[Appellate Jurisdiction]

Present : MUHAMMAD AFZAL ZULLAH AND S. USMAN ALT SHAH, JJ

MUHAMMAD SADIQ
Versus
MUHAMMAD SAKHI, deceased, through FATEH MUHAMMAD

C.P.L.A. No. 271-R of 1989, dismissed on 24-6-1989

[On appeal from judgment and order of Lahore High Court, Rawalpindi Bench, dated 30-4-1989, passed in RSA No. 1337 ef 1970].

Civil Procedure Code, 1908 (V of 1908)-
— O. XXII R. 3-Deceased appellant—Legal representatives of— Non-impleadment of-Whether appeal abates-Question of— Contention that proceedings were rendered void and of no legal force for non-impleadment of legal representatives of deceased appellant within limitation period after his death—There is noth¬ing on record to show that legal heirs of deceased plaintiff were aware that appeal of latter was pending in High Court—Nothing on record to show that legal representatives, despite knowledge, did not care to apply for their impleadment—Held : High Court proceeded with hearing of appeal on merits and judgment made will have same effect as if it had been made before death of plaintiff. [Pp. iO& 11]A & B

Afaulvi Sirajul Haq, Senior Advocate, Supreme Court and Mr. Ejaz Muhammad Khan, AOR for Petitioner.
Respondent : N.R.

Date of hearing : 24-6-1989.

ORDER

S. Usman All Shah, J.—Leave to appeal has been sought by the petitioner in a pre-emption matter, against the acceptance of the regular second appeal of the respondent by the learned High Court.
The suit land measuring 11 kanals 1 marlas was owned by Muhammad alias Mandu and Muhammad Hussain. They sold the same to Muhammad Sadiq petitioner for an ostensible sale consideration of Rs. 12,000/- vide mutations dated 28-10-67 and 28-5-68, although according to Sakhi Muhammad plaintiff, Rs. 6,GOO/- was actually fixed and paid to the vendors. The plaintiff/respondent pre-empted the sale; claiming his superior right on the ground of collateral of the vendors. The defend-ant petitioner contested the suit. The learned trial Judge framed contesting issues on the pleadings of the parties and after recording evidence decreed the suit of Muhammad Sakhi plaintiff in his favour on payment of Rs. 7434/-. Muhammad Sadiq defendant filed appeal before the District Judge Jhelum who, vide his judgment dated 21-10-70, accepted his appeal, set aside the judgment and decree of the trial Court and dismissed the suit of Muhammad Sakhi respondent herein. Being aggrieved he went in regular second appeal before the High Court. A learned Single Judge, vide his judgment dated 30-4-1989, accepted the second appeal, reversed the judgment dated 21-10-70 of the District Judge and restored that of the trial Judge dated 21-7-69.
The learned counsel for the petitioner urged that the plaintiff died issueless on 23-7-1978 during the pendency of .the appeal before the High Court and no application by any one claiming to be his legal heir was submitted, therefore, the proceedings in this case before the High Court became void and of no legal force.
In order to appreciate the point raised by the learned counsel, we may make reference to the amendment introduced in Order XXII of CPC by Ordinance XII of 1972. Sub-rule (2) of Rule 3 of Order XXJ1 CPC before and after amendment may be reproduced ;—Previous Sub-rule (2)—Where within the time allowed by law no application is made given under Sub-rule (1), the suit shall abate so far as e deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
Present Sub-rule (2). Where within the time allowed by law no application is made or intimation given under Sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place.
A look at the unamended Sub-rule (2) will show that if no applica¬tion is made under Sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned. But this condition is not enunciated in the amending Sub-rule (2). Now as the appeal in the present case was pending in the High Court when Order XXII CPC was amended and as the plaintiff had already died, it cannot be argued that the appeal of the plaintiff abated in view of the fact that no application was made under Sub-rule (1) for the impleadment of his heirs within the period of limitation. Thus in view of the amending Sub-rule (2) of Rule 3 of Order XXU CPC, the question is whether the appeal of the deceased plaintiff in the present case was rendered infructuous because his legal heirs failed to apply for their impleadment in place of the plaintiff.
We have given our earnest consideration to this question, but we have not been able to subscribe to the contention of the learned counsel for the petitioner that the proceedings in the case were rendered void and of no legal force as the legal heirs of the plaintiff did not apply for their impleadment within the period of limitation after the death of the plaintiff. Correct that according to She amending Sub rule (2) of Rule 3 of Order XXII CPC, an application for the impleadment of the heirs of the deceased is to be made within the period of limitation, but unless the legal heirs are aware that their deceased predecessor has brought action in a particular Court, we do not understand as to how they should be made to suffer and the Court straightaway give decision against them. Now when the L.Rs. of the plaintiff were not impleaded within time allowed by the law i.e. 90 days, the suit will not be dismissed as abated and the Court may proceed with the suit notwithstanding the failure to implead the L.Rs. of the plaintiff. To similar effect is the case of death of defendant as laid down in Order XXII Rule 4 Sub-rule (2). The amending rule which provides that even in the absence of application having been made for impleading the L.Rs. within the prescribed time, order or judgment in the case may be pronounced in the suit or appeal and it will have the same force and effect as if it has been pronounced before the death.
It is to be seen that when there is no intimation or application made as required under Sub-rule (1) of Rule 3, the Court shall continue with the adjudication of the suit and the decree so passed will be valid and shall have the same effect as if the death has not taken place. However,

