JUDGMENT ABDUL SHAKOOR PARACHA, J. -- Through this writ petition the petitioners assail the order dated 2.3.1991 passed by Additional District Judge, Sargodha, and restoration of order dated 13.11.1990 passed by the Civil Judge, lst Class, Shahpur.
2. Brief facts of the case are that respondent No. 1 purchased land measuring 2.8 kanals out of Khewat No. 56 as per register Haqdaran Zameen for the year 1986-87, vide mutation No, 331, attested on 30.7.1988, for consideration of Rs. 70,000/- . The petitioners filed a suit on 24.6.1989 for pre-emption of sale in the Court of Civil Judge at Shahpur on the ground that they were co-sharer and contiguous owners. The suit was contested. Written statement was filed. Issues were framed.
Witnesses were examined. 0n 14.7.1990 respondent No. 1 moved an application for dismissal of the suit/rejection of the plaint on the ground that in view of the decision of the Shariat Appellate Bench of the Supreme Court there was no pre-emption law and the suit could not proceed. The learned Civil Judge dismissed the suit of the petitioners on 28.7.1990. Meanwhile, the Punjab Pre-emption Ordinance XVIH of 1990 was enforced so the petitioners filed an application on 30.9.1990 for revival of the suit in view of Section 36 of the Ordinance. This application was contested but the suit was revived by the learned Trial Court vide order dated 13.11.1990. Respondent No. 1 filed a revision petition against the order dated 13.11.1990 of the Civil Judge before the Additional District Judge who accepted the same, set aside the order dated 13.11.1990 and rejected the application vide order dated 2.3.1991. This order has been challenged in the present writ petition.
3. The learned counsel for the petitioners argued that in fact Revisional Court has misinterpreted and misconstrued the provisions of Section 1(3) and Section 36 of Ordinance XVIH of 1990.
According to him, the period of 60 days had to be counted for the purposes of application seeking revival of the suit from the date of commencement of the Ordinance No. XVIH of 1990 and not from the date the Ordinance was to take effect by virtue of Section 13 of the Ordinance and therefore the applicatioh filed on 30.9.1990 was well within time.
4. I have given my conscious consideration to the facts of the case and the provisions of the Punjab Pre-emption Ordinance, 1990 (Ordinance No. XVIH of 1990^. Admittedly, the respondent purchased the land in dispute vide mutation No. 331, dated 30.7.1988. The suit was filed on 24.6.1989. The Government of the Punjab promulgated the law on the subject of pre-emption, i.e. The Punjab Pre- emption Ordinance, 1990 (Ordinance No. V of 1990) on 29th March, 1990, and since then, the Ordinances promulgated one after the other, on the expiry of the period prescribed by Article 128 of the Constitution are:-
(i) The Punjab Pre-emption Ordinance, 1990 (Ordinance XII of 1990, Gazette, Extra-ordinary, 29th May, 1990).
(ii) The Punjab Pre-emption Ordinance, 1990 (Ordinance XVIH of 1990, Gazette, Extra-ordinary, 27th August* 1990).
(iii) The Punjab Pre-emption (Amendment) Ordinance, 1990 (Ordinance XXI of 1990, amending sub- section (2) of Section 36), the words 'one year' substituted for the words two hundred forty days.
(iv) The Punjab Pre-emption Ordinance, 1990 (Ordinance XVII of 1990, Gazette, Extra-ordinary, 26th November, 1990).
Ordinances at Nos. (i), (ii) and (iv) came into force respectively on the date on which the earlier Ordinance stood repealed under Section 1 28 of the Constitution.
5. Another feature worth noticing is that the additional provision was introduced by adding Section 36 to Ordinance No. XVIH. The two Ordinances earlier brought on the Statute contain only 35 Sections. The new Section 36 reads as under:- "36(1) Notwithstanding anything in any other law for the time being in force, all the decrees, judgments or ing the suits of pre-emption, instituted or pending during the period from lst August, 1986, and 28th March, 1990, in which the right of pre-emption was claimed as is available under this Ordinance, shall [Vol.XXr Allah Bakhsh V. Ghulam Muhammad C.C. 69 (Abdul Shakoor Paracha, J.) be of no legal effect, and such suits, on an application made by the aggrieved person within sixty days of the commencement of this Ordinance, shall subject to sub- section (2), be decided afresh according to the w provisions thereof.
