Second Appeal in a Haq Shufa Case

JUDGMENT SHEET
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
RSA No.182/2011
(Lehrasib Khan vs. Umeed Ali etc.)
JUDGMENT
Date of Hearing: 05.03.2012
Appellant by: Ch. M. Lehrasib Khan Gondal, Advocate.
Respondents by: Sh. Naveed Shehryar, Advocate.

CH. SHAHID SAEED, J:- This Regular Second Appeal has been instituted against judgment and decree dated 26.09.2011 passed by learned Additional District Judge, Mandi Baha-ud-din who dismissed the appeal of the appellant and maintained the judgment and decree dated 12.03.2011 passed by learned Civil Judge, Mandi Baha-ud-din whereby she decreed the suit filed by respondents for possession through pre-emption.
2. Briefly stated the facts leading to the filing of the instant appeal are that the respondents filed a suit for possession through pre-emption with the averments that the land, fully described in the plaint, was owned by one Iftikhar Ali s/o Noor Hussain to the appellant against consideration of Rs.12,00,000/- but to defeat the right of pre-emption, fictitious sale price of Rs.20,00,000/- was shown in the registered sale deed. On 30.06.2008 at about 6:00 p.m. in the house of Ammar Abbas alias Ali Raza, one Mubarak Ali informed the respondents in presence of Muhammad Sajjad that the land in dispute hand been sold out to the appellant. The respondents-
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plaintiffs immediately announced that they have the superior right to pre-empt the sale on the basis of Shafi Sharik, Shafi Khaleet and Shafi Jar and will exercise their right of pre-emption. On 10.07.2008, notice talb-i-ishhad was sent through registered post AD but the appellant did not accede to their demand.
3. Keeping in view divergent pleadings of the parties, the learned trial court framed as many as eight issues including that of relief. After having recorded oral as well as documentary evidence adduced by the parties, the learned trial court decreed the suit vide judgment and decree dated 12.03.2011. The appeal preferred thereagainst by the appellant was dismissed by learned Additional District Judge, Mandi Baha-ud-Din vide judgment and decree dated 26.09.2011. Hence this RSA.
4. Learned counsel for the appellant has emphasized more on the point that under section 30(a) of Punjab Pre-emption Act, 1991, the limitation starts from registration of sale deed which was got registered on 27.10.2008 and not prior to that but as per version of the respondents-plaintiffs, they on receiving information about the sale on 30.06.2008 performed talb-i-mawathibat immediately, sent notice talb-i-ishhad on 10.07.2008 and filed the instant suit on 25.10.2008. As per learned counsel for the appellant, since all the activities purported to have been done by the plaintiffs are prior to registration of sale deed when no cause of action had in fact accrued to them, as such, the suit being premature was not maintainable and liable to be dismissed. Learned counsel further submits that the
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learned courts below have ignored this as well as other legal aspects of the case which resulted into miscarriage of justice. He prays that the instant RSA be allowed, the impugned judgments and decrees be set aside and the suit of the respondents be dismissed.
5. On the other hand, learned counsel for the respondents vigorously opposes this Regular Second Appeal. He argues that a registered document shall operate from the time from which the same would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. He further argues that since possession of the suit property had been delivered to the appellant before 30.06.2008, therefore, the talbs performed and suit instituted before registration of the sale deed are valid and in accordance with law. He avers that the instant RSA being without any substance merits dismissal.
6. I have heard the arguments advanced by learned counsel for the parties and also perused the perused.
7. The only point put before this Court for decision by both sides is whether talbs can be performed and a pre-emption suit can be filed before registration of sale deed or not.
8. On 30.06.2008 at 06.00 p.m., the informer Mubarak Ali informed the respondents-plaintiffs that the suit property had been sold out to the appellant by Iftikhar. The respondents-plaintiffs at once announced to exercise their right of pre-emption. On 10.07.2008, they sent notice talb-i-ishhad to the appellant conveying their intention to purchase the demised land. PW-2 Umeed Ali,
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PW-3 Muhammad Sajjad, PW-4 Ammar Abbas and PW-5 Mubarak Ali (informer) appeared before the court and reiterated the contents given in the plaint regarding attainment of knowledge and performance of talbs. Despite lengthy cross-examination, the appellant side has failed to put any dent in their evidence. PW-1 Rizwan Abbas (Postman) also appeared before the court and deposed that he went to deliver notice talb-i-ishhad to the appellant who refused to receive the same. On the other hand, the appellant has not disputed the fact that the notice talb-i-ishhad was sent to him on 10.07.2008. After perusing the record, I am of the considered view that talb-i-mawathibat and talb-i-ishhad were performed in accordance with law.
