' IFTIKHAR MUHAMMAD CHAUDHRY, J.--This appeal is by the leave of the Court against judgment, dated 1st October, 1998 passed by Lahore High Court, Rawalpindi Bench.
2. Precisely stating facts of the case are that one Sher Zaman on 18-9-1978 purchased 149 Kanals, 18 Marlas of land out of Khasra No,3798, Khata and Khatuni No,29/54, and Khasra No,3807, Khata and Khatuni No,5786/1062 situated in Village Kal, Kahar, Tehsil and District Chakwal from one Muhammad Akber. The predecessor-in-interest of appellants namely Karam Khatoon wife of Haji Muhammad Latif instituted a suit on 30th July, 1979 for possession through pre-emption against the vendee on the ground as that she was real sister of the vendor and before selling the property by him to vendee no notice was given to her as per the provisions of Punjab Pre-emption Act, 1913.
3. The vendee (Sher Zaman) filed written statement wherein he stated that he had further sold the land to one Muhammad Shafi who has superior right of pre-emption than her, therefore, her suit is liable to be dismissed. Accordingly Muhammad Shafi was also impleaded as party. In his written statement he denied superior right of Mst. Karam Khatoon, predecessor-ininterest of appellants to claim superior right of pre-emption qua him. He further stated that Sher Zaman had sold the land to him recognizing his superior right of pre-emption.
' It may be noted that on 31st July, 1979 Muhammad Shafi, predecessor-in-interest of respondents filed a suit against Sher Zaman (Exh. D-2/2) which was decreed on the same day vide Exh.D-2/2 because attorney of defendant (Sher Zaman) appeared and conceded. To the claim of Muhammad Shafi.
3-A. The suit filed by Mst. Karam Khatoon predecessor-in-interest of appellants was decreed on 9- 6-1984 against which appeal was filed by Muhammad Shafi, predecessor-in-interest of respondents which was accepted on 4th July, 1984 and the case was remanded to the trial Court.
On remand the suit of Mst. Karam Khatoon was once again decreed on 24th July, 1985. Appeal filed against this order by Muhammad Shafi was also dismissed on 21-2-1986. As such against both these orders respondents preferred Civil Revision No,103-D of 1986, which has been allowed, vide impugned judgment. As such instant proceedings have been instituted.
4. Mr. Abdul Karim Khan Kundi learned counsel for appellants contended that late Muhammad Shafi obtained a collusive decree against Sher Zaman to frustrate claim of Mst. Karam Khatoon but such decree will have no legal effect for the reason that in the plaint, dated 31st July, 1979 it was alleged that Sher Zaman vendee has sold his property to Muhammad Shafi orally which is against the, provisions of section 54 of the Transfer of Property Act which now has been made applicable in the Province of Punjab with effect from 30th December, 1974. He argued that under section 54 of Transfer of Property Act if the value of the subject-matter is Rs,100 and upwards then a sale can only be made by a registered instrument. According to him admittedly the subject-matter of the suit is more than Rs,100 as such without a registered instrument so-called sale between Sher Zaman and late Muhammad Shafi was not recognizable and learned trial Court had granted the decree dated 31-7-1979 in his favour without attending to this aspect of the case. To substantiate his arguments reliance was placed by him on the judgments reported in PLD 1990 Lahore 229, PLD 1984 SC 424 and PLD 1999 Lahore 43.
5. On the other hand Mian Inamul Haq learned counsel for respondents contended that notwithstanding the fact whether section 54 of Transfer of Property Act has been made applicable in the Province of Punjab but even now the sale transactions in rural areas are being carried out through mutation entries in terms of section 42 of Land Revenue Act, 1967. He further stated that connotation of sale for the purpose of enforcing right of pre-emption had much wide scope than under an ordinary statute because such right is a right of substitution and a pre-emptor cannot be non-suited because his title to claim superior right of pre-emption is not based on registered sale- deed. Reference was made by him to judgments reported in PLD 1962 BJ 33, PLD 1967 SC 411, 1981 CLC 1756, 1099 SCMR 279 and 10 Indian Cases 367.
6. In view of the arguments of learned counsel for the parties question relating to general public importance involved in this case is whether sale of landed properties between two parties contrary to the provisions of section 54 of the Transfer of Property Act is not recognized under the law to enforce a superior right of pre-emption by one of the party or not? This question came up for consideration before this Court in the case of Abdul Karim v. Fazal Muhammad Shah (PLD 1967 SC 411) and Muhammad Bakhsh v. Ziaullah and others (1983. SCMR 988) in which earlier judgment in Abdul Karim's case as well as another judgment reported in PLD 1961 W.P. (B.J.) 34 (Janghi v.