if it is brought to the notice of the Court that the plaintiff died and no body made application under Sub-rule (1), the Court can implead L.Rs. suo moto according to the list given under Order VII Rule 26, of the plaintiff accompanied with the plaint and similarly under Order VIII Rule 13 the list of the L.Rs. of the defendant attached with the written statement. The order to be made the decree is to be passed which will be binding on them unless set aside under Sub-rule (9). Hence no question of abatement could arise in view of the Law Reform Ordinance XII of 1972. The amending rule also applies to appeals and for the word plaintiff shall be held to include the appellant and the word defend¬ant to respondent and the word suit to appeal. Prior to the 1972 amendment when the sole appellant or respondent died, the appeal abated unless substitution was effected and decree so obtained was a nullity.

In the Limitation Act Article of 1972 which is as follows : –

Article 171

171 is also amended by Ordinance XII

By the legal representative of a deceased plaintiff or defendant for setting aside an order or judgment made or pronounced in his absence.

Sixty days

The date of the order or judgment when the death has taken place before 14th April, 1972 i.e. coming into force of Ordinance XII of 1972, the application in the case is to b» decided in the light of the old provision of Order XXII. Article 176-177 of the Limitation Act for impleading the L.Rs. shall apply.
There is nothing on the record to show that the legal heirs of the deceased plaintiff in this case were aware that the appeal of the latter was pending in the High Court. By going through the judgment of the High Court, there is nothing to show that an objection was raised on behalf of the petitioner that the legal heirs of the deceased plaintiff despite the fact that they had the knowledge that the appeal of their deceased predecessor plaintiff was pending in the High Court, they did not care to apply for their impleadment as his legal heirs in the pro¬ceedings and on that score the proceedings before the High Court were rendered void and of no legal effect. The petitioner was bound to establish this fact. For that purpose he was to apply before the High Court. The High Court was to issue notice to the heirs. The heirs were to rebut the stand of the petitioner and after hearing both the sides, the High Court was to give decision one wiy or the other. In the absence of such thing available on the record the question of bar of limitation agitated by the learned counsel before us will not arise. The moreso as this question was not raised even before the High Court. The High Court, therefore proceeded with the hearing of the appeal on merit, anc notwithstanding the death of the plaintiff/appellant the judgment made and pronounced will have the same force and effect as if it had been made or pronounced before the death of the plaintiff/appellant took place.
No other point was seriously urged. Leave to appeal is, therefore, refused and this petition is accordingly, dismissed.

(MBC) Petition dismissed.

