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Petitioner: Syed TURAB SHAH VS Respondent: WARAD SHAH And 19 Other
Court Name: Peshawar High Court Judge(s): Faiz Muhammad Khan Title: Syed TURAB SHAH vs WARAD SHAH And 19 Other Case No.: Civil Revision No. 198 of 1983 Date of Judgment:1987-06-17 Reported As: PLD 1987 Peshawar 132 Result: Revisions accepted
JUDGMENT
JUDGMENT The property which is subject-matter of two pre-emption suits bearing Nos. 49/1 and 50/1 of the year 1977 was owned by Muhammad Hussain Shah and others, who sold it in favour of Warad Shah through registered sale-deed No. 116, dated 27-3-1973, for the ostensible amount of Rs.12,000, which was inclusive of the mortgage charge of Rs.1,400 which existed on a portion of the suit land. The sale was pre-empted by Syed Turab Shah and others in suit No. 49/1 and by Noor Hussain Shah in suit No. 50/1. These numbers were assigned to the suits subsequently, the previous numbers being respectively 138/1 and 132/1 of the year 1974, which were consolidated by the learned trial Judge vide order dated 25-4-1974. As a result of consolidation rival pre-emptors were added as defendant in the suit instituted by the other. Evidence of the parties was, however, recorded in suit No. 50/1, the previous number of which was 132/1. Later, on an application submitted by the original vendee that he had transferred the suit land in favour of Mst. Bibi Afza, his wife, in recognition of her superior right of pre-emption and that a civil Court decree to that effect had also been passed in her favour, she was added se defendant in both the suits and for that purpose amended plaints were filed by the pre-emptors wherein they challenged the transfer in favour of Mst. Bibi Afza, as also. The decree passed in her favour, as fictitious, collusive, and fraudulent and as such., having no binding effect on the pre-emptors. They also disputed the sale consideration entered in the sale- deed and alleged that it had been wrongly entered as having been paid to the vendors. The pre- emptors based, their pre-emptive rights on all the three grounds mentioned in the N.-W.F.P. Pre- emption Act and alleged that the first vendee had no such qualifications. Noor Hassan Shah also alleged that the' pre-emption suit instituted by Turab Shah and others was collusive and for the
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benefit of the original vendee, the plea which was neither urged before the lower Appellate Court nor before this Court. 2. Both the suits were contested by the original vendee as well as by the subsequent transferee Mst. Bibi Afza on .Many grounds. The rival pre-emptors also disputed each other's claim. 3. On the pleadings of the parties the learned trial Judge framed as many as fourteen issues, out of which the issues pressed before the learned lower appellate Judge and also before this Court are issues No. 4 and 12, which are as under:-- (4) Which of the rival pre-emptor has a superior right of pre-emption? O.P.D./Pre-emptors. (12)Whether the decree in favour of defendant No. 14 dated 11-11-1974 is the result ' of fraud and collusion between defendants No. 1 and 14 and hence is not binding on the rights of the plaintiff? O.P.P. 4. On the conclusion of the proceedings, the learned trial Judge, having found issues Nos. 4 and 12 against the pre-emptors, by the judgment and decree dated 7-12-1980, dismissed both the suits. 5. Aggrieved .By the judgment and the decree of the learned trial Judge, the pre-emptors filed two separate appeals before the learned District Judge, Mansehra, one of such appeal was by the successors of Noor Hussan Shah pre-emptor who had died during the pendency of the suit. Before the learned District Judge the issues pressed by the appellants were as indicated in paragraph 3 above. The learned District Judge heard both the appeals together. And by a consolidated judgment, dated the 29th October, 1983, dismissed both the appeals, making no orders as to costs. 6. The pre-emptors have challenged the judgments and the decrees of the learned Courts below by way of two revision petitions filed in this Court, bearing Nos. 198 and 199 of the year 1983, which shall be disposed of by this single order. 7. The learned trial Judge found issue No. 4 against the pre-emptors and non-suited them on the ground that the original vendee having transferred the suit land in favour of Mst-. Bibi Afzal in recognition of her superior right of pre-emption, within the statutory period of limitation, through a deed which was not challenged by' the pre-emptors, and the subsequent transferee being a co- sharer in. The entire suit land had right equal to some the pre-emptors and superior to others of them. He held that device of transfer in favour of better right-holder adopted by the original vendee was the one recognized by the law of pre-emption and was sufficient to non-suit the pre- emptors who did not have a better right than the subsequent transferee. In view of this finding, he decided issue No. 12 in the negative. The learned District Judge, while deciding the appeals, fully endorsed the. Findings of the learned trial Judge on these issues, as also the reasoning adopted by him in reaching the conclusions. 