Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD KHAN VS Respondent: ABDUL KHALIQ KHAN
Court Name: Supreme Court of Pakistan Judge(s): Sheikh Anwarul Haq, Muhammad Haleem, Karam Elahi Chauhan Title: MUHAMMAD KHAN vs ABDUL KHALIQ KHAN Case No.: Civil Appeals Nos. 130 to 137. of 1977 Date of Judgment:1980-02-23 Reported As: PLD 1981 Supreme Court 153 Result: Accordingly dismissed
JUDGMENT
JUDGMENT KARAM E1.AH1B CHAUHAN, J.-This judgment and order will dispose of 8 Appeals bearing Civil Appeals Nos. 130/77 to 137/77. 2. Mst. Shahnaz Parveen (hereinafter called the vendor) was owner of agricultural land to the extent of 16879/440509 share measuring 843 kanals and 19 marlas in a joint Khata measuring 22025 kanals and 9 marlas. She sold her entire share to two vendees namely (i) Abdul Khaliq Khan (defendant/respondent) to the extent of 12000/440509 share and (ii) Mst. Sarwar Khatun to the extent of 4879/340509 share. The sale took place by means of a Mutation Bearing No. 3841 which was entered on 17-2-1974 and later attested on 2-3-1974. In the Mutation no doubt the shares of the two vendees were indicated as stated above, but the price was mentioned only in a lump sum of Rs. 3,05,500 without indicating its split up as to in what proportion it was contributed or paid by each vendee. 3. The concerned plaintiffs/appellants in the above appeals filed 8 separate suits pre-empting the above sale to the extent of the alleged possession of each plaintiff in his own suit with regard to a few specific fields as a tenant under paragraph 25 (3) (d) of the Land Reforms. Regula--petition 1972 (M. L. R. 115 of 1972 which laid down that "subject to the other provisions of this Regulation, a tenant shall have the first right of pre-emption in respect of the land comprised in his tenancy." The total area thus pre--empted in all above suits was about 603 kanals, 24 marlas which constituted only a part of the entire land sold. 4. As the other co-vendee, Mst. Sarwar Khatun was not impleaded as a defendant, and the suits were filed only against one vendee Abdul Khaliq, therefore, he took up the position that the suits were bad for non joinder of Mst. Sarwar Khatun, who was a necessary .Party without whose
---
## Page 2
impleadment the suits were for partial pre-emption and could not proceed. This objection prevailed and in this respect relying on Jawala Das and others v. Gopal Lal and others AIR 1925 Lah. 343the learned Civil Judge dismissed all the suits on 24-2-1976. 5. The plaintiffs/appellants filed 8 separate appeals but without any success as the same were dismissed by the learned District Judge by a common judgment on 28-6-1976. 6. The appellants then filed 8 separate second appeals in the High Court being R. S. As. Nos. 797 to 804 of 1976, which also met the same fate and were dismissed on 25-10-1976. 7. The appellants have filed 8 appeals in this Court by special . Leave which was granted on 23-2- 1977, to consider the question of the maintain--ability of the suits above-mentioned and the period of limitation applicable thereto. 8. The first point argued by the learned counsel for the appellant was that since the share of each vendee was specifically stated in the mutation, therefore it was not one joint sale, but in fact two sales in favour of two persons, and if out of those two vendees, the plaintiffs filed suits only against one vendee for pre-emption with regard to only that area of which they were the tenants, their suits could not be considered as defective for non joinder of the other co-vendee Mst. Sarwar Khatun. The contention has no merit. It has been held by this Court in Abdullah and 3 others v. Abdul Karlin and others PLD 1968 SC 140that to find out whether such a sale is divisible, the Court is to see two things viz. (i) whether the share of each vendee is specified and (ii) whether the proportion of price contributed or paid by each vendee is indicated separately. If any of these two, ingredients is lacking, then the sale remains one joint indivisible sale and a suit for pre-empting the share of only one vendee without impleading the other vendee is not maintainable because in the absence of (confining ourselves to the facts of the present case) specification of separate sale price paid by each vendee, the unity of such a sale cannot be broken, and a suit for partial pre- emption with regard only to a part of the land cannot be maintained. 9. When confronted with the above precedent the learned counsel submitted that the principle laid down and the law declared by this Court therein no doubt was binding on him, but his contention was that a mutation was not the only document from which it was to be gathered as !o in which proportion the price was paid by each of the joint vendee. He submitted that a Court could also take note of other material which may be produced before it by the parties concerned, and proceeding to present his case in this manner, he referred us to the statement of the patwari and certain entries in the khasra girdawaris for Rabi 1974 and Kharif 1974 Exh. P/1 and Exh. P/2 respectively) wherein qua the- land in dispute only Abdul. Kbaliq defendant ..Was .Shown as. owner. .Which according to him, indicated that land was taken by him in the aforasaid joint sale and as such the plaintiffs were justified in impleading him as: the only sole defendant and could conveniently omit to implead Mst.. Sarwar Khatun. This plea was rejected by the High Court on the ground that the khasra girdawaris obviously being pursuant to the main mutation, it was the latter which was to be looked into for seeing the jointness or divisibility) of the sale, and the khasra girdawaris did not indicate as to on what basis the entries therein were made, therefore, they could not detract anything from the joint ownership of the two vendees in the whole land, with the result that the unity could not be split up, and a suit for pre-emption even though confined to allegedly tenanted land without impleadment of the other co-vendee was bad for non joinder of a necessary party as she was equally as much owner thereof as the defendant/vendee. We find nothing wrong with the view taken by the High Court and to reiterate as there is nothing on the record of show the specification of price, contributed by each vendee separately therefore the plea of the kind raised by the learned counsel, we must say cannot improve the situation for him. The plea raised even otherwise has no force on factual plane because it was plaintiffs own case as pleaded in ground No. 1 in their memorandum of appeal in the High Court, which so far as relevant stated that " the land in dispute formed part of a joint khata comprising thousands of kanals of
