1994 PLP 971 (CLC)

(5) Whether. the defendant made any improvement over the suit land? If so, to what extent and for what value? O.P.D. (6) Whether the value for the purposes of court-fee and jurisdiction has been incorrectly fixed and the deficiency has not been made up within time? OPD. (7) Whether the plaintiff deposited less zar-e-panjam, if so, its effect? OPD (8) Whether the plaintiff and the Vakalatnama do not bear the thumb impression of the plaintiff; if so, its effect? OPD. (9) Whether the detail of the suit land given in the plaint is incorrect; if so, its effect? OPD. (10) Relief.

3. The appellant/plaintiff examined Naseer as P.W. 1, Muhammad Yamin as P.W.2, Ashiq Ali as P.W3, Khurshid as P.W.4 and she examined herself as her own witness as P.W.5. The documentary evidence produced by the appellant consists of copy of pedigree-table Exh.Pl, copies of mutations Exhs.P2 and P.3, copy of Khasra Girdawari Exh.P4 and copy of Jamabandi Exh.P.5.

4. In rebuttal the respondent/vendee examined Sheikh Muhammad Akhtar, Petition-Writer as D.W.1, Muhammad as D.W,2, Ghulam Muhammad as D.W.3 and he appeared himself as his own witness as D.W.4. The documentary evidence. produced by the respondent was a receipt Exh.D. 1, and copies of mutations Exhs.D.2 and D.3.

5. After appraising the evidence the trial Court under issue No.l held that it was established from pedigree-table Exh.Pl that the appellant was cousin of the vendor, therefore, had superior right of pre-emption as collateral and no evidence in rebuttal was produced by the respondent. Issue No.l, was, therefore, answered in favour of the appellant. Under issue No.2 after considering evidence of D.W.2 and D.W.3 and document Exh.Dl which was an agreement executed on 12-2-1975 it was held that the sale price of the land in fact was Rs.80,000 which was fixed in good faith and actually paid. It was answered in favour of the defendant. As a consequence of finding on issue No.2, issue No.3 was held to have become redundant. Under issue No. 5 the trial Court held that it was proved that an amount of Rs.31,408.20 was spent for improvement of land to which the defendant was entitled. Issue No.5, therefore, was answered accordingly. As regards issues Nos.4 and 6 to 9 it was observed that vide statement dated 7-9-1980 made by the learned counsel for the respondent these issues had not been pressed, therefore, they were answered against the defendant and in favour of the appellant. The suit was decreed in favour of the plaintiff for a 'consideration of Rs.1,11,408.20 through judgment dated 6-12-1980.

6. Against this judgment and decree both the parties filed two appeals separately. In appeal filed by the respondent he challenged the correctness of finding recorded on issues Nos.4 and 6 to 9 on the basis of statement made by his learned counsel for not pressing those issues. It was urged that the said statement was made by the learned counsel for the respondent erroneously and without instructions and consultation of the respondent. In appeal filed by the present appellant findings on issues Nos.2 and 3 regarding sale price as also issue No.5 regarding compensation awarded on account of improvement over the land was challenged. The lower appellate Court through impugned judgment dated 28-7-1981 reversed the finding of the trial Court on issue No.5 and held that the respondent failed to prove spending of any amount on the improvement of land. The appeal filed by the appellant to that extent stood accepted whereas regarding her objection against the findings on issues Nos.2 and 3 the same was dismissed.

7. In appeal filed by the respondent it was held that the finding of the trial Court on issue No.4 was not correctly recorded and that the suit was barred by time as a result of which the appeal was accepted and judgment and decree passed by the trial Court set aside and the suit dismissed through judgment dated 28-7-1981. This judgment and decree passed by the lower appellate Court has been assailed in this second appeal by the plaintiff.

8. Learned counsel for both the parties have taken me through the evidence, both oral and documentary, produced by the parties. Learned counsel for the appellant submitted that he would not challenge findings of both the Courts below on issues Nos.2 and 3 as regards sale price of the land determined by them, therefore, the appeal to that extent should be treated as having not been pressed. He, however, took strong exception as regards findings recorded by the lower appellate Court on issue No.4 which relates to question of limitation. He maintained that the learned counsel for the respondents made categorical statement on 7-9-1980 before the trial Court for not pressing issues Nos.4 and 6 to 9, therefore, the respondent was debarred under the law to challenge the finding recorded on the said issues by the trial Court on the basis of their statement in favour of the appellant and the question of limitation could not have been allowed to be agitated any further.