(2) Notwithstanding anything in Sections 13 and 31 in respect of the suits mentioned in sub-section
(1) the period of limitation shall be two hundred and forty days and it shall be sufficient if the pre- emptor establishes that he had made 'Talb-i-Ishhad' in the presence of two truthful witnesses." it is pertinent to note that by Ordinance No. XXI of 1990 figures '240' days in sub-section (2) of Section 36 were substituted with the words 'one year' and the amending provision came into force from the date of enforcement of the Ordinance No. XVIH of 1990. The question which requires determination is whether the decree passed by the Court dismissing the suit is of no legal effect in view of the provisions contained in Section 36 of the Ordinance. The suits which are dismissed are liable to be revived subject to the provisions of sub-section (2) and are to be tried afresh in accordance with law. The learned Additional District Judge while accepting the revision petition concluded:- "In view of Article 128 of the Constitution of Pakistan, the Ordinance issued by the Governor will automatically stand repealed after the expiry of three months from its promulgation, if it is not presented before the Provincial Assembly. The Ordinance issued on 28.3,1990 was not presented before the Provincial Assembly of the continuance of original Ordinance XII of 1990 this Ordinance XVlV of 1990 was promulgated, In Section 3 of this Ordinance it has clearly been laid down that it shall come into force at once and shall be deemed to take effect on the day the Punjab Pre- emption Ordinance
(12) of 1990, stand repealed u/S. 128 of the Constitution except Sections 27 and 29 which shall be deemed to have taken effect on and from 29th March, 1990." if the Petitioner: Zahid Hussain Khan, Advocate.
For the Respondents: Nemo.
Date of hearing: 19th January, 2001.
MAULVI ANWARUL HAQ, J. -- On 27.10.1987 the petitioner filed a suit against the respondents, In the plaint it was stated that the predecessor-in-interest of the respondents mortgaged the suit land in favour of one Muhammad Ramzan vide mutation No. 348 attested on 5.6.1912. These mortgagee rights were sold to Ahmad Khan and Muhammad Khan vide mutation No. 373 attested on 25.3.1927 who sold the same to his father vide mutation No. 604 attested on 4.6.1931. It was alleged in the plaint that since the respondents have not redeemed the land within the time prescribed by law the petitioner has become the owner of the land and be declared as such, In their written statement the respondents took the plea that the limitation for redemption has not expired and in any event they are in possession of the suit land and that Section 28 of the Limitation Act, 1 908 is not attracted. Issues were framed. Evidence of the parties was recorded. The learned Trial Court decreed the suit vide judgment and decree dated 15.4.1989. Feeling aggrieved the respondents filed a first appeal which was heard by a learned Additional District Judge, Gujrat who allowed the same and dismissed the suit of the petitioner on 8.11.1989.
2. Learned counsel for the petitioner argues with reference to the case of Muhammad Zaman and 4 others Vs. Sikandar Khan and 5 others (PLJ 1991 Revenue 1) that the subsequent mutation would not restart the period of limitation and that the learned Courts below have misread the evidence on record. No one has turned up for the respondents.
3. I have gone through the record. To my mind the subsequent sale of mortgagee rights did constitute acknowledgment which have a fresh start to the period of limitation. The last sale was made on 4.6.1931 and the suit was definitely premature on the said ground on 27.10.1987.
[Vol.XXI Muhammad Rashid Ahmed V. Muhammad Siddique S.C. 113 (Iftikhar Muhammad Chaudhry, J.)
"(i) Bashir Ahmad petition Writer stated on 7.1.1 993 as PW 1 that both the brothers i.e. Parties to the suit were known to him for the last 20/25 years. Computing back from 7.1.1993 and the date of the alleged agreement i. e. 14.11.1968 it cannot be held by the stretch of any imagination that his statement in this regard can be termed to be correct especially when there is nothing on record that both the brothers who were residents of Chak No. 285/GB visited him at the place of his business at Toba Tek Singh in connection with other matters of litigation etc."