8. Khawaja Abdur Rashid, Advocate, the learned counsel appearing for Turab Shah and other petitioners, argued that the findings reached by the learned Courts below were the, result of misreading and non-reading of evidence brought on the record and were also based on extraneous considerations and evidence which was either not available on the record or was not a legal evidence. He contended that in the pre-emption suit the petitioners had specifically challenged the transfer in favour of Mst. Bibi Afza the wife of the original vendee, to be a collusive and sham transaction, having been effected, if at all, after the expiry of limitation prescribed for filing a pre-emption suit. He further argued that the document which was taken by the learned trial Judge to be the basis for the transfer and the decree in favour of Mst. Bibi Afza was also challenged by the pre-emptors to be a collusive and factitious documents, besides being inadmissible in evidence for want of registration, and having neither been tendered in evidence nor proved at the trial in this suit could not be used against the pre-emptors who were not party to the suit between the original vendee and Mst. Bibi Afza, which had ended in a consent decree in favour of the latter. In the same context, he contended that the transfer by the.Original vendee in favour of Mst. Bibi Afza being an after-thought with no genuineness in it and having been reached much after the
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expiry of limitation for filing a pre-emption suit, though fictitiously expressed to have been given effect from 25-3-1974, was of no avail to the parties to that transaction against the pre-emptors whose suits were pending when this fictitious transfer took place, which could not be earlier than, if at all, the date on which consent decree was passed in favour of Mst. Bibi Afza. In this regard he also pointed out on the record the written statements filed by the original vendee on 25-4-1974 in both the suits, wherein he did riot assert that the land in suit had already been transferred by him to. Mst. Bibi Afza. This fact alone, the learned counsel submitted, was sufficient to indicate that the transfer of the suit land expressed to have taken place in favour of Mst. Bibi Afza on 25-3-1974 was nothing but a fictitious, fraudulent, and sham transaction. His other contention was that the reading of paragraph 1 of the plaint of suit instituted by Mst. Bibi Afza against the original vendee would clearly show that the suit land was purchased by .The original vendee with the price arranged by Mst. Bibi Afza, which would mean that the sale in favour of the original vendee was facilitated and effected with the active participation of Mst. Bibi Afza. Having become a facilitating agent to sale in favour of the original vendee, the learned counsel argued, she -thereby forfeited her right of pre-emption which could not be revived later, and after such forfeiture, site Was estopped to claim the, land in suit from the original vendee on the basis of her superior right on the date of the institution of suit by her, as also on the date on which the land was fictitiously shown to have been transferred in her favour by the original vendee. In support of his contention he relied on Zahur-ud-Din Khan's case PLD 1959 (W.P.) Pesh. 148. The learned counsel submitted that for all these reasons the judgments and the decrees passed by that learned Courts below merited to be set aside. 9 Mr. Muhammad Younas Tanoli, Advocate appearing for the rival pre-emptors Noor Nabi Shah and others in Civil Revision No. 199/83, while adopting the aforesaid arguments of the learned counsel for other pre-emptors also added that the original vendee and the subsequent vendee were amicably living together in one house as husband and wife and the purchase of the suit land by the original vendee being with the consent and the money of the subsequent vendee, the subsequent vendee would be deemed to have waived her right of pre-emption. He also pressed into service the principle of sinker against the rival pre-emptors (petitioners in Civil Suit No. 198/1983) and contended that while applying this principle to this case the rival pre-emptors would be having right only with respect to land in Khata No. 174/396-399. The learned counsel argued that the plea of sinker though not raised earlier could be raised at any stage as patwari's statement in this respect being available on the record was sufficient evidence to resolve this plea. 10. The learned counsel for the subsequent vendee argued that the plea of estoppel now raised was neither in the pleadings nor in the grounds of appeal and revisions and could not, therefore, be raised at this stage. He contended that all the relevant' documents in respect of the transfer by the original vendee in favour of subsequent vendee having been placed on this record could be looked into by the Court under Order XIII, Rule 10, C.P.C. His contention was that the transfer of the suit land by the original vendee in favour of the subsequent vendee was made on 25-3-1974 and to that effect not only a mutation No. 2033 was got entered on 25-3-1979 but a document was also executed on that date, which was nothing but an acknowledgement of the factum of transfer having been already completed arid as such it did not require, registration. He argued that the transfer by the original vendee in favour of the subsequent vendee was complete on the date when the report was made to Patwari Halqa and the attestation of mutation No. 2033 had been postponed on account of temporary injunction issued by the trial Court on the request of the pre- emptors, which would mean that the pre-empturs had also admitted that fact. This transfer having taken place within the period of limitation was sufficient to non-suit the pre-emptors and the concurrent finding of fact reached by the learned Courts below in this regard could not be disturbed in revisional jurisdiction of this Court.