9. As regards the argument that the respondent was estopped from agitating against the findings of the trial Court on issue No.4 because the said issue had not been pressed by his learned counsel, the same in my view in the facts and circumstances of this case has no force. Findings on issues Nos.6 to 9 recorded by the trial Court could be challenged in appeal in the same manner as the findings on other issues recorded on the basis of evidence on the ground that the statement made by his learned counsel was erroneous being concession on a point of law and was not binding on him or that the same was made without his consent or instructions. The lower appellate Court was fully competent to allow the respondent to agitate the matter to examine the question on the basis of evidence already produced by the parties because the said statement was made after the parties had concluded the evidence. The discretion exercised by the lower appellate Court in this case does not suffer from any illegality or infirmity, therefore, the argument is repelled.

10. I now proceed to determine whether the finding recorded by the lower appellate Court under issue No.4 has been correctly recorded. Answer to the question whether the suit was barred by time depended on the determination of the question as to on which date the sale in this case was made and the possession of whole or any part of the land was delivered to the vendee and if so on which date and if not as to on which date mutation regarding the said sale was sanctioned by the Revenue Officer in the Revenue Record because under section 30 of the Punjab Pre-emption Act, 1913, in case of oral sale the period of limitation for filing suit to pre-emption was to start from the date on which the vendee takes possession of any part or whole of the land or from the date of sanction of mutation whichever was earlier.

11. Muhammad Khan D.W.2 stated that the land was sold for an amount of Rs.80,000 which was paid and one day after this oral sale transaction, a document described as agreement was executed which was produced in evidence as EXh.D

1. This document shows that it was executed on 12-2-1975, therefore, according to this witness the sale took place on 11-2-1975. He was supported by Ghulam Muhammad D.W.3 who corroborated the evidence of this witness. It -is not the case of the plaintiff that before the sale transaction respondent Alam Khan was in possession of whole or any part of the land in any capacity. According to Khasra Girdawari Exh.D1/C appended with the statement of net profits, respondent Alam Khan was recorded as person in possession since Rabi, 1976. The sale transaction having taken place in February, 1975, therefore, it was rightly held by the lower appellate Court that the possession of part of land changed hands thereafter and Alam Khan entered into possession thereof under the sale. Alam Khan when appeared as his own witness stated that he took over possession of the land after the said agreement and started cultivating the same with the tractor. The correctness of this part of his evidence, it appears, was not challenged in the cross examination by suggesting him that he did not start cultivating the land with tractor. 12-13. The argument is wholly fallacious. Since in the ownership column of the Jamabandi the name of the seller/vendor was to continue till the sanction of mutation in favour of the vendee, therefore, in column of possession since his name was to be entered which appears to have been shown in the capacity of a tenant. It is usually done by the Patwari in a case where the person mentioned in the ownership column of the Jamabandi is different from the person mentioned in the column of possession which does not detract from the factual position that at the spot physical possession of a part of land had been delivered to the vendee who started cultivating the same through tractor as stated by him immediately after the document of sale was executed on 11-2-1975, as such, under Section 30 of the Punjab Pre-emption, Act, the period of limitation had started from the said date and not from the date when the mutation was sanctioned, therefore, it was rightly held to be barred by time as admittedly from the date of taking over of possession of part of the land by the respondent, as held above he suit when instituted was barred by time.

14. Learned counsel for the appellant vaguely argued that before the Local Commissioner the respondent produced copy of a decree-sheet passed in favour of the respondent regarding ownership of land in dispute according to which the suit was filed on 11-2-1975 whereas agreement was executed on 12-2-1975 (Exh.Dl) which has been construed to be a sale, as such, the said decree appears to have been obtained on misrepresentation because on 11-2-1975 a day earlier to the said agreement no right of ownership could be claimed.

15. This argument has not impressed me. It is in the evidence of D.W.2 that the transaction of sale was completed a day earlier to the execution of document Exh.Dl, dated 12-2-1975, therefore, as a matter of fact the case of the respondent was that the sale transaction which was oral had been completed on i1-2-1975 which was reduced into writing on 12-2-1975.

16. The findings recorded by the lower appellate Court on issue No.4 for the foregoing reasons do not suffer from any illegality. The appeal has no force I which is accordingly dismissed with no order as to costs. H.B.T./M-1320/L Appeal dismissed.