payment of price was made in presence of the Sub-Registrar and .This fact stood endorsed on the sale- deed and as such the appellants had proved the actual payment of the sale price as mentioned in the sale-deed.
Learned counsel for the respondents, on the other hand, have supported the impugned Judgment and decrees.
3. Learned counsel for the appellants have taken me through the several pieces of evidence on record in support of their respective contentions. I have already reproduced above the relevant portions of the respective pleadings of the parties. According to document Exh. D-2, Mst, Peran wife of Qadir Bakhsh gifted away 15 Kanals, 3 Marlas of land being 303/1292 share of land measuring 64 Kanals, 12 Marlas in the revenue estate of Basti Mithu Sharqi, Tehsil Shujabad District Multan as per Register Haqdaran-e-Zameen for the year 1976-77 in favour of her son Aashiq Hussain (appellant No.1) on 7-1-1980. Vide document Exh. D-3, the said lady gifted away one Kanal of land being 20/1292 share of 64 Kanals, 12 Marlas of land in the said revenue estate in favour of appellants Nos.2 and 3 on the same date. Both these documents were registered on 7-1-1980. These documents were incorporated in the Revenue Records vide mutations, copies whereof are Exh. D-4 and Exh.D-5 on the record. It is not the case of the respondent that said Mst. Peran was not the owner of the said land which was transferred by her to the appellants vide the said documents. The only objection raised to the said documents was that they had not been produced in accordance with the provisions of Order XIII, rule 1, C.P.C. This objection of course was raised at the time of production of the said documents. It was duly noted by the learned Trial Court who proceeded to reject the same for reasons recorded in its order dated 10-10-1982. During the course of their arguments, learned counsel for the respondent reiterated their said objection. All the said documents i.e. Exh.D-2 to Exh.D-4 are public documents being certified copies of public records.
They are thus, per se admissible in the evidence. The appellants had duly pleaded in their written statement that they are owners in the estate. I find that the said plea was put to all the P.Ws: including the respondent that the appellants had become owners in the estate by means of gift deeds before the institution of the suit. It, cannot, therefore, be said that the respondent was taken by surprise.
4. The learned Courts below have proceeded to hold that these gift deeds are sham. However, I find that there is no evidence whatsoever on record in support of the said findings of the learned Courts below. I find that the evidence of the appellants was recorded on 10-10-1982 on which date also the said gift deeds were produced-The respondent entered the witness box on 27-3-1983 and he did not make any such statement in the course of his testimony as P.W.3 to lend support to the observations of the learned Courts below made in their respective judgments regarding documents Exh.D-2 and Exh.D-3.
5. There is no material whatsoever on record to suggest that the gift deeds Exh. D-2 and Exh. D-3 are fictitious or malicious. The learned Courts below have observed that the gift deeds were made only to defeat the suit of the respondent. This may be so but while so observing the learned Courts below have failed to take note of the statutory provisions in force at the relevant time in the form of section 21-A of the Punjab Pre-emption Act, 1913. Under the said provision of Law, a vendee is entitled as of right to improve his status before the date of institution of the suit. It is an admitted fact that the appellants had improved their status as a result of the said gift deeds made in their favour. There is not even a remote suggestion either in the pleadings or in the evidence of the respondent that the said lady had not gifted away her land in favour of the appellants. So far as the observations of the learned Courts below as to non-delivery of possession is concerned, the same have been made in oblivion of the fact that the gift was of an undivided share in joint land.
Learned counsel have relied on the case of "Shamshad A.I Shah and others v. Syed Hassan Shah and others" (PLD 1960 (W.P.) Lahore 300) and "Abdullah and 3 others v. Abdul Karim and others (PLD 1968 SC 140). Both these cases have also been relied upon by the learned Courts below. According to the Law laid down in these two cases, the handing over of possession is necessary for completion of the gift and further the mere recital in the document of gift as to delivery of possession would be of no help where possession has infact not been delivered in the gift.
