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Civil Revision No. 1759 of 1984. decided on 23rd October 1985

‑‑‑S. 30‑‑Pre‑emption suit‑‑ Limitation‑‑Vendee in his evidence admitted that possession of disputed land was acquired by him six months after attestation of mutation of sale‑ ‑Pre‑emptor's suit which was instituted within one year from date of attestation of mutation of sale, held, was not barred by time.

P L D 1981 S C 591 ref.

‑‑‑S. 15‑‑Evidence Act (I of 1872), S. 115‑‑Pre‑emption suit‑‑Waiver‑ Plea of‑‑Presumption‑‑Pre‑emptor could only be deprived of his legal right to pre‑empt sale, if it was established by cogent evidence that he had intentionally relinquished his said right‑‑Vendee's statement that one of pre‑emptors had shown his inability to purchase land for want of funds, not supported by any evidence‑‑Plea of waiver raised by vendee, held, would not merit consideration as evidence produced by vendee did not come up to required standard.

Munir Ahmad Bhatti for Petitioner.

Awan Muhammad Hanif for Respondents.

Date of hearing: 23rd October, 1985.

Subhan Ali petitioner has challenged judgments and decrees, dated 16‑4‑1983 and 10‑9‑1984 passed by Civil Judge, Shakargarh and Additional District Judge, Sialkot respectively whereby respondents' suit for possession through pre‑emption of land measuring 79 Kanals and 4 Marlas situated in village Tehra Katlan, Tehsil Shakargarh, District Sialkot filed against the petitioners was decreed on payment of Rs.30,000 as pre‑emption money. The aforementioned suit was instituted by the respondent on 22‑12‑1975 to pre‑empt the sale of the disputed land effected by means of Mutation No. 13, dated 23‑12‑1974 on the plea that they were owners in the estate and were also co‑sharers in the Khata out of which the suit land was sold. The respondents controverted the payment of Rs.30,000 as price of the land in question by the petitioner as according to them, the land had been purchased only for Rs.10,000 which was also its market value. The petitioner contested the suit and controverted the allegations of the respondents. He pleaded that the respondents' suit was barred by time as they had acquired possession of the land from the vendor on 26‑9‑1974 after payment of Rs.30,000 as price of the land and that Mutation No. 13 was sanctioned on 23‑12‑1974 merely to give effect to the aforementioned oral sale. The petitioner further contended that the respondents had waived their right of pre‑emption as they had participated in the bargain of sale. In addition to the price of the land amounting to Rs.30,000, the petitioner claimed Rs.6,000 which according to him, he had incurred in effecting improvements on the land after the sale. Pleadings of the parties gave rise to the following issues:‑‑---

(1) Whether the plaintiffs have the superior right of pre‑emption O. P. P.

(2) Whether Rs.30,000 were fixed in good faith or actually paid O.P.D.

(3) If issue No. 2 is not proved, what was the market value of the suit land at the time of sale O.P. Part.

(4) Whether the suit of the plaintiffs is time‑barred O.P.D.

(5) Whether the suit of the plaintiff is bad for partial pre‑emption O. P. D.

(6) Whether the suit of the plaintiffs is wrongly valued for the purposes of cot5rt‑fee and jurisdiction. If so, what is the correct valuation O.P.D.

(7) Whether the plaintiffs have waived their right of pre‑emption O.P.D.

(8) Whether the defendant has made improvements to the extent of Rs.6,000 over the suit land O.P.D; and

(9) Relief.

2. Learned trial Court, after evaluating the evidence produced by the parties, decided issue No. 1 in respondents' favour and issues Nos, 4, 7 and 8 against the petitioner. As the respondents admitted the sale price of the land as stated in the mutation, issue No. 2 was found in favour of the petitioner while issue No. 3 was left undetermined. No finding was given under issues Nos. 5 and 6 as the petitioner did not press his objections which gave rise to these issues. As result of the above findings, the respondents' suit was decreed on payment of Rs.30,000 as pre‑emption money. The learned Additional District Judge, Sialkot, before whom findings of the learned trial Court under issues Nos. 4, 7 and 8 were assailed in appeal by the petitioner dismissed the appeal vide order, dated 10‑9‑1984. The petitioner has assailed the judgments and decrees of the Courts below through the present revision petition.