---
## Page 3
land. Sale to the vendees/respondents was of a share of a joint khata and no particular Khasra numbers were sold to them". In the face of this plea (which they themselves raised though in another context) the point now sought to be put up cannot succeed. Learned counsel submitted that it was possible that the land and fields in dispute may have been obtained by the defendant as a result of a private partition between him and Mst. Sarwar Khatun. The plea raised is merely based on conjectures and the High Court rightly refused to accept it. We further note that no such plea was taken by the plaintiffs in their respective plaints. 10. The next point argued by the learned counsel for the appellants was that even if his clients had omitted to implead the other co-vendee Mst. Sarwar Khatun, the trial Court should have itself impleaded her. The contention again has no force. This is a case of pre-emption, and it was plaintiffs to choose as to which land they would like to pre-empt and against which vendee to which extent, in" which form and on which basis. If on! Of two joint vendees, they picked up only one vendee, and a particular piece of land, which they considered has been purchased by that vendee exclusively, the choice was entirely their own and a civil Court itself could not ask the pre-emptors to also pre-empt the sale or land belonging to another co-vendee, if they themselves did not choose to do so. The plaintiffs cannot cover their mistake and omission by thrusting the same on the civil Courts. If they so desired they could have moved a formal application in writing in the trial Court for amending their plaints, and impleading Mst. Sarwar Khatun, whigh however, they did not do, and as such, must now face the consequences. Learned counsel conceded that his clients had not filed any application in writing at any stage of the case before any of the Courts below. However, he submitted that an oral application was made during the arguments before the learned District Judge and even otherwise indications are available in the judgments of the Courts below that they were alive to the question of impleadment of Mst. Sarwar Khatun, but as according to them, limitation for such a suit was one year, which they observed had run out, therefore, they did not proceed in this matter any further. We must say that the plea of oral application has not impressed us and therefore we cannot believe or take note of it especially in a case of pre-emption where a decision on the subject could not have been taken without hearing or issuing notice to the party concerned. 11. It was then argued that the finding of the High Court that the period of limitation for suits of the present kind was one year from the date of the attestation of mutation under section 30 of the Punjab Pre--emption Act I of 1913 was not correct and as such the consequent observa--tions for the non-impleadment of Mst. Sarwar Khatun on the ground that period of limitation against her had run out were not correct. Learned counsel submitted that the present suits were governed by residuary Article 120 of the Limitation Act IX of 1908 which provided a period of six years from the date of the accrual of the cause of action namely 17-2-1974 which was the date of sale. Section 30 of the Punjab Pre-emption Act reads as follows;-- "Section 30. Limitation.-In any case not provided for by Article 10 of the Second Schedule of the Limitation Act, 1908, the period of limitation a suit to enforce a right of pre-emption under the provisions of this Act, shall, notwithstanding anything in Article 120 of the said Schedule, be one year :- (1) In the case of a sale of agricultural or of village immovable property from the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of Mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical posses--sion of any part of such land or property, whichever date shall be the earlier ; ' (2) In the case of foreclosure of the right to redeem village immovable property or urban immovable property. from the date on which the title of the mortgagee to the property becomes absolute ;
---
## Page 4
(3) In the case of a sale of urban immovable property ; from the date on which the vendee takes under the sale physical possession of any part of the property." 12. Learned counsel argued that section 30, as its wording shows, would apply to a suit which may have been filed "to enforce a right of pre--emption under the provisions of- this Act" namely the Punjab Pre-emption Act. He submitted that the right of pre-emption (or to be more precise the first right of pre-emption) was given to the tenants of agricultural land by the Land Reforms Regulation [115 of 1972] with effect from Kharif 1972, and as such the present suits of the tenants with regard to land comprised in their tenancy were not suits" to enforce a right of pre-emption" under the Punjab Pre-emption Act, and as such section 30 was not applicable to these suits. We have given our anxious consideration to the plea raised but as we shall presently show it has no merit. 