' The facts are that the land in question was transferred by sale to the respondents on 20-2-1974 for an ostensible sale price Rs,2,00,000. The petitioner pre-empted the said sale claiming superior right of preemption on the basis of being collateral of the vendor. It was asserted that the sale price was Rs,1,55,000 and not Rs,2,00,000 as mentioned in the mutation.
2. The vendee/defendants resisted the suit and inter alia contended that the suit was barred by time; that the suit-land was not pre-emptible; that the suit was collusive and for the benefit of the vendor and that the plaintiff had no superior right of pre-emption. From the pleadings of the parties several issues were framed but for the purpose of the instant regular second appeal, the material issues are Issues Nos.1 and 4 which are reproduced as under:--
(1) Whether the suit is barred by time?
(4) Whether the suit is collusive and for the benefit of the vendor, if so, with what effect?
3. The learned trial Court, in view of the evidence recorded before it found that the suit was within time and that the period of limitation was liable to be reckoned from the date of sanctioning of the mutation i,e, 20-2-1974 and not prior to this date. Upon Issue No,4 it was held that the vendees have failed to adduce independent and sufficient evidence in support of this issue It was held that despite the plaintiff being a minor and even if his father (one of the vendors) was financing the litigation the suit would not be collusive. Holding that the plaintiff had a superior right of pre- emption, the suit was decreed on payment of Rs,2,00,000 vide judgment and decree dated 6-12- 1980. The respondents preferred an appeal which was accepted on 19-2-1987 and after setting aside the judgment and decree of pre-emption, the case was remanded to the trial Court for fresh decision.
4. The plaintiff/petitioner filed F.A.O. No,67 of 1987 against the abovementioned order of remand which was accepted by this Court vide judgment dated 1-2-1993. Regarding the determination and payment of court-fee it was observed as under:-- "The controversy relating to deficiency of court-fee agitated before the Appellate Court could have been decided on the basis of chart of net profits (Exh.D.11) produced by respondents/defendants which pertained to the two crops preceding the institution of the suit. The appellant had no objection to pay court-fee assessed on the basis of the said chart and was willing even to pay the maximum court-fee of Rs,15,000. Therefore, there was no necessity to remand the case to the trial Court for further inquiry qua the question of court-fee. After determining the court-fee on the basis of the chart of net profits Exh.D.11, the Appellate Court should have directed the appellant/plaintiff to make good deficiency of court-fee. In the like manner, the respondents who were appellants before the learned Additional District Judge could have been required to make good deficiency of court-fee on the memorandum of appeal. The argument of the respondent's counsel that part of the disputed land in village-site or Abadi Deh and had to be assessed on the basis of market value, has no force. The entries of the Jamabandi for the years 1971-1972 (Exh.D.1) show that the vendors owned Square No,15 out of which Killas Nos.1 to 25 were under cultivation while Killas Nos.26 and 27 were Ghair Mumkan Makan. The Ghair Mumkan Makans are part of the agricultural land though assigned Ihatas Nos.15 and 51. Therefore, the said Ihatas are not to be separately assessed as alleged village sites for purposes of determination of the court-fee."
5. As regards the application for amendment of the written statement it was held that the same ought to have been decided by the First Appellate Court and that there was no legal justification to remand the case to the trial Court for the said purpose.
6. Resultantly, the F.A.O. Was accepted and the order of remand dated 19-2-1987 passed by the Appellate Court was set aside and the case was remitted to the Appellate Court to decide the question of court-fee in accordance with law and also to decide the application for amendment of the written statement on merits.
7. Upon remand the learned Appellate Court considered the application for amendment of the written statement and proceeded to dismiss the said application. As regards the court-fee, the appellant/plaintiff was directed to make up the deficiency of court-fee amounting to Rs,2,070 before 22-9-1994 failing which the memo. Of appeal shall stand rejected under the provisions of Order 7, rule 11, C.P.C. Regarding the merits of the case, the learned Appellate Court found that the suit for pre-emption filed by Naveed Ahmad minor son of Qamar Mohi-ud-Din (one of the vendors) was in fact launched by the said Qamar Mohi-ud-Din for his own benefit and that the entire expenditure was also borne by the said father of the minor plaintiff. It was thus held 'that the suit was collusive between the vendor and the minor pre-emptor. Upon the question of limitation, the First Appellate Court held that possession under the sale was transferred much before attestation of mutation on 20-2-1974 and that the suit filed on 19-2-1975 was barred by time.
8. Resultantly, the appeal was accepted on 8-9-1994 and the judgment and decree dated 6-12- 1980 was set aside and the suit for preemption stood dismissed.
9. Ch. Khurshid Ahmad, Advocate, the learned counsel for the appellant has assailed the findings of the learned First Appellate Court upon Issue No,1 regarding limitation and Issue No,4 whereupon it was held that the suit was collusive between the pre-emptor and one of the vendors. The learned counsel for the appellant contended that although the appellant/plaintiff was the minor son of one of the vendors this fact alone was not sufficient to prove the collusion between the pre-emptor and the vendor. According to him the mere fact that the suit was filed by a minor pre-emptor and even though the litigation was financed by the father of the minor plaintiff who himself was the vendor, it would not render the suit for pre-emption to be collusive between the pre-emptor and the vendor.