3. Learned counsel for the petitioner has submitted that the factum of sale of the suit land was reported to the Patwari on 26‑9‑1974 when report marked 'A' was recorded by him in the Roznamcha Waqiati. The vendor had stated in unequivocal terms that he had sold the land in dispute to the petitioner and had delivered its possession after receiving Rs.30,000 as the price of the land. According to the learned, counsel the attestation of mutation of the aforementioned sale No. 13 (Exh. P. 4) on 23‑12‑1974 was not relevant for determining the period of limitation for institution of suit to pre‑empt the sale of the suit land because the sale had been completed on 26‑9‑1974 on delivery of possession of the land by the vendor to the petitioner after receipt of its price. The respondents should have instituted the suit for possession of land through pre‑emption within one year from the date when possession was delivered to the petitioner under the sale in view of section 30 of the Punjab Pre‑emption Act, 1913, but as they had instituted the suit on 22‑12‑1975 after more than one year of the sale, it was barred by time. Learned counsel has relied on Sher Muhammad v. Rajada P L D 1981 S C 591 where it was held that when the factum of sale was reported to the Patwari by the vendors stating that possession of the land has also been transferred to the vendees and the entries of sale were made in the Roznamcha Waqiati, the fact that the mutation of sale was sanctioned after more than two years of the above report would not be relevant for determining the period of limitation as the pre‑emptor was bound to file the pre‑emption suit within one year from the date when the entry of sale was made in the Roznamcha Waqiati.

4. Learned counsel for the respondents, on the other hand, has pointed out that the disputed land was in possession of a tenant at the time of alleged oral sale and as such it did not admit physical possession for the purpose of limitation under section 30 of the Punjab Pre‑emption Act, 1913. The report marked 'A' in the Roznamcha regarding delivery of possession to the petitioner is factually incorrect, as is evident from the statement of Rasool Bakhsh D. W . 1 that possession of the land in dispute was delivered to the petitioner after the sale by Muhammad Sharif, but not before he had sown two crops in the land after the sale. Learned counsel for the respondent has also referred to the statement of the petitioner himself that possession of the land was acquired by him six months after attestation of mutation of sale.

5. On going through the record, it has been found that the submissions made by learned counsel for the respondents find support from the record in view of the clear admission made by the petitioner while appearing as D.W. 2 that possession of the disputed land was acquired by him six months after attestation of mutation of sale. There is hardly any substance in the petitioner's contention that the sale of p the suit land had been effected prior to the attestation of mutation of sale by delivery of possession of the land by the vendor. The respondents' suit which was instituted within one year from the date of attestation of the mutation of sale was not barred by time as held by the Courts below.

6. The petitioner has also assailed finding of the Courts below under issue No. 7. Learned counsel appearing on his behalf has argued that Muhammad Siddiq respondent had waived his right to pre‑empt the sale of the suit land because the vendor had agreed to sell the above land to him and had in fact also got a mutation of sale No. 4 (Exh. D. 1) entered in his favour. Subsequently, when the mutation came up for attestation before the Revenue Officer, Muhammad Siddiq respondent showed his inability to purchase the land as he could not arrange necessary funds for payment of price of the land.

7. Learned counsel for the respondents has submitted that there is no satisfactory evidence on the record to show that the same land was purchased by the petitioner which was offered for sale by the vendor to Muhammad Siddiq respondent and he could not purchase it for want of money.

8. According to the entries in column No. 9 mutation No. 4 Exh. D. 1, some land owned by Lal Din was to be purchased by Muhammad Siddiq respondent to the extent of 1/3rd share while the remaining 2/3rd share of the land was to be purchased by Muhammad Sharif, Abdul Majeed, Nazir Ahmad, Bashir Ahmad and Muhammad Hussain. None of the aforementioned persons had joined Muhammad Siddiq in the suit instituted to pre‑empt the sale in favour of the petitioner. There is no evidence to show that the land in respect of which mutation No. 4 was entered was the same land which was subsequently sold to the petitioner. The petitioner's contention that Muhammad Siddiq respondent had shown inability to purchase the land for want of funds is also not supported by any evidence. Under the above circumstances, the plea of waiver raised by the petitioner does not merit consideration and has been rightly rejected by the Courts below. In the written statement, the petitioner had pleaded that the respondents had lost their rights of pre‑emption by taking part in the bargain of sale, but at the trial, the evidence produced by him was to the effect that one of the respondents had declined to purchase the land when it was offered for sale to him by the vendor. It is well settled rule of law that the pre‑emptor can be deprived of his legal right to pre‑empt the sale only if it is established by cogent evidence that he had intentionally relinquished his above right. The evidence produced by the petitioner in the present case does not come upto the above standard. Finding of the Courts below under issue No. 7 is, therefore, not open to question.

In view of what has been stated above, there is no merit in this revision petition which is accordingly dismissed with costs.

H. B . T . Revision petition dismissed.

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