13. Section 3 of the Punjab Pre-emption Act is headed as "definitions" and defines terms like, agricultural land, village immovable property, urban immovable property, member of an agricultural ;tribe, and sale and further states that any expression which is defined by section 3 of the Punjab Land Revenue Act shall subject to the provisions of this Act have the meaning assigned to it in the said section. For the present we shall here quote only the definition of the word "sale" which according to the Punjab Pre--emption Act "shall not include (a) a sale in execution of a ' decree for money or of an order .Of a Civil, Criminal or Revenue Court or a Revenue Officer ; (b) the creation of an occupancy tenancy by 4 landlord, whether for consideration or otherwise : section 4 is headed as "Right of pre--emption : application of", and lays down that "the right of pre-emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such property only in the case of sales or of foreclosures of, the right ' to redeem such property. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale". Section 6 is headed as "Exists in agricultural land and village immovable property" and states that "A right of pre-emption shall exist in respect of agricultural land and village immovable property, but every such right shall be subject to all the provisions and limitations in this Act contained." Section 8 which is headed as "Provincial Government may exclude areas from pre-emption" lays down. That "Except as may otherwise be declared in the case of any agricultural land in a notification by the Provincial Government, no right of pre-emption shall exist within any Cantonment. (2) The Board of R-,venue may declare by notification that in any local area or with respect to any-late or property or class of land or property or with respect to any sale or class of sales no right of pre-emption or only such limited right as the Board of Revenue may specify shall exist." Section 9 deals with "Exclusion of pre-emption in respect of certain alienations", and states that "Notwithstanding anything in this Act, a right of pre-emption shall not exist in respect of any sale made by or to the Government or by or to any local authority or to any company under the provisions of Part VII of the Land Acquisition Act, 1894 or in respect of any sale sanctioned by the Deputy Commissioner under section 3(2) of the Punjab Alienation of Land Act, 1900." Section 11 deals with "Sum deposited by pre-emptor not to be attached" and lays down that "No sum deposited in or paid into Court by a pre-emptor under the provisions of this Act or of the Code of Civil Procedure shall, while it is in the custody of the Court, be liable to attachment in execution of a decree, or order of a Civil, Criminal or Revenue Court or of a Revenue Officer, "section 13, is headed as "Joint right of pre-emption how exercised" and states that "Whenever according to the provisions of this Act, a right of pre-emption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly, and, if not exercised by them all jointly, by any two or more of them jointly, and, if not exercised by any two or more of them jointly, by them severally. "Section 14 deals with "limit of exercise of right in respect of land sold by members of an agricultural tribe" and lays down that "No person other than a person who was at
---
## Page 5
the date of sale a member of an agricultural tribe in the same group of agricultural tribes as the vendor, shall have a right of pre-emption in respect of agricultural land sold by a member of an agricultural tribe". Section 15 is headed as "Person in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property" and states that "Subject to the provisions of section 14, the right of pre-emption in respect of agricultural land and village immovable property shall vest- "(a) where the sale is by a sale owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-shares jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold ; (b) where the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly ; Firstly.-In the lineal descendants of the vendor in order of succession ; Secondly.-In the co-sharers, if any, who are agnates, in order of succession ; Thirdly.-In the persons, who not included under firstly or secondly above, in order of succession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold; Provided that in case where the sale is by a Muslim, the firstly and secondly shall be inapplicable, and the thirdly shall read as follows :- Thirdly.-In the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold., Fourthly -in me co-sharers ; (c) If no person having a right of pre-emption under clause (a) or clause (b) seeks to exercise it- Firstly.-When the sale affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietor, and when the inferior right is sold, in the superior proprietors ; Secondly.-In the owners of the Patti or other sub-division of the estate within the limits of which such land or property is situate ; Thirdly.-In the owners of the estate Fourthly.-In the sale of the proprietary right in such land or property, in the tenants (if any) having rights of occupancy in such land or propriety ; Fifthly.-In any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situated. Explanation.-In the case of sale by a female of land or property to which she has succeeded on a life tenure through her husband, son, brother, or father, the word `agnates' in this section shall mean the agnates of the person through whom she has so succeeded." Section 17 deals with "Exercise of right of pre-emption where several persons equally entitled" and lays down that "Where several pre-emptors are found by the Court to be equally entitled to the right of pre-emption", then the said right shall be exercised :- "(a) If they claim as co-sharers, in proportion among themselves to the shares they already hold in the land or property ; (b) If they claim as heirs, whether co-sharers or not, in proportion among themselves to the shares in which but for such sale they would inherit the land or property in the event of the vendor's deceased without other heirs ; (c) If they claim as owners of the estate or recognised sub-division thereof, in proportion among themselves to the shares which they would take if the land or property were common land in the estate or the sub-division, as the case may be ; (d) If they claim as occupancy tenants, in proportion among themselves to the areas respectively held by them in occupancy right ; (e) In any other case, by such pre-emptors in equal shares."