Jhanda and others) were examined in depth. It is the case of appellants that the predecessor-in- interest of the respondent Muhammad Shafi had allegedly purchased the property from Sher Zaman in violation of section 54 of the Transfer of Property Act, therefore, no superior right was conferred upon the deceased to pre-empt the property. In view of these objections it may be noted that purchase of the suit land through oral transaction or by means of mutation entries for the purpose to establish that a sale of the property had taken place under section 3(5) of the Punjab Pre-emption Act, 1913 has to be examined whether the transaction is genuine or otherwise because notwithstanding the fact that late Muhammad Shafi did not obtain registered sale-deed from Sher Zaman but he was bound under the law to establish genuineness of the transaction. In support of its argument a para. From the case of Muhammad Bakhsh is reproduced hereinbelow:-- ' "The entries of the Revenue Record like the Jamabandi do not provide the foundation of title in property but are mere items of evidence to prove title Wali Muhammad v. Muhammad Bux (AIR 1930 PC 91). They have a presumption of correctness, which is rebuttable. The moment during scrutiny one reaches the transaction on the basis of which a change in the Revenue Record has been brought but then it is not the record but the transaction itself, not the secondary source but the primary one, which becomes the foundation of all claims and rights. It is clear in the two cases before us the justification for the entries in the Revenue Record showing the plaintiffs as co-sharers are owners was an oral transaction of purchase given effect to by a mutation in contravention of section 54 of the Transfer of Property Act. Such a transaction must satisfy the legal requirements and it is only when its conformity to law is established that title to property is created, legal rights and liabilities come into existexe. If the very substratum of the entries of the Revenue Record is found to be defective, deficient, or wanting the entries of the Revenue Record cannot create title in property or give rise to rights and liabilities as is claimed by the appellants.. They are of no avail to the appellants."
7. Learned counsel for the appellants contended that Muhammad Shafi obtained ex parte decree in his favour against vendee Sher Zaman vide Exh.D-2/2 without impleading Mst. Karam Khatoon as defendant in the suit knowing well that in respect of the same subject-matter she has filed a suit on 30th July, 1979 for possession, of the disputed property through pre .Emption. The contents of Exh.D-2/2 indicates that it was a collusive decree because immediately on filing of the suit the same was decreed without issuing notices to Sher Zaman because apparently under an arrangement both of them appeared in the Court and Sher Zaman through his attorney vendor conceded to the right of Muhammad Shafi and in his manner he obtained a decree in his favour which is based on sham transaction as it has been held in the case of Fateh Sher v. Mst. Niaz Bibi and 4 others (PLD 1999 Lahore 43). As per the facts of this case petitioner Fateh Sher to enforce his superior preemptive right filed a suit against the vendees on 28-7-1981. The vendees further sold the suit land in favour of Mst. Niaz Bibi respondent by means of a consent decree, dated 3rd September, 1981; as such she was also made a party in the suit. The trial Court decreed the suit on 27th July, 1983. Niaz Bibi filed an appeal, which was allowed by the District Judge on 23rd April, 1984.
Thereafter, Fateh Sher filed a revision petition before the High Court during hearing whereof learned High Court examined whether Niaz Bibi adopted the permissible device to defeat the suit of pre- emption of petitioner Fateh Sher or it was a disguise to hide the reality by a counterfeit appearance of transaction and was akin to deception. Learned Single Judge of Lahore High Court after detailed discussion and also seeking support from the judgments in the case of Muhammad Akram Khan v.