2. Civil Appeal No. 1 of 1987
The brief facts are that on 13.2.1978 one Mangta Khan agreed to sell land measuring 5 Kanals 18 marlas situate in Mauza Darkali Mamoori, Tehsil Kahuta, District Rawalpindi to the appellant for a sum of Rs.25,000.00. Later on it transpired that the aforementioned agreement also included 3/4th share of the other co-sharers who had already sold it to Muhammad Rafique and others. Mangta Khan pre-empted this sale successfully and obtained a decree on 1.6.1978. Mangta Khan then showed his reluctance to honour the agreement to sell dated 13.2.1978, whereupon the appellant instituted a suit for specific performance which was decreed in his favour on 17.4.1980 and a mutation to this effect was sanctioned on 21.6.1980. This sale was pre-empted by the respondent alleging that the price shown in the impugned mutation was fictitious and that the land was sold for Rs. 12,000.00 and that he being the collateral of the vendor and being a co-sharer in the Khata had a superior right of pre-emption. The suit was defended wherein objections as to the limitation, valuation and misdescription were raised and on facts all allegations were refuted.
The pleadings of the parties resulted in the framing of as many as eight issues, of which issue No.l is presently relevant and is to the effect: “Whether the suit is time-barred?”
After recording the evidence produced by the parties, the learned trial Court, after examining issue No.l in detail, held the suit to be barred by time and dismissed the same on 27.3.1983. The appeal filed by the respondent was accepted by the learned Additional District Judge, Rawalpindi, on 15.9.1985 and he decreed the suit of the respondent on payment of Rs.25,000.00. Barkhurdar appellant then filed a revision petition in the High Court which was dismissed through the impugned order.
Civil Appeal No. 2 of 1987
Muhammad Anwar and others, appellants/vendees, purchased land measuring 505 kanals 5 marlas, situate in Mauza Hayat Bochra, Tehsil and District D.I.Khan, as per agreement to sell executed on 24.12.1976 and a sum of Rs.6,000.00 was paid to the vendor as earnest money and possession of the suit land taken over. Under the terms of the agreement it was stipulated that the remaining amount shall be paid to the vendor after he got permission from the Commissioner, D.I.Khan, and at the time of attestation of sale mutation. Later on, the vendor failed to honour the agreement and, therefore, the appellants were compelled to file a suit for possession through specific performance of the agreement to sell. The suit was compromised on 23.10.1977 and a decree was passed in favour of the appellants on payment of a sum of Rs.14,313.00 and a sale mutation was attested on 11.1.1981. This sale was pre-empted by the respondents through a suit brought on 7.1.1982 and after the contest the Civil Judge, D.I.Khan, decreed the suit of the respondents on 10.11.1984. The appeal and the revision of the respondents in the Court of the District Judge, DJ.Khan, and in the High Court were dismissed on 8.5.1986 and 7.10.1986, respectively.
3. Leave in both the cases was granted to consider the question whether in a suit for pre-emption, delivery of possession of the suit land if established to havebeen made under the agreement to sell is as good a delivery of possession as made under the sale and that limitation to file a suit for pre-emption will commence from the date of delivery of such possession.
4. We have heard the learned counsel for the parties at some length and perused the record.
5. In Civil Appeal No. 1 of 1987, the learned Additional District Judge, Rawalpindi, reversed the finding of the trial Court on the issue of limitation and decreed the suit of the respondent. This finding has been concurred with by the learned Single Judge.In Civil Appeal No. 2 of 1987, the suit of the respondents in respect of certain Khasra numbers was decreed by the trial Court. The appellants’ plea that they were in possession of the suit land prior to attestation of mutation (issue No.5) was decided in the negative for lack of evidence. This finding has been upheld in appeal by the District Judge, D.I.Khan, and by the High Court in revision.
6. In both the cases, as the record stands, the sales of the suit land were struck through sale agreements. These agreements did not materialise for one reason or the other, as a result of which the vendees moved the Courts of competent jurisdiction in suits for specific performance and got decrees on 17.4.1980 and 3.10.1977, respectively. Pursuant to the decrees, mutations were attested in Civil Appeal No.l of 1987 on 21.6.1980 and in Civil Appeal No.2 of 1987 on 11.1.1981. The present suits for pre-emption have been filed in Civil Appeal No.l of 1987 on 21.6.1981 and in Civil Appeal No.2 of 1987 on 7.1.1982. ! 8. The main controversy in both the appeals is whether the suits brought by ! the pre-emptors were within the time prescribed under sections 30 of the Punjab . and 31 of the N.W.F.P. Pre-emption Act 1913 and 1950, respectively.
