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Further Regular Appeal No. 138 of 1961, decided on 9th July 1965.

, S. 11‑Unregistered document affecting property worth more than Rs. 100‑No material on record to show that document was inconsistent with any fact in issue‑Such document, held, inadmissible in evidence‑Registration Act (XVI of I9OS), Ss. 17 & 49.

Sheo Bandban v. Sahdeo Prasad A I R 1930 All. 130 distinguished.

Abdus Sattar v. Yunus Malik P L D 1961 Dacca 512 ref.

S. 12‑Co‑sharer---No evidence, except unregistered sale‑deed, to show that prospective pre‑emptor was in possession of any portion of suit land as owner‑Unregistered document being in admissible in evidence does not confer any title on such person to claim pre‑emption of suit land‑Registration Act (XYI of 1908), S. 49.

Khan Abdul Latif Khan for Appellant.

Mir 4hmad Shah for Respondents.

Dates of hearing: 7th and 14th June 1965.

Briefly, the facts giving rise to these two Regular Second Appeals Nos. 138/61 and 139/61, are that on the basis of mutation No. 2073, attested on 14‑1‑60, Mst. Zari Posh sold land measur ing 11 kanals 6 marlas 6 sirsais, out of Khasra Nos. 340 and 343, situate in Khunda Maira, Tahsil Swabi, District Mardan, to Ghulam Jan and Ataullah residents of the same village, for the ostensible sum of Rs. 880. This sale gave rise to two pre‑emption suits. Suit No. 102/1 was brought by Qudratullah, son of Sharifullah, resident of Zaida, alleging that the disputed property had been sold for Rs. 300, but the inflated sum of Rs. 880 was fraudulently and fictitiously entered in the sale mutation with a view to ward off a pre‑emption suit. He based his superior right of pre‑emption on being a co‑sharer in the suit Khata and being the owner of the contiguous land, whereas the vendees lacked these qualifications. Ajab Khan, son of Najibullah, resident of Khunda, also brought a suit for possession by pre‑emption of the suit land, which was registered at No. 29/1 of 1961, in the Court of the Civil Judge, Swabi, on 23‑1‑61. He also urged that the suit land was sold for Rs. 300 and the sum of Rs. 880 was fraudulently and fictitiously entered in the sale mutation. Claiming his superior right of pre‑emption, he urged that he was a co‑sharer in the suit Khata. The two suits were consolidated.

2. The trial Judge made Qudratullah rival pre‑emptor, a defendant in Suit No. 29/1 and impleaded Ajab Khan as a defendant in Suit No. 102/1. The two rival pre‑emptors also denied each other's pre‑emption right.

3. The defendant‑vendees while denying the superior right of pre‑emption of Qudratullah and Ajab Khan, alleged that they had purchased the suit land for a sum of Rs. 880, which was fixed in good faith and paid.

4. The following issues were framed:‑---

(1) Which of the rival pre‑emptors has got superior right of pre‑emption inter se and as against the vendees

(2) Was the sum of Rs. 880 fixed in good faith or paid as sale consideration

(3) What is the market value

(4) Relief.

After recording the evidence adduced by the parties, the learned trial Judge came to the conclusion that Ajab Khan pre‑emptor find the defendant‑vendees were not co‑sharers in the suit Khata, while Qudratullah pre‑emptor was a co‑sharer in it. On issues 2 and 3, he found that the payment of Rs. 880 as sale consideration had not been established, and the market value of the suit property according to five years average, prepared by the Patwari, amounted to Rs. 791. As a result of his above‑mentioned find ings, the learned trial Judge, by his order, dated 28‑3‑61, passed a decree for possession by pre‑emption on payment of Rs. 791 in favour of Qudratullah in Suit No. 102/1 of 1960, and dismissed. the suit of Ajab Khan. He, however, left the parties to bear their own costs.

5. Two appeals were preferred by Ajab Khan against the above‑mentioned order, one was against the order of the learned trial Judge, dismissing his suit and the other was preferred against the same order, passing a decree for, possession by pre emption of the suit land in favour of Qudratullah. The two appeals were heard by the learned Additional District Judge, Mardan, who came to the conclusion that Ajab Khan was an owner in Khasra Nos. 340 and 343 in dispute, while Qudratullah had no interest in the suit Khasra Nos. In view of his above mentioned findings, by his order, dated 22‑7‑61, he accepted the appeals, set aside the judgments and decrees of the trial Judge in both the suits and passed a decree for possession by pre‑emption of the suit land in favour of Ajab Khan on payment of Rs. 791, and dismissed the suit of Qudratullah. He also left the parties to bear their own costs Qudratullah has preferred further two appeals, one against the order of the learned Additional District Judge dismissing his appeal and the other against the same order, accepting the appeal of Ajab Khan, and I propose to dispose of both these appeals by one judgment; as they arise from one and the same transaction.

6. The only question requiring consideration in this case, is issue No. 1, so far as the vendees are concerned, the two Courts have held that they had no right to resist the suit of the pre emptors.