Mst. Kaniz Bibi and others (PLD 1952 Lahore 489), Musali Khan v. Nazir Ahmad and others (PLD 1952 Peshawar 1) and Abdul Aziz and others v. Abdullah and others (AIR 1925 Lahore 413) concluded that the transaction between the original purchaser and Niaz Bibi is based on fictitious sale on basis whereof she cannot claim a superior right of pre-emption, therefore, Fateh Sher is entitled for the decree of pre-emption being collateral of the vendor. In the instant case as well it is to be noted that late Muhammad Shafi on 31st July, 1979 filed a suit against Sher Zaman for declaration that he is owner with possession of land measuring 149 Kanals, 18 Marlas (the suit land) situated in Mouza Kalar Kahar, Tehsil Chakwal and the defendant (respondent) has no concern with it of whatsoever nature. A perusal of plaint does not indicate that on what date, time and in whose presence Sher Zaman recognized the superior right of pre-emption of Muhammad. Shafi in respect of disputed property. Inasmuch as the plaint does 'not find mention whether sale consideration of Rs,10,800 was also paid against a receipt in presence of witnesses or otherwise. Besides as it is not mentioned that on what date and time cause of action accrued to him for instituting the suit. At this juncture it would not be out of place to note that one day before filing of the suit by Muhammad Shafi against Sher Zaman, Mst. Karam Khatoon, predecessor-ininterest of appellants (original-emptor) had filed a suit against Sher Zaman. In the plaint date of registered sale-deed was mentioned to be 18th September, 1978 when cause of action accrued to her for filing of the suit.
It means that at least from this date it was publicly known to all the world that Muhammad Akber sold his land to Sher Zaman, therefore, with reference to the date of registered sale-deed it was obligatory upon late Muhammad Shafi to apprise him that he has a right of pre-emption in respect of this property. The most important aspect of the case is that Muhammad Shafi did not intentionally implead Karam Khatoon as one of the defendants because her suit for possession through pre-emption being prior in time was already pending for.Determination in the Court. There is yet another noticeable fact of the case which cannot be left unattended namely that suit filed by Muhammad Shafi against Sher Zaman has not proceeded because it was decreed/accepted on the same day when the plaint was submitted in the Court of Civil Judge, Chakwal. This fact goes to prove that Muhammad Shafi filed the suit against Sher Zaman with his collusion otherwise how it was possible for the Court to have passed the decree in his favour on the same date. Thus all these facts if are placed together keeping in view the fact that Mst. Karam Khatoon had filed a suit against Sher Zaman vendee, safely conclusion can be drawn that there was no other object but to defeat her suit on the plea that Muhammad Shafi had a superior right qua Mst. Karam Khatoon.
7-A. In the case of Muhammad Bakhsh (supra) while discussing evidentiary value of the Revenue Record it has been laid down that mutation entries were found in contravention of section 54 of the Transfer of Property Act in favour of the plaintiffs/pre-emptors, therefore, in this context it was further laid down that because of existence of mutation entries in favour of one of the party would give rise to a presumption of correctness, therefore, if such entries are to be accepted as an evidence then the transaction have to be examined to satisfy the legal requirement and it would be only when its conformity to law is established that title to property would be created, legal rights and liabilities would come into existence. It was further held that if very substratum of entries of Revenue Record is found to be defective, deficient or wanting the entries of revenue record would not create title in, property or would give rise to rights and liabilities as is claimed by appellants.
8. Applying above test on the facts of the case in hand whether as per contention of predecessor- in-interest of respondents Muhammad Shafi, Sher Zaman had verbally accepted his claim of pre- emption but later on he failed to hand over the property to him, as a result whereof suit was filed by Muhammad Shafi only for declaration. As such it is to be seen whether for the reasons mentioned above the suit was competent or he should have filed a suit free from all defects noted hereinabove for specific performance. Apparently the plaint dated 31-7-1979 indicates that the object of filing the same was nothing else but to obtain a decree in disguise of declaration simpliciter with no other object except to frustrate the suit of pre-emption filed by Mst. Karam Khatoon predecessor-in-interest of the appellants.
8-A. Undoubtedly the expression of sale as defined under section 3(5) of the Punjab. Pre-emption Act, 1913 has a wider scope than the sales in terms of section 54 of Transfer of Property Act as it has been held in the case of Jhangi v. Jhanda (ibid) and the view so taken has been confirmed in the case of Muhammad Bakhsh (supra). But if the transaction is based on a mutation entry or on oral commitment between two parties the pre-emptor claiming the superior right comparing to a pre- emptor whose suit is already pending is obliged to show that there was a genuine transaction between the parties. As it has been pointed out hereinabove that Muhammad Shafi filed a suit with collusion of Sher Taman and managed to get a sham decree in his favour details of which have been noted hereinabove, therefore, for such defective transaction Mst. Karam Khatoon or for that matter her legal heirs cannot be deprived from their legitimate entitlement to claim possession of the suit land through pre-emption. Learned High Court did not examine this aspect of the case nor took into consideration the judgments referred to herinabove, therefore, impugned judgment is not sustainable in law.