9. The contention of the learned counsel for the appellant (in C.A.1 of 1987) is that both the appellate and the revisional Court in this case have misread the evidence and have thus wrongly held that the suit of the respondent was within time. In support of his contention he submitted that limitation to bring a suit for pre-emption would not run from the date of attestation of mutation (21.6.1980) but from the date of delivery of possession of the suit land which in the case in hand was 13,2.1978. Reference in this regard was made to the receipt Ex.D.2 through which certain amount was received by Mangta Khan vendor towards the sale consideration of the suit land and it was averred therein that the possession of the suit land had been delivered to the vendee/appellant. Reference was also made to the other two receipts which are Exs.D.3 and D.4. Besides the above, our attention was also invited to the statement made by Mangta Khan vendor at the trial wherein he admitted the delivery of the possession of the suit land to the vendee/appellant and also to the statement made by Muhammad Razzaq respondent in the trial Court wherein he admitted that the delivery of possession of the suit land was made to the appellant in 1979. In view of the above evidence, the learned counsel for the appellant submitted that the possession of the suit land was delivered to the appellant under the agreement to sell long before the date of attestation of mutation and thus the suit brought by the respondent was barred by time. As against the above, the learned counsel for the respondent supported the findings of the appellate and the revisional Court. The main thrust of his argument was that no right under the law, whatsoever, has been created in favour of the appellant because he has based his claim over the suit land on the strength of the agreement to sell only. He further submitted that even if the possession of the suit land had been delivered to the appellant, that delivery of possession was not ‘under the sale’ as provided for under section 30 of the Punjab Pre-emption Act, 1913, and, therefore, the date of limitation to bring a suit for pre-emption shall not run from the date of delivery of possession under the agreement to sell. Reliance was placed by him on two Indian authorities, viz., Tola Ram v. Lorinda Ram (I.L.R.1922 Lahore 261) and Madho versus Mt.Mehro (A.I.R. 1930 Lahore 33), and Muhammad Murad versus Pir Bakhsh and another (1984 C.L.C. 1274 (Lahore)). He further submitted that in- any case in the matter in hand the appellant has miserably failed to establish that possession of the suit land was delivered to him under the agreement to sell.
10. In Civil Appeal No.2 of 1987, Syed Safdar Hassain, the learned counsel for the appellants, submitted that the appellants had entered in physical possession of the land in dispute through a sale agreement executed on 24.12.1976 on payment of earnest money prior to the attestation of mutation. He submitted that the mutation could not be attested earlier because in the area in which the land in suit is situate, Chashma Right Bank Canal N.W.F.P. Ordinance is in force and permission of sale of land was required to be obtained from the Commissioner, D.I.Khan. Since the possession of the suit land was delivered to the appellants on 24.12.1976, the suit was barred by time.
11. The case has been examined by us as a whole. Under section 21 of the ‘ Punjab Pre-emption Act, a right to sue accrues to a person when the sale or foreclosure as been completed. Under section 30 ibid, a period of one year has < been prescribed to bring a suit for pre-emption. It shall either start from the date of attestation of sale Mutation or from the date on which the vendee takes under | the sale the physical possession of the land sold. The attestation of mutation or the delivery of physical possession is thus a notice to all persons to the effect that the former owner has relinquished all his ownership rights in favour of another person. It is no doubt true that an agreement to sell simpliciter is not a sale for purposes of pre-emption, but when that very agreement to sell is followed by delivery of physical possession of the land sold, it cannot, by any stretch of imagination, be said that the delivery of possession was not under the sale. Therefore, the first part of the argument of the learned counsel for the respondent is untenable. The authorities relied upon are distinguishable. 