6. There is no cavil with the said preposition laid own in the said Judgment. However, it is equally true that it is not necessary in every case of gift that the subject-matter thereof should be physically handed over. Only such possession is to be handed over as is capable of delivery. I have already mentioned above that the donor had gifted away a share in the joint land each vide the said two gift deeds. According to Exh.P-15 which is copy of Khasra Girdawari in respect of the gifted land for the period Kharif 1978 to Rabi 1981, the land is recorded to be in joint possession of the co- owners and as such nothing turns on the fact that the appellants were not recorded to be in possession of the gifted land after the gift. The gift stood completed by the registered gift deeds and its further incorporation in the Revenue Records. Besides I find that apart from the fact that no such objection was infact raised by the respondent during the course of trial, the respondent even otherwise being a stranger had no locus standi to question the gift on the said ground. Reference be made to the case of "Khurshid Alam and two others v. Muhammad Shah Nawaz and 12 others (1985 CLC 1286), "Ahmad Yar and another v. Muhammad Aslam (1981 CLC 527) and Muhammad A.I and another v. Abdul Khaliq and another (PLD 1958 Lahore 226). Learned counsel for the appellants have also relied upon the case of "Dost Muhammad Khan v. Imam Bakhsh" (PLD 1971 Peshawar 150) which, fully supports the case of the appellants.
7. In the case of "Baqi Jan and 6 others v. Haji Mama Khel and others although a case of exchange yet the matter of delivery possession had assumed importance therein, the Supreme Court of Pakistan held that where land exchanged was a portion of joint land and as such not susceptible of delivery of physical possession, the question of actual possession would be of no significance.
8. In view of the above discussion, I hold that the findings of the learned Courts below that the gift deeds Exh. D-2 and Exh. D-3 were sham or that these were bad for non-delivery of possession, are not supported by any evidence or material on record and as such are based on no evidence whatsoever. I, therefore, set aside the findings of both the learned Courts below on Issue No.9 and hold that the appellants had acquired a qualification at par with that of the respondent before the institution of the suit in terms of the said section 21-A of the said and as such it could not be held that the respondent had a superior right of pre-emption as against the appellants.
9. So far as the findings on Issue No.7 are concerned, the copy of the sale-deed has been produced by the respondent as Exh.P-2 while the appellants have produced the original sale-deed dated 10- 1-979 as Exh.D-1. According to this document, the sale price was settled at Rs.6,00,000 and was to be paid by the appellants to the vendors at the time of registration of the sale-deed. According to the endorsement of the Sub-Registrar, the vendors appeared before him, admitted the execution of the sale-deed and received a sum of Rs.6,00,000 in his presence as the sale price of the suit land. The learned Courts below have relied upon the statement of Jhariya P. W. 2 who is a Lumbardar and had identified the vendors at the time of registration of the sale-deed. He has stated that in his presence only a sum of Rs.2,00,000 was paid. However, he proceeds to state that the amount was not counted in front of the Tehsildar and; that the money was in a bag which was handed over by the appellants to the vendors. In the course of his cross-examination, this witness has admitted that the Tehsildar had read-over the document to the parties who had understood the same and then subscribed to the document admitting its correctness. This witness has obviously made a false statement as the evident from his own statement. On the other side, the appellants produced Muhammad Ramzan a marginal witness to the said sale---deed who affirms that a sum of Rs.6,00,000 was paid in presence of the Sub-Registrar. In this state of evidence, it stood proved that a sum or Rs.6,00,000 was actually paid as sale price of the suit land the appellants to the vendors. The presumption attaching to the said certificate of the Sub-Registrar under section 60 of the Registration Act 1908 has not been rebutted by the respondent in the present case. Since the actual payment stands proved, there was no need for determining the market value of the suit land. Even otherwise in the presence of the registered documents, it was not safe for the learned Trial Court to have proceeded to determine the market value on the basis of scant evidence available on record.
10. The findings on Issues Nos.7 and 8 are also consequently reversed.
11. As a result of above discussion, this R.S.A. Is allowed. The judgment and decrees of both the learned Courts below are set aside and the suit of the respondent is dismissed leaving the parties to bear their own costs.