PLJ 2012
Present: Shahid Waheed, J.
GHULAM
SARWAR--Petitioner
versus
RUKHSANA KAUSAR,
etc.--Respondents
C.R. No. 3941 of
2010, decided on 30.3.2012.
----S.
13(3)--Transfer of Property Act, (IV of 1882), S. 52--Suit was not maintainable
due to exchange of land vide mutation--Failed to establish superior right of
pre-emption--Question of--Whether pre-emption suit was maintenable
due to transfer of suit property--Issuance of notice of talb-e-ishhad--Property was exchanged through mutation--Validity--Talb-i-muwathibat or talb-i-ishhad
does not eclips the rights of vendee or subsequent
owner for further transfer of ownership of an immovable property whereas talb-i-khusumat or pre-emption suit prohibits vendee from
transferring property in view of doctrine of lis pendens provided in S. 52 of T.P.A.--Petition was
dismissed. [P. 445] A
PLJ
2004 SC 653 & 2004 SCMR 1270, ref.
----S.
13(2)--Cause of action for making talbs--Right of
pre-emption--When fact of sale comes within knowledge of pre-emptor through any
service he can exercise right of pre-emption--Cause of action for making talbs accrues when pre-emptor comes to know about sale of
immovable property. [P. 446] B
----S. 2(d)--
Revisional Jurisdiction--
----Question of
law and facts if was found suffering from misreading or non-reading of evidence
or based on no evidence or inadmissible evidence--High Court in exercise of revisional jurisdiction should correct error committed by
subordinate Court but in absence of any defect of misreading or non-reading of
evidence in concurrent findings on such question, interference of High Court in
civil revision would amount to improper exercise of revisional
jurisdiction. [P. 446] D
Re-examination
and Re-appraisal of evidence--
----Not
permissible in revisional jurisdiction--If conclusion
drawn by subordinate Courts on question of fact was erroneous--Record did not
show any misreading or non-reading of evidence brought on record and therefore,
conclusion of Courts below did not warrant any interference by High Court in
its revisional jurisdiction. [P. 447] E
Mr. Taki Ahmad Khan, Advocate for Petitioner.
Date of hearing:
30.3.2012.
Judgment
This civil
revision is directed against the judgment and decree dated 12.8.2010 passed by
the learned Additional District Judge, Shakargarh,
dismissing the civil appeal and maintaining the judgment and decree dated
30.6.2009 of the learned trial Court whereby the plaintiff-pre-emptor's suit for possession through pre-emption was
dismissed.
2. Brief facts of the case are that the land
measuring 15 kanals in Khasra
Nos. 1237, 1238, 1244 and 1245, Khatuni Nos.30/31 and
355/406 situated in Mouza Baramanga.
Tehsil Shakargarh. District
Narowal was owned by Muzammal
Khan, who vide Mutation No. 1651 attested on 21.4.03 (Ex.P13) sold the land to Rukhsana Kausar (Respondent No.
1) and Naheed Bibi (Respondents
No. 2) for a consideration of Rs.3,00,000/-. Subsequently, Respondents Nos. 1
and 2 exchanged the above said land through Mutation No. 1690 attested on
16.5.2003 (Ex. P.14) with Abdul Majeed, (Respondent
No. 3). As per contents of the plaint the plaintiff came to know about the sale
i.e Mutation No. 1651 (Ex.P13) on 11.5.2003 at 9.a.m
in his Baithak from Muhammad Aslam
son of Ramzan Ali (PW-2), in the presence of Abdul Saeed son of Sultan Ali (PW-3) and Ghulam
Haider son of Taj Din and
the plaintiff in the same meeting declared his intention to exercise the right
of pre-emption through Talb-i-Muwathibat.
Subsequently on 24.5.2003 the plaintiff issued notice of Talb-e-Ishhad through registered post acknowledgment due attested
by Muhammad Aslam (PW-2) and Abdul Saeed (PW-3) and finally on 16.8.2003 the petitioner
instituted a suit for possession through pre-emption against the respondent
before the learned trail Court The defendants contested the suit and on
2.10.2003 filed joint written statement taking preliminary objections, inter
alia, regarding maintainability of the suit due to exchange of suit property
vide Mutation No. 1690(Ex.P14).
