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(a) Punjab Pre-emption Act (I of 1913)--

---Ss. 4 & 15--Pre-emption suit--Superior right of pre-emption- Determination of--Vendees admittedly being a stranger in village had no landed property whereas pre-emptor had become land owner in village, land having been gifted to him by his brother by means of mutation- Pre-emptor's superior right of pre-emption as against vendees, held, was established in circumstances.

(b) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)--

---S. 2--Gift, validity of--Mutation--Gift could be made orally but if made in writing would not need compulsory registration--Stranger to gift, held, could not invoke the rule of gift being bad or invalid on account o non-delivery of possession.

Sh. Inayat Ali for Appellant.

Zafar Ali Hashmi for Respondents Nos.l to 5.

Hafiz Muhammad Saeed for other Respondents.

Date of hearing: 21st October, 1984.

MUHAMMAD SHARIF, J.--The appellant has invoked the appellate jurisdiction of this Court for the quashment of the judgment and decree, dated 20-6-1981 pronounced by Ch. Ihsan Ahmad, the learned Civil Judge I-Class, Bahawalpur who had non-suited the appellant-pre-emptor.

2. The facts of this case succinctly are that the land in dispute measuring 88 Kanals and 9 Marlas situate in village Kirani, Tehsil and District Bahawalpur belonged to Malik Khan Muhammad who sold the same in favour of the respondents in consideration for a sum of Rs.60,000 by means of a registered sale-deed, dated 15-9-1973. Ghulam Nabi, the appellant, who claims to be an owner in the Khata in dispute, sought to pre-empt the sale of the land in dispute on the basis of his preferential right of pre-emption and on the allegation that a sum of Rs.60,000 was not actually paid to the vendor.

3. The respondents denied the appellant's superior right of pre-emption and inter alia contended that the appellant had waived his right of pre-emption by his words and conduct and the suit was not maintainable. They reiterated that they in fact paid a sum of Rs.60,000 by way of the sale price of the land in dispute. The learned trial Court formulated the following issues:-

(1) Whether this suit is not maintainable for the reasons stated in preliminary objection No.1 of the written statement of the defendants No.1 to 5 O.P.D. 1 to 5.

(2) Whether the plaintiff has waived his right of pre-emption by hiswords and conduct O.P.D.

(3) Whether the plaintiff has superior right of pre-emption as against the defendants qua the suit land O.P.D.

(4) Whether Rs.60,000 were fixed in good faith or actually paid as sale price of the suit land O.P.D.

(5) If issue No.5 is not proved, then what was the market value of the suit land at the time of its sale O.P. Parties.

(6) Relief.

4. Before the disposal of the said suit, the pre-emptor had conceded the sale price of Rs.60,000 and the controversy regarding issues Nos.4 and 5 was set at rest. Issues Nos. 1. and 2 were not proved. The cardinal issue was issue No.3 and the learned trial Court held that Ghulam Nabi had divested himself of the entire land in the village by means of Mutation No. 1198 and he could not validly prove that two Kanals of land had been donated to him by his brother Faqir Muhammad and had delivered its possession. The suit of the plaintiff-appellant was dismissed on the basis of the finding on issue No.3 by the learned trial Court. This solitary issue has been agitated before us.

5. It is an admitted factual position that the vendees are strangers in the village and they had no landed property therein. It may be observed that the learned trial Court had completely misread Mutation No.1198 sanctioned on 28-9-1974. This document evidences that actually Ghulam Nabi had purchased landed property from Habibullah Khan and the land mentioned in the said mutation was an accretion to the property of Ghulam Nabi. Habibullah Khan had sold his entire land and Ghulam Nabi was still a land owner in the village. It could be said in respect of Mutation No. 1198 that Ghulam Nabi had become an owner of land by virtue of an oral sale which could not be made basis of a preferential right of pre-emption. On that score it appears that Sh. Inayat Ali, Advocate the learned counsel for the appellant did not base his arguments on Mutation No. 1198. He has laid stress on the point that Ghulam Nabi was gifted land by means of Mutation No. 1080 attested on 30-7-1971 the copy of which is Exh.P.6 and the said mutation was not open to any exception nor was it assailable.

6: According to Muhammadan Law, a gift can be orally made by the owner and if in writing, it does not need any compulsory registration. This legal proposition has been admitted by the learned counsel for the respondents. The learned counsel for the respondents has simply contended that the appellant could not prove that possession was delivered to him and in this view of this matter, he could not rely on an oral mutation. It may be noted that the appellant did not tender in evidence the mutation of gift only, but he' has got exhibited the copy of Jamabandi EXh.P.l which incorporates Mutation No. 1080 and Ghulam Nabi has been entered in the column of owners in Khata No. 152. Strong presumption of truth is attached to a copy of Jamabandi which has not been rebutted by the vendees in this case. In accordance with Dost Muhammad Khan v. Imam Bakhsh P L D 1971 Pesh. 150 and Saida v. Pinnu P L D 1979 S C (A J & K) 245 a third party cannot invoke the rule that the gift is bad or invalid on account of the non-delivery of possession. The vendees, therefore, could not assail the gift so as to make it invalid due to the fact that the possession had not been delivered.

7. The revenue record shows that the donor is in possession of the property as a tenant. Abdul Aziz, when examined on 2-4-1981, posed his ignorance whether or not Faqir Muhammad attorned to Ghulam Nabi regarding the gifted land. It shows that he is not sure about the delivery of possession. In this manner, . Ghulam Nabi can safely be included among the owners of land in this village and can boast of a preferential right of pre-emption.

8. In the light of the above observations, we accept this appeal and set aside the impugned judgment and decree and decree the suit of the plaintiff /appellant for possession by pre-emption of the land in dispute on payment of Rs.60,000. The appellant shall deposit the balance of the pre-emption money on or before 20-11-1984 failing which his suit shall stand dismissed with costs.-Due to the legal complexities involved in this appeal, we make no order as to costs.

H.B.T. Appeal allowed.

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