RANA BHAGWANDAS, J.--Petitioner seeks leave to appeal from the Lahore High Court, Bahawalpur Bench judgment dated 4-7-2001 in Civil Revision No,161-D of 1984 whereby petitioner's revision petition directed against the judgments of the two Courts below was dismissed.
2. Land measuring 206 Kanals and 14 Marlas owned by Sher Muhammad and others was alienated in favour of petitioner Abdul Karim (since dead) vide Mutation No,195 dated 10-4-1964 for a sum of Rs,40,000. The sale in question was pre-empted by the plaintiff-respondent being an owner in the estate. It was the case of the respondent that he requested the petitioner to accept his superior right of pre-emption and surrender the suit land subject to payment of consideration, to which he did not agree obliging him to institute a suit for possession through pre-emption. The suit was resisted raising preliminary objections as well as controverting the issues of fact, leading to the settlement of the following issues:-- "(1) Is the property in dispute properly described in the plaint? If not, what is its proper description?
OPP.
(2) Is this suit barred by time? OPD
(3) Is the plaintiff's right of pre-emption superior to that of the defendant-vendee? OPP
(4) Has the plaintiff waived his right of pre-emption? OPD
(5) Relief."
3. Both the parties adduced evidence in support of their respective contentions. In the ultimate analysis, the suit was decreed in favour of respondent vide judgment and decree dated 30-9-1970, which was upheld and affirmed by the learned District Judge Rahim Yar Khan in appeal. Petitioner assailed both the judgments and decrees before the High Court in its revisional jurisdiction but without any success, hence this petition for leave to appeal.
4. Mr. Muhammad Munir Peracha, learned Advocate Supreme Court for the petitioner contended that the trial Court as well as the High Court, laboured under misconception of law by computing the period of limitation in a suit for pre-emption from the date of attestation of mutation instead of the date of taking over the possession of the suit land by the petitioner as asserted in the written statement. His next submission at the Bar was that though the land in suit was offered to the respondent before alienation but he declined to purchase the same with the result that he had waived his right and was estopped from disputing the right of the petitioner. His third and last thrust of argument was that the petitioner being an owner in the estate vide Mutation No,150 attested on 24-2-1961, had a superior right of pre-emption to that of the respondent but he was wrongly non-suited by the Courts below by misreading the evidence and misconstruction of law.
5. Dealing with the first contention, learned counsel referred to the provisions of section 30 of the Punjab Pre-emption Act, 1913 and Article 10 of the Schedule to the Limitation Act, which provide a period of one year in a suit for pre-emption commencing from the date of attestation of mutation or taking over the possession, whichever is earlier. Learned counsel referred to the evidence of the petitioner and his witness supporting the averment that in fact the possession of the suit land was handed over to the petitioner five months before the attestation of mutation. He vehemently urged that in his evidence, respondent-Fazal Muhammad denied the factum of taking over the possession for want of knowledge, which was neither express nor specific. Likewise, he took us through the evidence tending to show that the respondent declined to buy the land, though offered to purchase the same, at the time of striking the transaction. He heavily relied upon the evidence of Muhammad Akmal D.W.1 one of the vendors and petitioner Abdul Karim D.W.3 and Fazal Muhammad Shah P.W.1 and made a pointed reference to the statement of respondent Fazal Muhammad Shah. Learned counsel severely criticized the reasons recorded in para. 10 of the impugned judgment of the High Court observing that mere oral refusal of the plaintiff, even if admitted as correct, did not establish waiver.
