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1985 C L C 1112

 

[Azad J & K]

 

Before Abdul Ghafoor, J

 

MIR ALAM KHAN–Appellant

 

Versus

 

SHER ALAM and 7 others–Respondents

 

Civil Appeal No. 12 of 1984, decided on 7th January, 1985.

 

(Appeal against the Judgment and decree of the Additional District Judge Poonch (Bagh), dated 3-3-1984).

 

 

A I R 1919 Lah. 79; P L D 1969 Lah. 71 and P L D 1961 B J 34 ref.

 

Sheikh Abdul Aziz for Appellant.

 

Raja Sher Muhammad Khan for Respondents.

 

Date of institution: 20th March, 1984.

 

JUDGMENT

 

This is an appeal against the judgment and decree of the Additional District Judge Poonch (Bagh), dated 3rd of March, 1984, whereby the decree passed by the learned Sub-Judge Bagh on 29th of April, 1981, was confirmed.

 

2. The brief facts which gave rise to this appeal are that Sher Alam and others respondents filed a suit for pre-emption against the appellant for the land measuring 19 Kanals and 6 Marlas comprising Survey No. 293 situate in village Jaglari. It was stateo in the plaint that Mir Alam Khan, appellant (defendant No. 1) brought a declaratory suit against Jang Khan and others on 28th of May, 1963 to the effect that land measuring 19 Kanals and 6 Marlas, comprising Survey No. 293 ,situate in village Jaglari was purchased by him through an oral sale in the year 1950 and a decree to that effect may be passed against the defendants who refuse to accept this fact. During the pendency of the suit. defendants Jang Khan, Nikka Khan and Balor Khan filed compromise deed whereby the right of Mir Alam Khan was accepted. Ali Muhammad, defendant was proceeded ex parte, whereas a decree against Resham Khan was passed on 17th of August, 1965 on merits.

 

3. Sher Alam Khan and others, respondent filed a suit for pre emption on 17th August, 1971 against the appellant and stated that the defendant-appellant actually purchased this land but in order to defeat their rights of pre-emption, got a fake decree on 17th August, 1965. In fact it was an outright sale and the land was sold for a sum of Rs.500. They are the colleterals of the vendors, Jang Khan and others and are entitled to pre-empt this sale, therefore, a decree on the basis of right of prior purchase may be granted in their favour.

 

4. Defendant-appellant denied the claim of the plaintiff-respondents and prayed for the dismissal of the suit through his written statement dated 9th of December, 1973.

 

5. The learned Sub-Judge settled the issues and after recording the evidence and hearing the parties, decreed the suit on payment of Rs.1,800 through his order dated 29th of April, 1981.

 

6. The defendant-appellant feeling aggrieved of the decree of the learned Sub-Judge, went in appeal to the Court of Additional District Judge Poonch (Bagh) who, through his order dated 3rd of March, 1984, upheld the decree sought to be impeached and this decree of the learned -Additional District Judge in the subject-matter of the present appeal.

 

7. The learned counsel for the appellant assailed the decree appealed against on the following grounds:–

 

(i) that the appellant got the suit land through a decree and it was wrong to say that the transaction was in fact a sale; and

 

(ii) that the suit was not brought within the prescribed period of limitation.

 

8. The learned counsel elaborating his point of view on point No. 1, stated that his client purchased the suit land in the year 1950 through an oral sale because of the fact that at that time, there was no agency for the registration of the documents. He remained in possession thereof when in the year 1963, Jang Khan and others defendants started denying his rights of ownership over the suit, land, therefore, he brought a declaratory suit and during the pendency of the suit, Jang Khan, Balor Khan and Nikka Khan, relinquished their rights on payment of Rs. 800. He stated that Ali Muhammad did not contest the suit thus, he was proceeded ex parte and an ex parte decree was passed against him, whereas Resham Khan contested the suit and a decree was also passed against him on merits. Keeping in view this history of the case, how it was possible to say that the land was purchased by the appellant. He prayed that the finding of the lower Courts on this point lacks the support of evidence, therefore, it may be reversed.

 

9. On the point of limitation, he stated that limitation to file a suit for pre-emption is one year from the date of the sale. Although the transaction sought to be impeached is not a sale yet if in any case, the same is accepted to be a sale, even then, the suit must have been brought on or before the 17th of August, 1966. He prayed that the suit was brought after the period of limitation, therefore, it requires to be dismissed, on this solid ground.