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11. There are certain facts which are either undisputed or established, on the record and need be mentioned in the beginning as under: The sale of the suit land in favour of the original vendee was effected through registered sale deed dated 27-3-1973. The two pre-emption suits out of which these revision petitions arise were instituted in the Court under the original numbers on L6-3-1974 and 27-3-1974. The suit bearing No. 604/1 in which decree was passed in favour of Mst. Bibi Afza, the subsequent vendee, against Warad Shah, the original vendee, was instituted in Court on 8-11-1974 arid was decided on 11-11-1974 on .The basis of the compromise filed in Court on the last mentioned date. By this compromise Warad Shah agreed to passing of the decree in favuur of Mst. Bibi Afza. It was also mentioned in the compromise deed that defendant (Warad Shah) had transferred the suit land in favour of plaintiff (Mst. Bibi Afza) through an agreement deed dated 25-3-1974 and had also got entered sale mutation in her favour respecting such transfer. This suit was filed in Court during the pendency of the pre-emption suits of which Warad Shah defendant having submitted written statements in both the suits was aware. In spite of it the pre-emptors were not made party in suit No. 604/1 instituted by Mst. Bibi Afza and the decree was obtained by her against Warad Shah, her husband, behind the back of the pre-emptors. On the date of decision of suit No: 604/1 Mst. Bibi Afza was. Not present in Court and the compromise deed was signed on her behalf by her counsel. Neither at the trial stage of the pre-emption suits, nor at any subsequent stage the agreement deed dated 25-3- 1974 was tendered in evidence against the pre-emptors nor was any witness examined in proof of it. In the pre-emption suits parties have produced oral evidence to which reference has not at all been made by-the learned two Courts below. 12. Both the Courts below have non-suited the pre-emptors on the ground that the land in suit having been transferred by the original vendee in favour of the subsequent vendee within the statutory period of limitation in recognition of her superior pre-emptive right, and the subsequent vendee clothed as she was with the qualification equal to the pre-emptors could thereby successfully defeat the pre-emption suits. While holding the transfer by the first vendee in favour of the subsequent vendee to be within the limitation (prescribed for a pre-emption suit) the learned trial Judge held as under: "The vendee has got no right over .The suit land,, but he has transferred the suit lard vide deed dated 25-3-1974 in favour of Mst. Bibi Afza co-sharer in recognition of her superior right of pee- emption. On the basis of this deed a decree was also obtained, by Mst. Bibi Afza on 11-11-1974." This finding in respect of date of the transfer of the suit land in favour of Mst. Bibi Afza appears to have been endorsed by the learned District Judge in his judgment impugned, herein, though no specific reference or discussionthereto was made by him therein. 13. It is not disputed before me, nor was this fact disputed before the learned Courts below, that Mst. Bibi Afza, the subsequent vendee, being a co-sharer in the suit land has right equal to first one which in order of preference was claimed by the pre-emptors. It is undeniable that if the original vendee has genuinely transferred the suit land in favour of Mst. Bibi Afza, the subsequent vendee, in recognition of her superior right of pre-emption; which she has not waived, before the expiry of one year from the date of his purchase then she would certainly defeat the pre-emptors who are at the most having rights equal to her. The plea urged by the pre-emptors, however, is that no genuine transfer in favour of Mst. Bibi Afza has taken place and the one shown to have been effectuated in her favour was fictitious, collusive,. Fraudulent and sham, besides having been effected after the institution of the pre-emption suits and much after the expiry of one year from the date of purchase of the suit land by the first vendee. It is, therefore, to be seen whether the plea so raised stands substantiated on the record. It is true that the learned trial Judge has held that the first vendee has transferred the suit land in favour of Mst. Bibi Afza vide the deed dated 25-3-1974 which date fell within one year of the purchase by the first vendee, but that deed was neither placed on