"An important fact to be mentioned at this stage is that Lai (PW 2), the marginal witness on agreement Ex.P 1, is resident of Chak No. 263/GB while both the contesting brothers are the residents of Chak No. 285/GB where the disputed property is situated. Even though Raja Muhammad Ashraf Lumberdar claimed to have got ' incepted compromise between both the brothers on the basis of which alleged agreement was executed, he was not present at the time of the execution of Ex.P 1."
"No independent person from village Chak No. 285/GB has appeared in favour of Muhammad Rashid Ahmad and adverse presumption in the matter is drawn against him."
"(ii) Muhammad Rashid Ahmad stated that he land in dispute was got allotted by him in the name of his younger brother Muhammad Siddique for the reason that the land could be allotted in the name of one of the members of the family. Thee is no explanation as to why he (Muhammad Rashid Ahmad) did not get allotted the land in his on. Name, even though he was elder fo his brother Muhammad Siddique who according to him was minor at the alleged time of the allotment of the land. The absence of the motive in this respect has gone to the root of the stand of Muhammad Rashid Ahmad in the matter and the same has fallen on the ground like a house of cards."
(iii) Muhammad Rashid Ahmad appeared as PW 4 on 15.12.1993 and stated that he had to deposit an amount of Rs. 8000/- as the total price of the land was Rs. 1 6200/- and that he deposited the aforesaid amount. However, he has not produced any evidence oral or documentary except his solitary statement about the payment of Rs. 8000/- towards the installments of the suit property. He has also not produced evidence to make out that he made culturable the suit property by spending the amount or through the dint of his hard labour. The documentary evidence produced by him and his contesting brother has not supported him as he has not been mentioned therein as having any connection with the suit property on the basis of agreement Ex.P 1. A pertinent feature of the matter is that on the basis of alleged agreement Ex.P1 both the bothers did not go to the Halqa Patwari to get entered the aforesaid fact in his daily diary, which could be a valuable piece of evidence in favour of Muhammad Rashid Ahmed. This aspect of the matter has also falsified his stand.
(iv) The fact of the matter is that two acres of land is under the possession of Muhammad Rashid Ahmed, which according to his brother Muhammad Siddique is under his unauthorized possession.
As expressed above about the delivery of the possession of any portion of the landed property by Muhammad Siddique in favour of Muhammad Rashid Ahmad on the basis of Ex.P 1, no intimation was given to Halqa Patwari and got entered in the daily diary and it can safely be expressed and held that Muhammad .Rashid Ahmad did not obtain the possession of the suit property in his alleged in dependent right and the contention of Muhammad Siddique is correct that the possession of his brother Muhammad Rashid Ahmed is un-authorized and illegal to the extent of two acres of land.
(v) The contention of Muhammad Rashid Ahmad is that he is entitled to half of the property allotted in the name of IVol.XXI Muhammad Rashid Ahmed V. Muhammad Siddique S.C. 115 (Iftikhar Muhammad Chaudhry, J.j his brother Muhammad Siddique on the basis of an agreement Ex.P 1 brought into black and white on 14.11.1968, but I hold the view that about the performance of the conditions mentioned in Ex.P 1 he has not produced any evidence and has failed to establish the compliance of the same, this being the position even if Ex.P 1 is held to be an agreement to transfer the land the conditions mentioned therein have not been proved to have been fulfilled and discretionary relief of performance of agreement of sale cannot be granted to him.
12. The examination of above reasons one by one with reference to their substance suggests that none of them individually or collectively constitute reasons for exercising revisional jurisdiction under section 115 CPC relating to passing orders/decrees by the appellate/Trial Court to be termed as without jurisdiction or in excess of jurisdiction or misreading or non-reading of evidence etc. Surprisingly learned Judge has even travelled outside of the pale of provisions of Article 75 or 76 of Qanun-e-Shahadat Order 1984 which spell out procedure for proving a document through primary or secondary evidence. To our consideration there is no mandate of law to hold that testimony of a witness can be disbelieved merely for the reason that witness has failed to explain that in which connection he visited the Petition Writer for executing the agreement and due to this reason, version of the petition writer marking presence of parties before him for execution of agreement was held to be inadmissible. Factually such observations were made to show that Agreement Ex.P/1 was doubtful considerably . That its contents were duly proved accordingly to law. As such, we are of the opinion that learned High Court had illegally interfered with the findings of two Courts below which were in favour of appellant in purported exercise of its revisional jurisdiction on artificial and whimsical grounds, it is interesting to note that relief has been granted to respondent on the ground which he himself and never pleaded either by submitting his written statement or during the proceedings knowing that on such flimsy grounds appellant cannot be non-suited on legal plane. We regret to observe that learned Judge in the Chambers of High Court (as the then was) omitted to consider the plea of respondent raised by him in written statement and supplemented during trial.