9. The plea taken by the appellant before this Court is that since the sale deed was registered with the Sub-Registrar Mandi Baha-ud-din on 27.10.2008, as such, the talbs performed prior to registration of the sale deed are of no consequence and the suit being premature was liable to be dismissed. His more stress is on section 30(a) of the Punjab Pre-emption Act, 1991 which provides that the period of limitation for a suit to enforce a right of pre-emption shall be four months from the date of the registration of the sale deed.
10. It is evident from registered sale deed Exh. P-6 that the stamp papers were purchased on 28.06.2008 and the statements of the parties were recorded therein through a local commission on the same day, i.e. 28.06.2008 to the effect that the vendor has received the consideration amount and also delivered the possession of the
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property which means that the sale has taken place on 28.06.2008 when the vendor after having received the consideration amount delivered the possession of the property to the appellant-vendee, however, they, in order to defeat the right of pre-emption, did not get registered the sale deed till 27.10.2008. In the circumstances of the case, limitation will start from the date when the appellant being vendee has obtained physical possession of the property and the limitation will not wait to start from date when the document is registered. Under section 13 of the Punjab Pre-emption Act, it has unambiguously stated that the pre-emptor has to act forthwith and not to wait even for a moment while making immediate demand after attaining knowledge of the sale to which he wishes to pre-empt and also take further steps within the prescribed time limit. If the pre-emptor had waited for registration of sale deed after attaining knowledge of the sale having taken place on 28.06.2010, he could not prove that the immediate demand had been made by him as required under section 13 of the Punjab Pre-emption Act, 1991 and would definitely have lost his case on this score alone. I am of the considered view that talbs, after gaining knowledge, can be performed in accordance with law after the sale has in fact taken place by way of having received the consideration money and delivered possession of the property even if the sale deed has not been registered at that time. So, the talbs performed by the plaintiffs before registration of sale deed fulfill the requirements of Section 13 of Punjab Pre-emption Act, 1991 as the registered document shall
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operate from the time from which the same would have commenced to operate if no registration thereof had been required or made and not from the time of its registration. The cause of action accrued to the respondents-plaintiffs when their right was infringed by signing of document by vendor and the vendees. If an agreement is executed but not got registered for a long time, it does not mean that the person aggrieved by such transaction will be deprived to agitate his right, whatsoever, provided by law. Specifically, date, time and place are crucial in pre-emption suit and under section 13 of Punjab Pre-emption Act, a jumping demand is required for performance of talb-i-mawathibat and if a pre-emptor does not disclose his intention of exercising his pre-emptive right after attaining knowledge of the sale he is going to pre-empt, he would be ousted as having not fulfilled the requirement of immediate demand as mentioned in Section 13 of the Act ibid. Reliance is placed on the dictums laid down by the Hon’ble Apex Court in case Fazal Karim through Legal Heirs and others vs. Muhammad Afzal through Legal Heirs and others (PLD 2003 SC 818).
11. Furthermore, there are concurrent findings of law and fact against the appellant which cannot be interfered with until and unless there is some illegality, irregularity, misreading or non-reading of evidence has been committed by learned courts below. No interference is called for.
12. The epitome of whole discussion is that after attaining knowledge of having sold out the property in dispute, the plaintiffs
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were required to act promptly as provided in Section 13 of the Punjab Pre-emption Act and perform talbs accordingly which has rightly been done by the plaintiffs as there was no need to wait for registration of the document which commenced to operate from the time from which the same would have commenced to operate if no registration thereof had been required or made, i.e. 28.06.2010. Resultantly, the instant RSA is devoid of any force, hence dismissed.
(Ch. Shahid Saeed)
Judge