1983 PLP 3035 (CLC)

‑‑O. XXII, r. 3‑‑Limitation Act (IX of 1908), S. 5‑Abatement, setting aside of‑Petitioner filing application, after expiry of 90 days, for setting aside abatement‑Date of knowledge not fixed to satisfaction of Court‑Held, application cannot be deemed to be with in time.‑[Abatement]. Malik Muhammad Hayum for Appellants. Ch. Khalil‑ ur‑Rehman for Respondents. Date of hearing : 23rd October, 1974. Ibrahim respondent No. 2 vendee of the property in dispute died on 3rd November, 1971. A petition for bringing his legal representatives on record was submitted on 25th February, 1974. This petition is accompanied by another petition under section 5 of the. Limitation Act for condonation of delay.

2. Before considering the merits of the petition I may refer to the preliminary objection raised by the learned counsel for the respondent that there is no petition for setting aside the abatement notwithstanding the fact that this being an appeal arising out of a suit for possession of the disputed property in exercise of the right of pre‑emption, it (the appeal) abated to toto after the expiry of 90 days from the date of death. I do not agree with this contention, since in substance this is an application not only for bring ing the legal representatives of the deceased on the record but also for setting aside the abatement.

3. The ground for delay is given in paras. 3 and 4 of the petition. It is stated there that the deceased respondent was residing at village Sawanke which is at a distance of about 50 miles from the ordinary residence of the petitioners which is also the village where the property in dispute is situated. On the 16th February, 1974, it is explained, a mutation entry was put before the Tehsildar concerning an oral gift alleged to have been made by the sons of Ibrahim deceased, namely, Abdul Hamid; Nazir Hussain and Muhammad Sharif (who are now sought to be impleaded). At that time the sons of Ibrahim made a statement that Ibrahim had died on the 3rd November, 1971 and they had thus become owners of the land which was the subject‑matter of the gift. It was from this statement that the petitioner gathered knowledge about the death of Ibrahim since they were also present at that time in the Court of the Tehsildar. In the petition under section 5 of the Limitation Act also the same position was taken. Paragraph No. 4 of that petition is re‑produced below "That there was no mutual communication between the parties. The appellants in such circumstances could not know about the death of the respondent. It was only by accident that Karam Din appellant got the information of his death when the Tehsildar visited his village Kot Ranjit for setting certain mutations on 16th February, 1974. The appellant had to attend the Court of Tebsildar in connection with another mutation. At that time the three sons of Ibrahim deceased appeared before the Tehsildar in the presence of the petitioner Karam Din and made statement that their father Ibrahim had died on 3rd November, 1971, and they had become the owners of his land. They alleged that they have made an oral gift in favour of Muhammad Farooq, etc., and desired that the mutation to that effect might be sanctioned, but the case was adjourned for some other date. Certified copy of the proceedings of 16th February, 1974 is attached." The learned counsel for the petitioners relies upon P L D 1959 Lah. 500 in support of his plea that once a respondent is served it is not the duty of the appellant to remain in contact with him and if it is established that he did not have the knowledge of the death, that will be sufficient ground for setting aside the abatement. There can be no cavil with this proposition which is well‑established. In the present case, however, although it is established on record that the petitioners did not have any knowledge of the death of Ibrahim respondent, the evidence on record about the date when knowledge of death was obtained by the appellants is not credible. It is admitted that the petitioners belong :o the village in which the property in dispute is situated. Generally it is expected that the death of one landlord of that village may spread like wild fire in the village soon after the death or within some reasonable period. It is not, therefore, believable that the petitioners did not have that knowledge for about 3 years. They have fixed the time when they secured this knowledge and their case is that they gather ed this information from the statement made by the sons of Ibrahim before the Tehsildar that their father had died and so they had become owners of the property. The petitioners have, however, placed on record a copy of the mutation of gift which came up for consideration before the Tehsildar on the 16th February, 1974. In column No. 4 of the mutation, the names of the sons of Ibrahim appear as owners, which, means that inheritance muta tion of Ibrahim had already been attested. The learned counsel for the petitioners has placed a photostat copy of a certified copy of the inheritance mutation on the record which proves that it was attested on the 20th June, 1972. In these circumstances, when the names of the sons of Ibrahim were already there in the Jamabandi, there was no occasion for them to make a statement before the Tehsildar which is being attributed to them in paragraph No. 4 of the two petitions nor is expected that the Tehsildar would make such an inquiry. This is not the case of the petitioners that finding the sons of Ibrahim posing as owners of the property the petitioners had made an inquiry from them. In these circumstances I cannot rely upon the' affidavit of Karam Din petitioners about the incident dated' 16th February, 1974. Since the date of knowledge has not been fixed to 1,5 the satisfaction of this Court this petition cannot be deemed to be within time.

4. There is no ground for setting aside the abatement. I, therefore, dismiss both the petitions with costs. M. A. K. Petitions dismissed.