6. Reverting to the question of superior right of the petitioner over the right of the pre-emptor in view of the fact that he is the owner of the estate by virtue of Mutation No,150 attested on 24-2-1961, learned counsel fairly referred to Muhammad Bakhsh v. Zia Ullah (PLD 1971 Baghdad-ul-Jadid 42), holding the view that in a suit for pre-emption where pre-emptor claimed superior right of pre- emption on the basis of being co-sharer in the Khata, acquired by means of a sale evidenced by mutation, he did not acquire any valid right or title to do so as to be deemed a co-sharer entitled to exercise the right of pre-emption under section 15 of the Punjab Pre-emption Act, 1913 in the absence of a registered instrument in terms of section 54 of the Transfer of Property Act. This view was followed in Pir Bakhsh v. Budhoo (PLD 1978 Baghdad-ul-Jadid 86). Judgment in Muhammad Bakhsh (supra) was upheld in Muhammad Bakhsh v. Ziaullah (1983 SCM R 988) holding the view that section 53-A of Transfer of Property Act creates no real right except one of defending the possession. It merely creates rights of ,estoppel between the proposed transferee and the transferor. It serves as a shield and not a sword. It does not confer, any active title or right of action on transferee except in defence of his rights under the deed. It follows, therefore, that such vendees, who are in breach of section 54 of the Transfer of Property Act cannot on the strength of section 53-A use such inchoate transactions as spring-board for claiming right in altogether different property on the strength of being owners or co-owners. To the same effect are the subsequent decisions of this Court in Muhammad Fazal v. Kaura (1999 SCM R 1870) and Muhammad Adalat Khan v. Sher Muhammad (2001 SCM R 1860).
7. Tracing the history of extension of provisions of sections 54 and 118 of Transfer of Property Act, 1882 to the erstwhile Bahawalpur State, Mr. Peracha stated at the Bar that vide Notification No,20 dated 28-5-1931, abovesaid provisions were extended to the then Bahawalpur State. He added that vide Notification No,183-ST dated 27-4-1935, these provisions were extended to all areas comprising Municipal Committees in the Province of Punjab. According to learned counsel, after the merger of Bahawalpur State into West Pakistan with effect from 14th October, 1955, notification of 1931 no longer remained in the field whereas the provisions of sections 54 and 118 of the Transfer of Property Act were made applicable to Province of Punjab vide Punjab Government's Notification dated 17-12-1974. Later on, by notification dated 22-11-1978, earlier Notification dated 17-12-1974 was superseded and provisions of sections 54 and 118 of the Act (ibid) were restricted in their application to only those areas falling within the municipalities and notified areas.
8. The question with regard to prospective or retrospective application of subsequent notification came up for consideration before this Court in Muhammad Khan v. Fazal Muhammad (1994 SCM R 281), in which it was observed that subsequent Notification could not act retrospectively so as to validate a transfer, which was invalid on the date it was entered into on account of earlier notification dated 17-12-1974. We are fully conscious of the fact that submission of the learned counsel stands repelled by the judgment reported as Noor Muhammad v. Ghulam Masih Gill (PLD 1965 (W.P) Baghdad-ul-Jadid 1), which was followed in subsequent cases, nevertheless, learned counsel earnestly urged that the view taken by this Court in the earlier cases would require-re- examination and re-consideration because a sale through mutation could well be pre-empted by a pre-emptor being owner in the estate or Khata by virtue of a registered deed in his favour and, after decree, he would acquire ownership by substituting the original owner, it would be unfair, unjust and anomalous to say that the original owner would not be considered as owner of the estate or defend his interest merely by reasons of breach of the provisions of section 54 of the Transfer of Property Act. The view taken earlier being too rigid and harsh needs revisiting by this Court.
9. Conversely, Mr. Gul Zarin Kiyani, learned Advocate Supreme Court appearing for the caveators wholeheartedly supported the impugned judgment on the premises that the view taken by Courts below and affirmed by the High Court was based on careful appreciation of evidence, correct construction of the law involving the issues relating to limitation, estoppel and absence of superior right of pre-emption against the petitioner. Apart from the cases referred to hereinabove, Mr.Kiyani cited some judgments on the point relating to limitation in a suit for pre-emption and the plea of estoppel, which need not be dilated upon since we are inclined to grant leave to appeal.
10. Having heard learned counsel for the parties at great length, we grant leave to appeal to re- examine the question of limitation in a suit for pre-emption in the backdrop of a transaction of sale effected through mutation and also to consider the question of applicability of sections 54 and 118 of the Transfer of Property Act in cases involving question of ownership through a mutation in the light of relevant provisions of the law and the cases decided earlier.
11. Since the petitioner is in physical occupation of the subject land, interim order dated 20-9-2001 shall continue in force. However, in view of the circumstance that the parties are litigating for their respective rights since 1964, at their joint request, office is directed to fix this case at an early date preferably before the year 2002 is out.