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Regular Second Appeals Nos. 246 and 247 of 1984, decided on 22nd December, 1986.

---S.4--Right of pre-emption on basis of ownership in estate--Claim of ownership of pre-emptor in estate challenged by vendee on plea that mutation of ownership in favour of such pre-emptor whereby he claimed right of pre-emption was not indicative of fact whether same was of gift or sale--Transaction by which pre-emptor attained ownership in estate, held, could not be assailed by vendee where title to such pre-emptor had passed before sale of pre-empted land.

---S.42--Mutation, evidentiary value of--Mutations, held, do not either form evidence of title or by themselves create transactions but on1V incorporate existing transactions.

---S.4--Civil Procedure Code (V of 1908), S. 149 & O.VII, R.11- Pre-emption suit--Deficiency in court-fee--Such deficiency made good by pre-emptor and accepted by trial Court even after period of limitation, held, could not be assailed in view of rule laid down in PLD 1986 S C 227.

Mst. Parveen v. Mst. Jamsheda Begum and another P L D 1983 S C 227 rel.

M. Ismail Munawar for Appellant.

This and also Regular Second Appeal No.247 of 1984, bearing similar facts, have been filed by the respective vendees against the same respondent, Nisaruddin. They arise out of the decrees for possession of agricultural land through pre-emption passed in his favour in his two appeals maintained against the dismissal of his two suits filed against the sales respectively made, by means of Mutations Nos. 287 and 288 (both sanctioned on 28-11-1973) with regard to 32 Kanals and 90 Kanals 2 Marlas of land situated in village Nangal Sadhan, tehsil Ferozewala, District Sheikhupura, for ostensible prices of Rs.24,000 and Rs.85,500 respectively. Both the appeals have been heard together and this order will deal with both of them.

2. Respondent Nisaruddin filed two suits on 27-11-1974 to pre-empt these sales on the plea that on the date of the sales sued about, he was an owner of the estate but the respective vendees were not and, therefore, he has a superior right of pre-emption. Both the suits were contested by the defendants on record and were set down to be tried on the relevant issues embodying the respective pleas of the parties.

3. To prove his superior right of pre-emption, the plaintiff respondent relied upon Mutation No.280 sanctioned on 28-11-1973 with regard to gift of 9 Kanals 17 Marlas made in his favour by one Mst. Hassi. This mutation was entered on 11-11-1973 to incorporate the gift in the Revenue record and therein Mst. Hassi appeared before the Revenue Officer on 17-11-1973 to affirm it. The mutation was, however, formally sanctioned on 28-11-1973, the same date on which the mutations of the two sales in suit were sanctioned. Learned trial Judge decided the other issues in favour of the plaintiff but the issue relating to superior right of pre-emption was decided by him against the plaintiff on the assumption that he became an owner of the estate only on 28-11-1973, when the mutation was attested and hence, he could not be regarded, to have become an owner of the estate on any date before that and, consequently, dismissed both the suits on 4-4-1984 by 'means of independent judgments passed in the two suits on the wine lines.

4. Two appeals filed there against by the plaintiff were, however, accepted by the learned Additional District Judge on 15-10-1984 by means of independent judgments passed to reverse the trial Court's findings on the issue relating to superior right of pre-emption and decreed his suits for the reason that the mutation was not a document of title but it simply incorporated an existing fact which, in these cases, was found to be a gift made in favour of the plaintiff before 11-11-1973, when Mutation No.280 was got entered with the Patwari, to be subsequently affirmed on 17-11-1973 by Mst. Hassi herself before the Revenue Officer and, hence, his title therein could not be deemed to have been held up until the sanction of mutation thereabout. The vendee-defendants have filed these two second appeals against the respective appellate decrees.

5. It was argued that learned Additional District Judge had erred in holding the respondent-plaintiff to have become an owner of the estate from a date prior to the purchase by the appellants of land in dispute and it was also urged that the relevant mutation had been misread to accept it to be relating to a transaction of gift in so far as the transaction was actually a sale and was even sham. It was contended even that the appellate Court had erred in assuming that the plaintiff was not guilty of negligence or contumacious conduct in the payment of deficient Court-Fee on his suits. Record was summoned to verify the correctness of these submissions. It has been received and perused.

6. It is, no doubt, correct that Mutation No.280, relied upon by the plaintiff is support of his title, has some indication that the transaction embodied therein may be a sale but nothing turns upon this fact because whether it is a sale or a gift, the appellants do not get a right to assail the transaction and in either eventuality title in the relevant land passed on to the plaintiff on the date of completion of the transaction which, there is no doubt, had come into existence before the entering up of the mutation on 11-11-1973 and learned Additional District Judge has rightly given effect to this transaction from a date before the sales sued about. It is uncontrovertable that mutations do not either form evidence of title or by themselves create transactions but they only incorporate existing transactions. Contention raised by the learned counsel on this score has no merit and is repelled accordingly.

7. Suits of the plaintiff were found to have been deficiently stamped and by the order dated 10-2-1975 he was directed to make up the deficiency in court-fee in accordance with the estimate of net-profits but neither was the amount of deficiency specified nor was a positive date fixed for the purpose. Requisite Court-fee was furnished by him in both the suits and by the respective orders passed by the trial Court on 19-2-1975 it was accepted to have been made up. In this situation, the rules of law laid down in Mst. Parveen v. Mst. Jamsheda Begum and another P L D 1983 S C 227 got attracted and learned Additional District Judge has rightly followed it to repel the objection of the vendees on this point.

8. No other point has been argued by the learned counsel.

9. There is no force in these appeals, therefore, both the appeals are dismissed in limine.

A.A. /M-82/L Appeals dismissed.

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