12. We have now to examine whether in the two appeals the appellants have established that they had obtained possession of the suit lands under the agreements to sell. In Civil Appeal No. 1 of 1987, the learned Single Judge while agreeing with the finding of the appellate Court, recorded his finding against the appellant in the following terms: "Learned counsel for the petitioner has contended that transfer of possession of l/4th share in the land, which was owned by Mangta Khan had been delivered to the petitioner on 13.2.1978 when the agreement to sell was executed by him after receiving the total price of the land amounting to Rs. 25,000/-. According to the learned counsel, respondent's suit for pre-emption was not within time insofar as the aforementioned l/4th share of the land was concerned. There is, however, no force in the above contention because the learned counsel has failed to show any evidence on the record that possession of any part of the suit land was delivered by Mangta Khan in 1978. According to the agreement to sell entered into by Mangta Khan, the entire land comprising the joint Khata was agreed to be sold to the petitioner. Out of this land 3/4th share had already been sold by his co-sharers. The bargain of sale being indivisible, it was inconceivable that possession of a part of the land could be delivered to the prospective vendee. It is not possible to accept the petitioner's contention that the sale of the suit land had in fact been completed in 1978 because 3/4th share in it was not available for transfer to the petitioner, as'it had already been sold to some other person. The fact that the respondent was obliged to institute a suit for specific performance of the agreement to sell dated 13.2.1978 also disproves the petitioner's contention that the sale of the disputed land had been completed when the agreement to sell in respect thereof was executed by Mangta Khan. The transaction of sale was completed after the passing of the decree in the suit for specific performance of agreement to sell on attestation of the mutation of sale on 21.6.1980. Respondent's suit to pre-empt the aforementioned sale instituted on 20.6.1981 was well within time. The finding of the learned Additional District Judge in favour of the respondent on the point of limitation is, therefore, unexceptionable." The various pieces of evidence relied upon by the learned counsel for the appellant when looked into in the light of the above have led us to the conclusion that the suit filed by the respondent was within time. Though in the document marked Ex.D.2 executed by Mangta Khan vendor in favour of the appellant on 13.2.1978, which is the first in series of documents executed by Mangta Khan, it has been mentioned that the possession of the land in dispute has been delivered to the appellant, but then in the iqramama executed by Mangta Khan on 31.7.1979 marked Ex.D.l has made a significant departure from the document Ex.D.2. Its perusal shows that Mangta Khan himself was not in possession of the suit land, therefore, the question of its delivery to the appellant did not arise. The fact that the possession of the suit land was not delivered to the appellant under the agreement to sell is further supported by a suit brought by the appellant against Mangta Khan vendor for possession of the suit land by specific performance in February 1980. In the proceedings, which culminated in a decree in favour of the appellant, Mangta Khan, on 15.3.1980, has stated:and on the same day Farzand Ali, the attorney of the appellant, deposed in the Court of Civil Judge, Kahuta, that: 25000/- gi 14000/- The only piece of evidence of which capital has been made by the learned counsel for the appellant in this case was the admission made by the respondent in the present suit that the delivery of possession of the suit land was made to the appellant in 1979. But then in view of the over-whelming evidence brought on the record to the contrary, we are clear in our mind that this admission which is wrong on a point of fact or is made in ignorance of a legal right has no binding effect oh the person making it. Reliance in this respect has been rightly placed by the learned Additional District Judge on the authority of this Court reported as Ahmad KJian versus Rasul Shah (P.L.D. 1975 S.C.311). 13* As for Civil Appeal No.2 of 1987, there is consistent evidence on the record that the possession of the suit land was with the tenants. The appellants have miserably failed to bring on the record that after the alleged agreement to sell, the tenants had attorned to them. The above factual position has not been controverted by the learned counsel for the appellants. 14. As a result of the above, we hold that in both the cases the possession of' the lands in dispute had not been delivered to the appellants/vendees under the jc agreements to sell and that the suits brought by the respondents/pre-emptors have rightly been held to be within time. The appeals are dismissed with costs. (MBC) Appeals dismissed

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