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the record of these suits, nor was it tendered In evidence and proved by the party claiming benefit out of it. In. These suits the pre-emptors have brought on record the copy of judgment (Exh. P.W.2/2) passed in favour of Mst. Bibi Afza in suit No. 604/1 and the copy of compromise deed (Exh. P.W.2/3) filed in that suit, which they have also assailed on the grounds already noted. In the compromise deed, no doubt, reference to an agreement deed dated 25-3-1974 has been made, but the question is whether that alone was enough to bind, or operate against, the persons who were not party to the compromise. As already noted, the present petitioners (pre-emptors) were not added as party in suit No. 604/1. It is a settled principle that a consent decree passed in favour of a person does not stand on a footing higher than a contract so far as its legal character is concerned, although it has affixed to it the seal of the Court. Such a decree would bind the parties thereto but A not the stranger, who may challenge it on any permissible ground. In order to bind the strangers in a suit instituted by them, in which they challenge such a decree and the basis thereof, the party benefitted by it is required by law to prove the factum of transfer reflected in the decree by producing the same quality and quantity of evidence as is required to prove a contract. Applying, this principle to the cases in hand, Mst, Bibi Afza, in pre-emption suits, was under legal duty to prove that the suit land had actually and genuinely been transferred in her favour by her husband. The first vendee, in recognition of her superior right, on 25-3-1974. As noted earlier, neither has the deed dated 25-3-1974 been placed on the record of these suits nor has its execution been proved by tendering legal evidence in regard thereto. When the deed dated 25-3-1974 was not brought on the record and was also not proved in evidence, it could not be said that the transfer in favour of Mst. Bibi Afza had taken place on 25-3-1974. The learned trial Judge was therefore not justified in accepting the transfer of the suit land in favour of Mst. Bibi Afza from 25-3-1974. This finding of the learned trial Judge having been based on evidence which was not available on the record of these suits, and the consent decree and the compromise forming basis thereof having not been proved in the manner already indicated and thus not constituting legal evidence whereon judicial finding could be based, is therefore not sustainable. Same are my observations about the finding recorded by the lean-nod District Judge, who while writing consenting note did not even refer to, or discuss, the evidence brought on the record. Even though I may persuade myself to accept the suggestion made by the learned counsel for Mst. Bibi Afza that since the copy of the deed dated 25-3--1974 executed in favuur of Mst. Bibi Afza has been placed -on the 'record of these revision petitions it may be looked into, yet I would not he able to use it and base finding thereon adverse to those against whom the deed was not tendered in evidence before the two. Courts below and who have all along been taking it to be a collusive, fictitious, sham and fraudulent transaction. 14. Having held in the-preceding paragraph that the agreement deed dated 25-3-1974,. Whereby according to the assertion of the learned counsel for the petitioners the land in suit was fictitiously transferred by the first vendee to the subsequent vendee, which according to the learned counsel for the respondents was an acknowledgement only of a past and completed transaction of sale purporting not by itself transferring the land or creating any right therein, having not been brought on the record of these suits and having not been proved by the beneficiary thereof in accordance with law, could not be used against the pre-emptors, there appears to me no necessity to give finding in respect of the nature of this deed and the legal effect which could flow from it respecting 'the rights of the parties. However, since arguments were raised before me by the learned counsel for the parties in respect of the nature of this document and the legal effect flowing therefrom, I would attend to these arguments in this paragraph. As already noted, two contentions were raised before me by the learned counsel for the petitioners in this regard. His first contention was that the agreement deed dated 25-3-1974 was a simple sale-deed executed by the first vendee for the transfer of the suit land in favour of the subsequent vendee for a sale consideration mentioned