He further contended that there cannot be any question of collusion as a minor cannot enter into any collusive transaction being incapacitated to enter into any contract whatsoever. He placed reliance upon Imam and 7 others v. Saifur Rehman PLD 1984 SC 415 and Muhammad Abdullah v.
Abdullah and others PLD 1977 Azad J&K 69.
10. Upon the question of limitation it was contended that the mutation was attested on 20-2-1974 and the suit filed on 19-2-1975 was well within time. According to him the sale was made out of a joint Khata and thus the subject-matter 'of sale was not susceptible of actual physical possession, and therefore, no period of limitation, could commence from the date prior to the sale mutation. He also submitted that as the suit-land was in possession of a tenant, for this reason also actual physical possession could not be transferred under the sale. The learned counsel relied upon Bashir Ahmad v. Mst. Rasul Bibi and 11 others 1999 SCM R 897 to contend that in such circumstances, where the subject land is not susceptible of actual physical possession, no period of limitation can be reckoned from the date of such alleged possession under the sale.
11. On the other hand, S.M. Tayyib, Advocate for the respondent contended that according to RoznaMcha Waqiati Exh.D.4 the possession was actually delivered much before the attestation of sale mutation. According to him the Roznamcha Waqiati was proved through the statements of D.W.4 and D.W.5 who had entered the factum of possession in the Roznamcha Waqiati. Reliance was placed upon 1988 M LD 793 in R.S.A. No,521 of 1978 to contend that evidentiary value is attached to the entries in Roznamcha Waqiati. He elaborated that N.O.C. Under section 19 of the Colonization of Government Lands Act, 1912 (Exh.D.7) was obtained on 13-11-1973 and Roznamcha Waqiati Exh.D.4 was prepared on 9-1-1974. Sale consideration was paid vide Exh.D.1, Exh.D.2 and Exh.D.3 on 13-9- 1972, 11-10-1973 and .22-1-1974 respectively. According to him the suit filed on 19-2-1975 was patently barred by time.
12. Arguments have been heard. Record perused.
13. According to the record the agreement to sell pertaining to the suit-land was executed by Qamar'Mohf-ud-Din on 13-9-1972. The said Qamar Mohi-ud-Din executed the sale agreement not only on his own behalf but also as general attorney of the other co-vendors. The said sale agreement (Exh.D.1) was signed by Khan Bahadur, Abdul Rauf Khan D.W.6 as its marginal witness.
This marginal witness appeared as a witness for the defence and categorically stated that the suit was got filed by Qamar Mohi-ud-Din through his son Naveed Ahmad (appellant/preemptor) for his own benefit. This was also supported by the statement of Naseer Ahmad who appeared as D..W.8.
The suit for pre-emption was filed by the appellant through his mother as next friend under the circumstance, it was necessary for the said next friend namely Mst. Riaz Begum to have appeared as her own witness to support the plea of the pre-emptor. Instead one Aftab Ahmad appeared as P.W.2 as attorney of Mst. Riaz Begum. A close examination of the statement of this witness would show that he was ignorant of the facts of the case in all its material detail.
14. The learned First Appellate Court closely examined the record and came to the conclusion that the suit for pre-emption was in fact manoeuvred by Qamar Mohi-ud-Diti for his own benefit. If it is held that the suit for pre-emption filed by the minor appellant was not for his own benefit but was in the interest of vendor himself, the pre-emption suit would not be a bona fide exercise of the right by a pre-emptor but would be a fraudulent act. That it could not be termed as a conscious act of collusion by a minor would not make the act any less fraudulent on behalf of the vendor who was instrumental in having the suit filed through his minor son. There is sufficient material on the record to warrant this conclusion. As far as, the question of limitation is concerned suffice it to say that N.O.C. Under section 19 of the Colonization of Government Lands Act, 1912 was issued on 13-11-1973, the agreement to sell was executed on 13-9-1972 the receipt for part payment of sale consideration was executed on 11-10-1973 and the Roznamcha Waqiati regarding transfer of possession was entered on 9-1-1974. The transfer of possession under the sale having thus been established prior to the attestation of the sale mutation on 20-2-1974, the suit filed on 19-2-1975 was patently barred by time.
15. For what has been discussed above, the learned counsel for the appellant has not been able to persuade this Court to take a view different from what has been expressed by the learned Appellate Court in its impugned judgment and decree dated 8-9-1994.
16. Before parting with this judgment it is noticed that the appellant has also failed to making up the deficiency in the court-fee despite having been afforded an opportunity to do the same by the learned Appellate Court.
17. For all that is stated above there is no merit in this regular second appeal which is hereby dismissed leaving the parties to bear their own costs.