 

10. The learned counsel for the respondents on the other hand, controverted the stand taken by the appellant and stated that the defendant-appellant in para. 3 of his written statement admitted the transaction to be a sale, therefore, it does not lie in his mouth to say at this stage and deny the real character of the transaction. He referred to the phraseology used in para. 3 of the written statement wherein the appellant-defendant stated “he purchased the land for a sum of Rs.500 but now the prices of the lands have gone up and in the year 1965, the price of one Kanal of land is more than 300 per Kanal and now at this. time, the market value is more than Rs.500 per Kanal, therefore, he paid Rs.400 to Nikka Khan and Jang Khan and Rs.400 to Balor Khan, thus, he has paid Rs. 1,300 as price of the land.” Elaborat ing his point of view, he stated that the defendant-appellant in very clear and unambiguous language, has admitted the transaction to be a sale, therefore, there remains no need of any evidence to be led, to prove this transaction.

 

11. On the point of limitation he stated that a suit for pre-emption where the land is sold through a .registered sale-deed can be brought within one year from the date of the transfer of possession of the property sold or the date of the registration of the sale-deed but when the land is not transferred through a registered sale-deed and the possession of the land sold, is not transferred under the sale, the period of limitation is six years as provided in Article 120 of the Limitation Act and as the decree (which was in fact a sale) was passed on 17th August, 1965 and the suit was brought on 17th of August, 1971 therefore, it was within time and the lower Courts have rightly passed the decrees.

 

12. I have considered the points raised before me and have studied the relevant record of the case. I have also gone through the compromise deeds Exhs. P. A. and P.B. on File No. 1475/1959 of the Court of Sub-Judge Bagh which contain the terms of the compromise.

 

13. The first objection of the learned counsel for the appellant relates to the actuality of the decree dated 17th of August, 1965 and to find out its real character, it would be useful to refer to the compromise deeds dated 15th September, 1963 and 30th of October, 1963 Exhs. D.A and D.B., whereby Balor Khan, on receipt of Rs. 400 and Jang Khan and Nikka Khan both, on receipt of Rs. 400 surrendered the residue of their rights in the suit land. Had these persons transferred their full ownership through an oral sale dated 15th June, 1950, as claimed by Mir Alam Khan in this plaint, he would not have paid this handsome amount of the second time. I think, the absolute divestment of the rights of ownership of Balor Khan took place on 25th September, 1963 and in case of Khan and Nikka Khan, it took place on 30th of October, 1963 and Exhs. D.A. and D.B. constitute the sale-deeds for the transfer of rights of ownership held by Balor Khan, Jang Khan and Nikka Khan mentioned above. The rights of Ali Muhammad and Resham Khan, in the suit land as claimed by Mir Alam Khan were purchased by him through an oral sale on 15th June, 1950 and the learned Sub-Judge on the basis of this claim, granted the declaration. This state of the matter would show that Mir Alam Khan purchased the rights of Ali Muhammad and Resham Khan in the suit land on 15th June. 1950, whereas part of the rights of Balor Khan, Jang Khan and Nikka Khan, were purchased on 15th June, 1950 and the residue of their rights were purchased on 25th September, 1963 and 30th October, 1963. This transaction is, therefore, he:d to be sale and open to pre emption.

 

14. The second objection of the learned counsel is based on the point of limitation. Section 29 of the Prior Purchase Act prescribes one year period for filing the suit for pre-emption when purchaser taken under the sale sought to be impeached physical possession of the whole of the property sold or when subject-matter of the sale does not admit physical possession, when the instrument of sale is registered.

 

15. The provisions of section 29 of the aforesaid Act and Article 10 of the Limitation Act can only be invoked in a case when the purchaser under the sale, takes physical possession of the property sold or when the sale-deed is registered. In the instant case, the appellant was admittedly in possession of the suit land long before the year 1965 and the land was not sold through a registered deed, therefore,-the provi sions of section 29 of the Prior Purchase Act and Article 10 of the Limitation Act cannot be made applicable to this case. It is almost settled that the provisions of section 29 of ,the Act and Article 10 of the Limitation Act are exhaustive, therefore, the residuary Article 120 of the Act is applicable in such case of pre-emption, as was held in a case reported in 1974 S C M R 425; the relevant observations are reproduced blow:-

 

“The seventeen sale-deeds being unregistered, the suit was not governed by Article 10 of the Limitation Act, 1908. Similarly, section 31 of the N-W.F.P. Pre-emption Act, did not apply because the sale being that of a house, no mutation was sanctioned and it was found by the Courts below that it was not proved that the petitioner as vendee entered into possession of the house under sale in his favour. Such being the case, the suit will fall under the residuary Article 120, for which the limitation is six years.”