3. The learned trial Court out of the divergent
pleadings of the parties framed following issues:--
1. Whether the plaintiff has superior
right to purchase the suit property qua the defendants? OP P.
2. Whether the plaintiff has fulfilled the
requirement of Talbs as per law of land? OPP.
3. Whether the sale price Rs.3,00,000/- is ostensible and has not been paid actually and
the defendant purchased the suit land against a consideration of Rs.2,00,000/-?
OPP.
4. Whether the plaintiff has no cause of action ?OPD.
5. Whether the plaintiff is estopped to bring this suit by way of his conduct? OPD
6. Whether the pre-emption suit is not lain against the suit land due to transfer of suit land in favour of the defendant No. 3 OPD.
7. Whether the defendants, in case of decretal of suit, are entitled to recover of expenses of
sale alongwith the consideration amount of Rs. 3,00,000/-?
OPD
8. Relief.
4. Parties to the suit produced oral as well as
documentary evidence before the learned trial Court. The petitioner/plaintiff Ghulam Sarwar himself appeared as
PW-1. Muhammad Aslam as PW-2, Abdul Saeed as PW-3, Muhammad Afzal Patwari as PW-4, Syed Mubarak Ali
as PW-5, Muhammad Arshad Postal Clerk as PW-6 and
Muhammad Sadiq Postman as P W-7. The petitioner also
tendered in evidence Notice Talb-e-Ishhad (Exh. P1. P2, P3) Shajra Killa
Bandi (Ex.P4),
5. The learned trial Court dismissed the suit
vide judgment and decree dated 30.6.2009 for the reasons that the plaintiff had
failed to establish his superior right of pre-emption; and, also failed to
prove Talbs under Section 13 (3) of the Punjab
Pre-emption Act, 1991. The plaintiff filed an appeal before the Additional
District Judge Shakargarh, who while maintaining the
findings on material issues i.e Issue Nos. 1 and 2
came to the conclusion that the suit was not maintainable due to exchange of
land vide Mutation No. 1690 (Ex. P14). Feeling aggrieved by the concurrent
findings of the learned Courts below the plaintiff has moved the instant revision.
6. Learned counsel for the petitioner in support
of his revision has contended that notwithstanding exchange Mutation No. 1690
(Bx.P14) the plaintiff having superior right could maintain a suit on the
strength of Section 32 of the Punjab Pre-emption Act read with Para-221 of D.F.
Mulla's Mahomedan Law.
7. I have heard learned counsel for the
petitioner and perused the record with his assistance. The pivotal issue in the
case is Issue No. 6, that is, as to whether pre-emption suit was maintainable
due to transfer of suit property in favour of
Defendant No. 3. The plaintiff in his plaint, particularly paras
4 & 5 has categorically stated that before the issuance of notice of Talb-e-lshhad dated 24.5.2003
(Ex.P1, P2, P3) the Defendant Nos. 1 and 2 had exchanged the suit property with
Defendant No. 3 through Mutation No. 1690 (Ex. P14) which was attested on
16.5.2003. In my considered view Talb-i-Muwathibat or
Talb-i-Ishhad does not eclipse the rights of vendee
or subsequent owner for further transfer of the ownership of an immovable
properly whereas Talb-i-Khusumat or pre-emption suit
prohibits vendee from transferring property in view of the doctrine of lis pendens provided in Section
52 of the Transfer of Property Act, 1882. In this regard I find fortification
from the judgment rendered by Hon'ble Supreme Court
of Pakistan in a case titled Abdul Yameen Khan v. Ashrat Ali Khan and others (PLJ 2004 SC 653= 2004 SCMR
1270) and relevant extract thereof reads as under:--
"From the
case-law on the subject in general and from that cited at the bar, in
particular, one feels no difficulty in arriving at the conclusion, that once a
pre-emption suit stands instituted, a vendee is prohibited from entering into
sale or resale of the disputed property. It is obvious because the lis is pending adjudication. Even otherwise, it is a matter
of common sense that the provisions of Section 52 of the Transfer of Property
Act would get attracted only and only when the lis is
pending. Contrary to that, in the instant case, the pre-emptor had not then
instituted the pre-emption suit on 5.10.2000 when the vendee Abdul Subhan had already sold the property to Ashraf
Ali Khan on 29.9.2000 vide Mutation No. 639. How by any stretch of imagination
or interpretation this further sale can brought within the four corners of the
principle of lis pendens.