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therein. This sale-deed, being compulsorily registrable and having not been registered, did not create any right in favour of the subsequent vendee, with the result that she did not acquire ownership rights in the suit land on 25-3-1974. His second contention was that the deed was also a sham, fictitious and fraudulent document. The contention of the learned counsel for the respondents, however, was that the transfer of the suit land by the first vendee in favour of the subsequent vendee had not taken place through this deed, which was written only to operate as an acknowledgement of the past transaction of sale effected between the parties to this document. For that reason, the learned counsel argued, the deed did not require registration and could be used as evidence for the purpose of ascertaining the fact that the subsequent vendee had become owner of the suit land on the date mentioned therein. A look at the deed, certified copy placed on the record of revision petition No. 198; would clearly show that it did not operate as an acknowledgement, of the past transaction of sale, as was urged by the learned counsel for the respondents,. But it was a sale-deed pure and simple and aimed at creating title in respect of the suit land in the subsequent vendee. Being unregistered, though requiring registration, it could not operate to create any title, by purchase of the suit, land in the subsequent vendee. 15. As to the fictitious, sham and fraudulent nature of I the aforesaid deed and the consent decree, it may be noted that the evidence brought on record clearly shows that the argument raised in this regard is not without substance. Before passing of the consent decree in favour of Mst. Bibi Afza and before she was brought on record of these suits in consequence thereof, the first vendee had in both the suits on 25-4-1974 submitted written statement contesting the suits. In those written statements he did not raise the plea or objection that he had already transferred the land in suit in favour .Of Mst. Bibi Afza, the subsequent vendee. If the deed dated 25-3-1974 had been genuine and in existence, then, in all probability, the first vendee would have mentioned this fact in the written statements filed by him after one month of the purported execution of this deed by him. The statement -recorded by Muhammad Younas, special attorney of the first vendee, throws no light on these points but the statement of Irshad Hussain Shah, the attorney of Mst. Bibi Afza, clearly shows (cross-examination portion) that on 25-3-1974 he and his father remained in their house and did not come on that date to Mansehra. In absence of any evidence on this fact on the record to the contrary, Mst. Bibi Afza could not go out of this statement. From this statement it follows that this deed shown to have been executed on 25-3-1974 .At Mansehra had in fact not been executed on that date. This conclusion finds further support from the statement (cross-examination portion) of Irshad Hussain Shah (V.W. 2) who admitted that Mst. Bibi Afza had paid Rs.12,000 to the first vendee as sale price of the suit land about 2 or 21 months before the institution of suit (by her), which was instituted on 8-11-1974. This would mean that by 25-3-1974 neither had the sale consideration been paid by her to the first vendee nor had any sale contract been, effected between them as according to this witness the first vendee was not prepared to transfer the land by mutation which had necessitated .Filing of suit by Mst. Bibi Afza. All this evidence, to which both the learned Courts below did not advert, together with the fact admitted by Irshad Hussain Shah (D.W.2) that the first vendee and the subsequent vendee are husband and wife living together in one house, lead to the conclusion that C the allegations made in the plaints of both the suits and substantiated at the trial by evidence led by the pre-emptors with respect to the transfer of the suit land in favour of the subsequent vendee are not untrue. No statement pertaining to the entry of the sale mutation or the contents thereof, nor .To the factum of transfer of the suit land by the first vendee in favour of the subsequent vendee was recorded by any Revenue Officer, in absence of which the mere entry of sale mutation did not constitute enough evidence to non-suit the pre- emptors, especially when the statement of Irshad Hussain Shah (U.W.2), already noted, ran counter to it. The conclusion, therefore, is that both the deed and the consent decree in favour of Mst. Bibi Afza, being sham, fictitious and fraudulent transactions, are not binding on the pre-emptors. The
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concurrent findings of the learned Courts below on this point, having been based on the material which was not available on this record,…
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