---
## Page 6
Section 19 is headed as "Notice to pre-emptors" and states that "When any person proposes to sell any agricultural land or village immovable property or urban immovable property, or to foreclose the right to redeem any village immovable property or urban immovable property, in respect of which any persons have a right of pre-emption, he may give notice to all such persons of the price at which he is willing to sell such land or property or of the amount due in respect of the mortgage, as the case may be. Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property or any part thereof is situate, and shall be deemed sufficiently given if it be stuck up on the choupal or other public place of the village, town or place in which the land or property is situate." Section 20, deals with "Notice by pre-emptor to vendor" and states that .- "The right of pre-emption of any person shall be extinguished unless such person shall, within the period of three months from the date on which the notice under section 19 is duly given or within such further period, not exceeding one year from such date, as the Court may allow, present to the Court a notice for service on the vendor or mortgagee of his intention to enforce his right of pre- emption. Such notice shall state whether the pre-emptor accepts the price or amount due on the footing of the mortgage as correct or not, and if not, what sum he is willing to pay. When the Court is satisfied that the said notice has been duly served on the vendor or mortgagee, the proceedings shall be filed." Section 21 deals with "suit of pre-emption" and provides that :- "Any person entitled to a right of pre-emption may, when the sale or foreclosure has been completed, bring a suit to enforce that right." Section 21-A states that "Any improvement, otherwise than through inheritance or succession, made in the status of a vendee defendant after the institution of a suit for pre-emption shall not affect the right of the pre- emptor plaintiff in such suit." Section 22 deals with "plaintiff may be called on to make deposit or to file security" and lays down that "(1) In every suit for pre-emption the Court shall at, or at any time before, the settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court, exceed one-fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required, of a sum not exceeding such probable value within such time as the Court may fix in such order. (2) In any appeal the Appellate Court may at any time exercise the powers conferred on a Court under subsection (1). (3) Every sum deposited or secured under subsection (1) or (2) shall be available for the discharge of costs. (4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in subsection (1) or (2), his plaint shall be rejected or his appeal dismissed as the case may be. (5) (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed. (b) If any security so furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security or to increase the security, as the case may be, within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed." (5) The estimate of the probable value made for the purpose of subsection (1) shall not affect any decision subsequently come to is what is the market value of the land or property." Section 23 deals with "Special conditions relating to sales of agricultural land lays down that "No decree shall be granted in a suit for pre-emption in respect of the sale of agricultural land until the
---
## Page 7
plaintiff has satisfied the Court. "(a) That the sale in respect of which, pre-emption is claimed is not in contravention of the Punjab Alienation of Lands Act, 1900 ; and (b) That he is, not debarred by the provisions of section 14 of this Act from exercising the right of pre-emption." Section 25 deals with "Fixing of price for purposes of suit in case of sale" and lays down that "(1) If, in the case of a sale, the parties are not agreed as to the price at which the pre-emptor shall exercise his right of pre-emption, the Court shall determine whether the price at which the sale purports to have taken place has been fixed in good faith or pain, and if it finds that the price was not so fixed or paid, it shall fix as the price for the purposes of the suit, the market value of the land or property. (2) If the Court finds that the price was fixed in good faith or paid, it shall fix such price as the price for the purposes of the suit; Provided that when the price at which the sale purports to have taken place represents entirely or mainly a debt greatly exceeding in amount the market value of the property, the Court shall fix the market value as the price of the land or property for the purposes of the suit, and may put the vendee to his option either to accept such value as the full equivalent to the consideration for the original sale or to have the said sale cancelled, and the vendor and vendee restored to their original position." Section 26 deals with "Fixing of price for purposes of suit in case of foreclosure" and states that :- "If in case of a foreclosure the parties are not agreed as to the amount at which the pre-emptor shall exercise his right of pre-emption the Court shall determine whether the amount claimed by the mortgagee is due under the terms of the mortgage and…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.