The learned High Court has, therefore, rightly held that it was a new
transaction altogether and the pre-emptor, if at all interested in pre-empting
the sale, should have filed a suit against the latest sale and not against the
previous one. If the principle of lis pendense is wrongly applied to the sales taking place prior
to the institution of suit then every purchaser shall be made bound to wait for
a pre-emption suit and refrain from exercising his proprietary rights over the
property purchased. The right of pre-emption by such interpretation,
cannot be so over stretched and so blow out of proportions."
The above said
principle was reiterated by the Hon'ble Supreme Court
of Pakistan in the case of Din Muhammad v. Abrar Hussain and another (PLD 2009 SC 93) wherein it has been
held as follows:--
"Moreover
according to the case of Abdul Yameen Khan v. Ashrat Ali Khan 2004 SCMR 1270, further sale in favour of Abrar Hussain (Respondent No. 1) prior to the institution of
pre-emption suit could not be brought within four corners of the principle of lis pendens and since a further
sale transaction had already taken place, it was the vendee of that further
transaction against whom suit for pre-emption should have been filed. Thus
institution of pre-emption suit against a person who was no more vested with
title would be nothing but an exercise in futility".
8. In view of above stated principle of law laid
down by the Hon'ble Supreme Court of Pakistan the
plaintiff suit for possession through pre-emption was not maintainable as
before the institution of the suit the vendees i.e
Respondent Nos. 1 and 2 had already exchanged the agricultural suit property
with Respondent No. 3 vide Mutation No. 1690 (Ex. P14) and thereby ceased to be
the owner of the suit property.
9. There is yet another angle to address this
issue. Section 13 (2) of the Punjab Pre-emption Act, 1991 provides that when
the fact of sale comes within the knowledge of pre-emptor through any source he
can exercise his right of pre-emption. In other words cause of action for
making talbs within the contemplation of Section 13
of the Punjab Pre-emption Act, 1991 accrues when pre-emptor comes to know about
the sale of immovable property. The word "sale" has been defined in
Section 2(d) of the Punjab Pre-emption Act, 1991 and as per definition the sale
does not include exchange of agriculture land. Admittedly at the time of
institution of suit the vendees by way of exchange Mutation No. 1690 (Ex. P14)
had divested themselves of all the rights in the suit property and they were
not owner of the property. Hence, the contention of the
learned counsel for the petitioner has no force and it is held that suit of the
plaintiff was not maintainable because exchange is a device permissible as
legitimate ground to avoid pre-emption.
10. There is no need to discuss other issues as
the Hon'ble Supreme Court of Pakistan in the case of
Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304) and Abdul Mateen
and others v. Mst. Mustakhia
(2006 SCMR 50) has laid down a principle that the concurrent finding on a
question of fact or mixed question of law and facts, if is found suffering from
misreading or non-reading of evidence or based on no evidence or inadmissible
evidence, the High Court in exercise of the revisional
jurisdiction should correct the error committed by the subordinate Courts but
in absence of any defect of misreading or non-reading of evidence in the
concurrent finding of two Courts on such question, the interference of the High
Court in the civil revision would amount to improper exercise of revisional jurisdiction. Moreover, re-examination and
reappraisal of evidence is not permissible in revisional
jurisdiction even if conclusion drawn by the subordinate Courts on a question
of fact was erroneous. The revisional power of High
Court is exercised for correcting an error committed by the subordinate Courts
in exercise of their jurisdiction and mere erroneous decision would not call
for interference unless it is established that the decision was based on no
evidence or the evidence relied upon was inadmissible or the decision was
perverse so as to cause grave injustice. In instant ease, the perusal of record
does not show any misreading or non-reading of evidence brought on record by
the parties and, therefore, the conclusion of the Courts below does not warrant
any interference by this Court in its revisional
jurisdiction.
In view of
above, the instant petition being without merit is dismissed in limine.
(R.A.) Petition dismissed