 

In P L D 1967 Pesh. 166, it was held as under:-

 

“Where such a property is sold by unregistered deed the trans action is not covered by either Article 10 of the Limitation Act, 1908 nor by section 31 of the N-W.F.P. Pre-emption Act, 1950.

 

The relevant provisions of law applicable in such case is Article 120 of the Limitation Act, 1908 which prescribes a period of six years.”

 

I, therefore, hold that in the present case, the residuary Article 12 of the Act would be applicable and the period for filing tile suit in this case would be six years and not one year as was claimed by the learned counsel for the appellant.

 

16. Now the point which is required to be considered is as to on which date, the time of limitation would start running for filing the suit for pre-emption.

 

17. The Courts below have held that the time for filing’ this suit shall start running from the date of the decree i.e. from 17th August, 1963 as according to them, the decree constituted the sale, whereas I have held that the sale of the rights has taken place on 30th of October, 1963 when Bator Khan and others finally alienated their rights in favour of Mir Alam Khan. Therefore, it is required to be investigated whether the divestment of the rights took place from the date of the oral sale and the compromise deeds or from the date of the decree, whereby the rights acquired on account of oral sale and by way of compromise were formally declared b.-,r the learned Sub-Judge and incorporated in the decree.

 

17-A. The term “sale” has neither been defined in Prior Purchase Act’ nor the definition of the “sale” given in section 54 of the Transfer of Property Act has been adapted, therefore, its ordinary dictionary meanings “exchange of commodity for money” will have to be applied here. In such a case, the oral sale and the compromise whereby Bator Khan, Jang Khan and Nikka Khan, on receipt of money executed compromise deed and divested them of their all rights in the land, constitute “sale” because the right of ownership of the land when” w divested from Bator Khan and others immediately shall vest in Mir Alan Khan as it cannot remain in the air for about one year and 9 months when the learned Sub-Judge formally incorporated it into the decree.

 

18. The point, whether the sale takes place from the date when the parties settled their terms or when on the basis of such terms, a decree is passed by the Court, came under consideration by the learned E Judges of the Lahore High Court in a case reported in A I R 1919 Lah. 79 and it was held :-

 

“When the validity of a sale is questioned and is finally declared by a decree of Court, limitation for a suit in respect of the sale begins to run from the date of the sale, and not from the date of the decree declaring its validity.”

 

19. The same question came under consideration before the Lahore High Court and in a case reported in P L D 1969 Lah. 71, it was held that :-

 

“Mutation, not an ingredient or incident of sale.–Oral sale of agricultural land on payment of price and delivery of possession effected in 1951–Mutation at time, however, refused on vendors’ refusal to accept liability to pay agricultural income-tax in respect of land–Subsequently change in law relating to such tax and mutation sanctioned in 1956–Suit for pre-emption, thereafter, filed in 1957 in respect of land–Period of limitation for filing suit, in circumstances held governed by S. 30 of Act I of 1913 and period computed from date of Oral sale and delivery of possession in 1951 and not from date of mutation effected in 1956.”

 

20. Again, the B.J. High Court in a case reported in P L D 1961 BJ 34 considered this point and it was held that:-

 

“Sale of land shall be deemed to have been completed on the day on which it was effected and not on the date on which mutation in the revenue records was sanctioned about it. Title in the property passes when the transaction of sale is completed and is not postponed till the attestation of the mutation in the revenue records.”

 

21. As I have already held that the sale was completed on or before the 30th October, 1963, therefore, the suit which was brought on 17th August, 1971, after the expiry of six years, is barred by time and it was libale to be dismissed.

 

22. Keeping in view the above observations, I hereby accept this appeal, set aside the judgments and decrees passed by the Courts below and dismiss the suit with no orders as to costs.

 

M.Y.H. Appeal accepted.

 

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