' This judgment will dispose of Civil Revision No, 178 of 1972/Lahore and Civil Revision No, 2 of 1973/BWP as common questions of law and facts are involved therein.
2. Pir Bakhsh petitioner purchased 196 kanals of land in dispute situated in Bismillahpur, Tehsil and District Rahim Yar Khan from Mst. Qaisar Jahan for a sum of Rs, 25,000 by a registered sale deed dated the 4th August 1970. Budhoo respondent brought a suit for pre-emption on the ground of his being co-owner in the village and claimed pre-emption on payment of Rs, 12,000 or such other sum as the Court may determine. The plea of superior right of pre-emption was controverted by the defendant-petitioner on the ground that he himself was an owner in the village. Preliminary issue was, therefore, framed which was answered in favour of the plaintiff by the impugned order.
2. Hence this Revision Petition No, 178 of 1972.
3. Budhoo respondent relied upon the Jamabandi of 1966-67 in proof of his, ownership in the village. All Muhammad D. N. Appeared on behalf of the petitioner and proved Mutation No, 279 (Exh.
D. 4) dated the 29th June 1970 and Jamabandi Exh. D.
1. The Mutation Exh. D. 4 is of oral sale of property in favour of the petitioner. The case of the petitioner is that since he had purchased another property on the 29th June 1970 in the same village, he had an equal right of pre-emption and for this reason the suit of the plaintiff-respondent was liable to be dismissed. The learned trial Court refused to uphold this contention on the strength of Muhammad Bakhsh v. Ziaullah (1) and held that since section 54 of the Transfer of Property Act applied to the transaction an oral sale was not sufficient to provide the ownership of the petitioner.
It was later on discovered that the respondent had also become owner in the village by an oral sale evidenced by Mutation No,
22. The petitioner, therefore, submitted an application for amendment of the written statement in order to take up this plea but the same was dismissed.
Civil Revision No, 2 of 1973/BWP has been filed to challenge that order.
4. On account of the contentions of the parties being common in regard (1) PLD 1971 B J 42 to the applicability of section 54 of the Transfer of Property Act, the learned counsel for the petitioner did not contend that the purchase of property other than this suit property by the parties by an unregistered document or even orally but in a manner contrary to the provisions of section 54 of the Transfer of Property Act can vest any right of ownership in the property on the basis of which the pre-emptor may claim a superior or equal right of pre-emption. This question has in fact been decided in Muhammad Bakhsh v. Ziaullah. The argument of the learned counsel for the petitioner also is that no title can pass or any legal consequence can flow if the sale is not in accordance with the provisions of section 54 of the Transfer of Property Act. He only argued that this principle could apply only to a premotor and not to the defendant even if he bases his defence upon an oral sale.
The learned counsel did not produce any authority in support of his contention.
5. This argument has no force. Although the vendor may not be in a position to challenge the transfer made by him orally or by an unregistered document but just as a pre-emptor cannot succeed on the basis of ownership obtained by a sale in contravention of section 54 of the Transfer of Property Act, the Vander too cannot succeed in his plea that he had an equal A right of pre- emption unless he proves that he had acquired ownership by a valid sale in accordance with the above provisions. No distinction can be made on any principle between a pre-emptor and a vendee in this respect because the vendee also in order to dislodge the superior right of pre- emption of the plaintiff is claiming to be vested with a similar right of pre-emption o the date of purchase. Civil Revision No, 178 of 1972/Lahore is therefore, without force and is dismissed.
6. The learned counsel for the petitioner candidly conceded on my query that the respondent has purchased the property in the village more than 12 years before the suit. Even though the initial sale may be invalid the respondent has to be treated to have become owner by adverse possession after the expiry of the prescriptive period. The order refusing permission to amend the written statement is therefore, justifiable on this ground. Civil Revision No, 2 of 1973/BWP is also without force. I leave the parties to bear their own costs.