13. A perusal of the judgment, of District Judge Toba Tek Singh dated 16.12.1997 would indicate that in the course of arguments before him learned counsel appearing for appellant submitted that during pendency of appeal (appellant Muhammad Siddique) in collusion with Riazul Hasan Alvi has got prepared a rule of Court in f/o Anwar Sultana wife of Riaz Hassan Alvi on 27.5.1 '995 without disclosing pendency of appeals against which the respondent (Muhammad Rasheed) as filed an application under section 12(2) CPC which was pending in Lower Court. The appellant (Muhammad Siddique) has tried to frustrate the impugned judgment and decree". As it has been noted hereinabove that while granting leave to appeal the impugned order da ted 19.4.2000 was suspended and with regard to possession of appellant over the land in dispute order of maintaining status qua was passed on 24.7.2000. Subsequent thereto appellant filed Criminal Original No. 15-L of 2000 alleging violation of the order of sftatus-quo against respondent Nos. 1 and 7 others with the averments that one Mr. Riazul Hasan Alvi son of Muhammad Hussain, Caste Alvi, resident of Chak No. 235-GB, who was then District and Sessions Judge and posted as Judge Anti- Terrorism Court at Multan was feeding respondent Muhammad Siddique and all was being done with his help and the respondents in contempt application namely Nawaz, Ashiq and Fateh Patwari who were his personal workers and were providing aid to said Muhammad Siddique at the instance of Mr. Alivi. Mr. Alvi was in the habit of getting properties and transferring same in the name of his wife Munayvar Sultana, it was further stated that land in dispute was earlier transferred by respondent Siddique in the name of Munawar Sultana (Mr. Alvi's wife) which was later on cancelled". Keeping in view these facts the record of application under section 12(2) CPC was summoned from the Court of Mr. Aftab Ahmad Rai Civil Judge, Toba Tek Singh. A perusal whereof prima facie supports contentions of appellant and meddling of Mr: Riaz Hasan Alvi District and Sessions Judge in judicial matters cannot be overlooked. As such possibility of his making efforts for getting the case decided in favour of respondent because allegedly -the property was purchased from Muhammad Siddique respondent in the name of his wife (Anwar Sultana) cannot be over-rules.
CRIMINAL ORIGINAL NO. 15-L/2000:- We are prima facie [Vol.XXI Javed Iqbal Khan V. Federal Employees Benevolent and Group Insurance Funds (Nazim Hussain Siddiqul, J.) satisfied that respondent Muhammad Siddique with the collusion of M/s. Nawaz, Ashiq and Fateh as violated the order of status- quo allegedly with the assistance and connivance of Mr. Riazul Hasan Alvi whose interest in this property can be seen while going through the application for contempt of Court as well as File No. 56-6/1995 pending in the Court of Mr. Aftab Ahmad Rai Civil Judge Toba Tek Singh. Therefor, office is directed to issue show cause notice to Muhammad Siddique and others to appear in person and explain as to why proceedings for contempt of Court under Article 204 of the Constitution of Islamic Republic of Pakistan read with sections 3/4 of Contempt of Courts Act, 1976 be not initiated against them. A separate notice be also issued to Mr. Riazul Hasan Alvi alongwith copy of this judgment through Registrar of Lahore High Court to explain his position in respect of allegations which have been imputed against him in contempt application either appearing in person or through duly authorized representative.
For the foregoing reasons appeals are allowed with costs. The impugned judgment dated 19.4.2000 is set aside as a result whereof judgments/decree dated 16.12.1997 passed by Di.Stt. Judge T.T. Singh is restored. Record of the case be returned after retaining photocopies of File No. 56-6 of 1995 under section 12(2) CPC.
Criminal Original Petition No. 1 5-L/2000 is adjourned to a date in office.