9. Learned counsel for the appellant argued that the suit filed by late Muhammad Shafi was also barred under the principle of lis pendens because he obtained a sham consent decree during pendency of suit filed by Mst. Karam Khatoon. In this behalf he relied upon Mst. Fateh Bibi v. Ahmad Khan and 6 others (PLD 1971 Lahore 171).
10. On the other hand learned counsel for the respondent contended that Muhammad Shafi purchased the suit property within the time prescribed for filing of pre-emption suit as admittedly he has a superior right qua Karam Khatoon, therefore, the decree obtained by him was sufficient to defeat the suit of Karam Khatoon. Reliance in this behalf was placed on Sunder Singh and others v.
Sajjan Singh and others (10 Indian Cases 367), Muhammad Bakhsh v. Qutabuddin and others (1981 CLC 1756) and Abdul Wajid v. Muhammad Ramzan and others (1999 SCMR 279). In the judgment of Lahore High Court in the case of Mst. Fateh Bibi (supra) it was held that it is also well established that a vendee may sell to a person who has an equal right with the pre-emptor or who has a superior right to the pre-emptor ante litem, so as to defeat the pre-emptor's claim provided the transaction is genuine. Whereas in the case of Sunder Singh (ibid) it was held that the doctrine of lis pendens would not apply to a case where a person, having an equal or superior right to a plaintiff/pre-emptor, asserted that right out of Court while the plaintiff s claim was pending in Court and the -vendee-defendant re-sold the property to the former by a private sale in recognition of that right.
' In the case of Muhammad Bakhsh (ibid) earlier judgment of Lahore High Court in the case of Fateh Bibi (supra) was relied upon and the principles laid down therein were reiterated.
' As far as judgment in the case of Abdul Wajid (ibid) it was held as under:-- "7. Learned counsel for the petitioner, however, candidly conceded that it was held in Mool Chand and others v. Ganga Jal and others (AIR 1930 Lahore 356), Mst. Sant Kaur v. Teja Singh and others (AIR 1946 (Lahore) 142), Mst. Fateh Bibi v. Ahmad Khan and 6 others (PLD 1971 Lahore 171) in which the previous two judgments of the Full Bench were thoroughly examined and Akram v. Mst. Sakina Begum and another (PLD 1984 SC 334) that in case of sale in favour of a person having right of pre- emption superior to the plaintiff during the pendency of the suit or before, the suit could only be defeated if the said sale was shown to have been made within period of limitation prescribed under the law for filing suit by such intervenor.
8. The question arises as to what would be the starting point of period of limitation in this case. In order to determine whether the sale made in favour of the petitioner was within one year from the said date, we have examined with the assistance of the learned counsel for the petitioner the mutation of sale (Exh. P1). It is revealed from the scrutiny of the same that it was entered on the report of the sale having taken place, on 20-4-1971. The case was put off for further proceedings as the District Council fee was to be paid. The statements of the parties were recorded on 22-6-1971 by the Revenue Officers in which they categorically stated that the sale had been made, the consideration had passed and the possession changed hands i.e,, the same had been delivered to the vendee. The formal order, however, for the sanction of mutation by the Revenue Officer was passed 'on 12-4-1972 in- which it was observed that the parties had already been examined on the said previous date and they had admitted the facts noted in the proceedings of the said date, therefore, in this case, the possession under the sale shall be deemed to have been delivered to the vendee on 22-6-1971 or even before that on 20-4-1971 when mutation was entered, therefore, even if counted from 22-6-1971, the limitation period for filing suit by the petitioner had expired on 22-6-1972. The notice was issued by the petitioner on 16-12-1972 to express his intention to enforce his superior right of pre-emption calling upon his father i.e,, the vendor to transfer the land to him in recognition of his right who made the sale in his favour on 1-1-1973. It was rightly held by all the Courts below that the very notice was issued after the expiry of period of limitation and the sale in his favour itself was made much after the expiry of the said period."
' As it has been discussed hereinabove that the decree obtained by late Muhammad Shafi was a sham decree, therefore, we are of the opinion that the suit filed by Muhammad Shafi was also barred by the principle of lis pendens. As far as the judgment cited by learned counsel for the respondent reported in 1999 SCMR 279 is concerned it needs no discussion because he obtained consent decree in his favour within the period of limitation prescribed for filing of the suit. Thus we are of the opinion that for this added reason as well Mst. Karam Khatoon has been wrongly non- suited.
' Thus, for the foregoing reasons appeal is allowed with costs and impugned order dated 1-10-1998 is set aside.