1994 PLP 1645 (CLC)

Qazi Muhammad Saleem for Respondent. Dates of hearing: 22nd, 28th March, 25th and 27th, April, 1993. This revision petition arises out of a suit for possession through pre‑ emption filed by the respondent on 24‑5‑1974 in the civil Court Joharabad. The right of pre‑emption was claimed on the ground of being collateral of the vendor. The trial Court held that the respondent being a collateral of the vendor enjoyed superior right of pre‑emption but dismissed the suit on the ground of limitation vide the judgment and decree dated 15‑3‑1979. The respondent's appeal was allowed by the learned District Judge, Khushab on 17‑10‑1982 who held that the suit was within time. Consequently he decreed the suit in favour of the respondent.

2. The petitioner's learned counsel contends that although Mutation No.4104 was sanctioned on 15‑10‑1973 yet, the petitioner had purchased the land about 5 years earlier and was in physical possession of the same and had raised a residential Kotha thereon. He submits that the above facts were stated in the written statement which were not controverted in the replication filed by the plaintiff/respondents. He submits that Khasra Girdawari Exh. D.2 proves the petitioner's possession from Rabi, 1971 onwards. The entries in the Khasra Girdawari show that the property in dispute is Ghairmumkin Makan. He submits that the respondent/plailtiff was fully aware of the fact that the petitioners had purchased the disputed property through oral sale and was in physical possession of the same but he filed the suit long after the expiry of the period of limitation. He further submits that despite a direction by the trial Court, the plaintiff failed to pay the court‑fee amounting to Rs.198 within the specified time. On the other hand, the learned counsel for the respondent submits that the suit was filed within time. He explained that the plaintiff/respondent could know about the factum of sale only through sale deed, mutation or actual physical possession in pursuance of the sale transaction. He further submits that there was no evidence to show that the respondent had learnt about the oral sale. He came to know about the sale transaction only when mutation was attested in favour of the petitioner. As regards the payment of court‑fee he points out that the appellate Court had allowed time to deposit the court‑fee and the deficiency of Court‑fee was accordingly made good.

3. There is considerable force in the argument of the respondent's learned counsel that the respondent was not aware of any oral sale in favour of the petitioners. The Khasra Girdawari Exh.D.2 merely shows that Din Muhammad and Amir Abdullah petitioners were in possession of Ghairnumkin Makan but the capacity in which they occupied it was not stated. The disputed land belonged to Muhammad Yar who appears to have sold it to the petitioners on 28‑9‑1973 when the entry was made in the Roznamcha Waqiati. The entry reads as under:‑‑ Thereafter, Mutation No.4104 was sanctioned on 25‑10‑1973. The entry made in the Roznamcha Waqiati prima facie shows that the sale w ac made on 28‑9‑1973. The plaintiff had no other source of knowledge regarding the sale made in favour of the petitioners. When law limits the period for filing a suit for pre‑emption in respect of sale of agricultural land, it does not allow the limitation to run on the basis of secret transactions. That is why it provides that A the time will run either from the date of attestation of the mutation or the registration of the sale‑deed or when the purchaser takes under the sale the physical possession of the disputed land. There must be clear and cogent evidence to establish that the vendee ‑had obtained possession of the land in pursuance of the sale. In the present, case, there is no reliable evidence to establish that the petitioners had obtained possession of the land on the basis of the oral sale. It appears that initially the petitioners were mere licencees because in the Khasra Girdawari Exh. D2 they were not mentioned as Hissadars in Rabi. or Kharif 1971. It was only in Kharif 1974 that they were clearly mentioned as Hissadars. This is understandable because the factum of sale was got recorded in the Roznamcha Waqiati on 28‑9‑1973. The sale appears to have taken place on 28‑9‑1973 and thereafter the mutation was got attested on 25‑10‑1973. Had the oral sale taken place somewhere in 1968 as claimed by the petitioners then they ought to have been entered as Hissadars in the Khasra Girdawari pertaining to the years 1969 to 1973. However, there is no such entry for the period mentioned above. Again, had the oral sale been made in favour of the petitioners 7 years before recording of defence evidence in the Court, then the attestation of mutation in their favour would not have been delayed for such a long time. It is strange that the petitioners did not obtain any receipt for the alleged payment of Rs.2,600 to the vendor. In the absence of any writing regarding sale transaction and, payment of price, the petitioners would have been rather anxious to have the mutation attested in their favour promptly. It appears more probable that originally the petitioners were put in possession of a part of the disputed land as licensees and subsequently they purchased the same on 28‑9‑1973 when the factum of sale was entered in the Roznamcha Waqiati. In view of the above entries of the Khasra Girdawari and the Roznamcha Waqiati, the statements of Haji Ahmad Yar D.W.1, Ata Muhammad D.W.2 and Din Muhammad D.W.4 regarding the seven years old sale and delivery of possession to the petitioners cannot be accepted. Therefore, counting the period of limitation from 25‑10‑1973 when the sale mutation was attested, the suit was clearly g within time. Even if time is counted from 28‑9‑1973 when the entry regarding factum of sale was made in the Roznamcha Waqiati the suit is still within time. Therefore, I uphold the findings of the appellate Court on the question of limitation.

4. There is no serious dispute so far as the superior right of pre‑emption of the respondent is concerned. He is admittedly the collateral of the vendor and enjoys superior right of pre‑emption as against the petitioners/vendees. As regards the deficiency of court‑fee, the same was made good in compliance with the order passed by the appellate Court.

5. For the foregoing discussion, I find no merit in this revision petition which is dismissed leaving the parties to bear their own costs. H.B.T./D‑34/L Revision petition dismissed.