7. Now the point would be as to which of the rival pre‑emptors has got a superior right of pre‑emption inter se.

8. Originally, one Musa was the owner of the land comprise in Khasra Nos. 340 and 343. A portion of the land comprised in Khasra No. 340 was mortgaged by Musa to one Said Zahir for Rs. 100. The latter sold his above‑mentioned mortgagee rights to Ajab Khan respondent. Subsequently, Musa sold the equity, of redemption out of land comprised in Khasra No. 340 and the unencumbered portion of Khasra No. 343 to Sharifullah on the basis of a registered sale‑deed, dated 19‑7‑52. Sharifullah died in 1954, and was survived by two sons Qudratullah appellant and Rafiullah; and thus his share out of the land hearing Khasra Nos. 340 and 343 was inherited by his two sons jointly in equal shares, who became co‑sharers in these Khasra numbers and Qudratullah has apparently a superior right of pre‑emption as against Ajab Khan rival pre‑emptor, but the latter, however, claims to have purchased the share of Qudratullah and Rafiullah out of the two Khasra numbers in suit. In support of this contention, he relied upon an unregistered sale‑deed alleged to have been executed by Qudratullah and his brother Rafiullah on 16‑8‑54, true copy of which, is Exh. D. W. 1/2, on the basis of which they are alleged to have sold their share out of the said two Khasra numbers for Rs. 1,300. On the same day, a writing, copy Exh. D.W. 1/3 was made on the back of the original sale deed executed by Musa in favour of Sharifullah. On the basis of these two writings, it was contended that since Ajab Khan had purchased the share of Qudratullah and Rafiullah out of the two Khasra numbers in suit, he had a superior right of pre‑emption as against Qudratullah as the latter had divested himself of his share out of the two Khasra numbers in dispute and was no longer a co‑sharer in it.

9. The sale‑deed, dated 16‑8‑54, copy Exh. D. W. 1/2 and the writing on the original sale‑deed copy Exh. D.W. 1/3 are both unregistered, and are not admissible in evidence. The learned Additional District Judge while relying on A I R 1930 All. 130, admitted the above‑mentioned documents in evidence on the ground that they were inconsistent with the fact in issue. There is, however, no material on the record to show the inconsistency of these two documents with the point at issue. In the above mentioned authority, their Lordships observed:

"But we consider that the document was correctly admitted under section 11 of the Evidence Act because it is inconsistent with the facts in issue, i.e., with the Chithas relied on by the plaintiff'."

Under section 11 of the Evidence Act, an unregistered document is admissible in evidence if it is inconsistent with any fact in issue, but since there is no material on the record to show that these documents were inconsistent with a fact in issue, I hold that section 11 of the Evidence Act and the above‑mentioned autho rity are not applicable. Reliance was placed on Abdus Sattar v. Yunus Malik (P L D 1961 Dacca 512'), where a reconveyance was not on the basis of a registered document, but was sought to be effected only by an endorsement on the back of the original kabala for sale. It was held that it could neither be admissible in evidence nor could be treated as reconveyance. In these circumstances, the two docu ments relied upon by Ajab Khan respondent on the basis of which he required property for more than Rs. 100 are inadmissible in evidence for want of registration.

10. Learned counsel for the respondents urged that even if the documents in question were inadmissible in evidence for want of registration, yet they could be looked into for the collateral purpose of showing the nature of possession of the respondent over the suit land, as a vendee. The disputed land bears Khasra Nos. 340 and 343. Out of these two Khasra numbers, Ajab Khan respondent is shown in possession of the land comprised in Khasra No. 340 and he is not shown in possession of the land bearing Khasra No. 343, but it is contended that since both the Khasra numbers were acquired on the transaction by the respondent, his possession over Khasra No. 340 indicated that he was in possession on the basis of the transfer deeds in his favour. It is admitted that the respondent Ajab Khan is in possession of a portion out of Khasra No. 340, but this possession was taken by him after he had purchased the mortgagee rights from Said Zahir, and so he entered into possession of this land as a mortgagee before the sale in his favour. There is no material on the record to show that he had taken possession of this Khasra number as a vendee under the sale, and so there is no basis for the contention of the learned counsel for the respondent that he was in possession as a vendee. Ajab Khan. respondent is not shown in possession of any portion of Khasra No. 343, in the Revenue Record. He failed to produce any convincing evidence to show that the entries made to the Revenue Record were erroneous, and so it follows that he never remained in possession of any portion 6 of this Khasra number, and therefore, the question of looking into these documents (Exhs. D.W. 1/2 and D.W. 1/3) for the collateral purpose of showing the nature of his possession in respect of Khasra No. 343 does not arise. The two documents relied upon by Ajab Khan respondent are inadmissible in evidence, which do not confer any title on him, and thus he has no share in the disputed Khasra numbers. Qudratullah appel lant being a co‑sharer in the suit Khasra numbers, has superior right of pre‑emption as against Ajab Khan, I, therefore, except this appeal, set aside the judgment and decree of the learned Additional District Judge, restore those of the learned trial Judge, pass a decree for possession by pre‑emption of the suit land in favour of Qudratullah appellant on payment of Rs. 791 and dismiss the suit of Ajab Khan with costs.

S. Q. Appeal accepted.

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