1995 PLP 172 (CLC)

‑‑‑‑Principle‑‑‑Application‑‑‑Where respondent acknowledged title of appellant in the suit land and obtained its lease from him under a duly executed lease deed, he would not be allowed to take contradictory stands and principle of approbation and reprobation would apply with full force. (e) Punjab Pre‑emption Act (I of 1913)‑‑‑ ‑‑‑‑S. 15‑‑‑Civil Procedure Code (V of 1908), S. 100‑‑‑Suit for pre‑emption‑‑ Trial Court dismissed such suit on ground that plaintiff having recognized ownership of defendant (vendee) by execution of lease deed in his favour was estopped to challenge his title‑‑‑Bar of limitation was another ground for dismissal of plaintiff's suit for pre=emption ‑‑‑First Appellate Court however, accepted plaintiffs appeal and decreed his suit for pre‑emption ‑‑‑Validity‑‑ Findings of First Appellate Court were neither in accord with material on record nor in accordance with precedents‑‑‑Findings of First Appellate Court were, thus, set ,aside and those of Trial Court were restored in circumstances. Muhammad Rasheed Chughtai for Appellant. Allah Wasaya for Respondent. Date of hearing: 24th October, 1994. Land measuring 120 Kanals situate in the revenue estate of Chak No.40/B‑TDA, Teh il and District Bhakkar was purchased by Abdul‑Ghafoor the appellant on 2166, through an oral sale which was reported to the Patwari Halqa and was recorded at serial No. 421 of the Report Roznamcha Waqaati. He came into possession of the said land on the 'same date. Subsequently vide a lease deed executed on 15‑9‑1966 which is Exh. D8 on the record of this case, Malik Fateh Sher the respondent before this Court, obtained the aforementioned land as a lessee from the appellant, and acknowledged in the said lease deed: that it is the appellant who is the owner of the land which is subject‑matter of the lease and that he will deliver possession to him on expiry of the lease period. On 29‑7‑1967 a mutation of sale No. 47 Exh.D1 was sanctioned on the basis of the oral sale in favour of the appellant. The respondent filed a title suit against the appellant challenging therein the mutation of sale referred to above. This suit was filed on 8‑2‑1969 and was dismissed by the learned Civil Judge II Class, Bhakkar vide judgment and decree dated 11‑1‑1971 Exh.D7 on the ground that the appellant having recognized the ownership of the respondent by execution of lease deed in his favour is estopped to challenge his title.

2. Before the filing of the aforementioned suit respondent also filed a suit for possession to pre‑empt the aforementioned sale. This suit has been contested by the appellant inter alia on the grounds that the same is barred by time as the period of one year prescribed for filing of pre‑emption suit shall commence w.e.f. the date of delivery of physical possession under the sale which in this case was taken on 21‑8‑1966 and was transferred to the respondent in pursuance of a lease deed executed by him on 15‑9‑1966.

3. On the basis of the pleadings of the parties learned trial Court settled certain issues including the issue of limitation and after recording of evidence in the suit vide judgment and decree dated 18‑1‑1973 dismissed the suit. Aggrieved of this judgment and decree the appellant filed Regular First Appeal in the District Court of Mianwali, which has been accepted by learned District Judge, Mianwali and the ‑suit has been decreed vide judgment and decree dated 22‑10‑1973; hence this second appeal has been filed by

4. Mr. Muhammad Rasheed Chughtai, Advocate, learned counsel for the appellant has contended that the judgment of variance rendered by the learned first appellate Court is based upon misreading of evidence and omission to take into consideration material portions thereof, and is also not in consonance with law declared in case of Mir Haji Khan and others v. Mir Aijaz Ali and 2 others (PLD 1981 SC 302), hence the same is illegal and is liable to be set aside. Elaborating his arguments learned counsel has referred to the documents Exh. D1, Exh.D8 and Exh.D7 and has contended that it stands clearly established that the sale in this case had taken place prior to the date of attestation of mutation, on 21‑8‑1966, in pursuance of which sale the physical possession had been delivered to the appellant and further that the respondent took lease of the suit land and hence possession so taken under the sale was delivered to him on 15‑9‑1966, therefore, the suit is barred by time even if the limitation is calculated from the date of acknowledgment of the title in favour of the appellant as well as his physical possession over the land in question. Learned counsel has also referred to the statement of Muhammad Tufail D.W.1 who has categorically stated that the sale took place 5‑1/4 years prior to the recording of his statement and that he had identified the vendee before the Revenue Officer. Similar is the statement made by Farzand Ali D.W.2. Learned counsel further pointed out that in his statement made in the title suit by Fateh Sher copy whereof is Exh.D6 on the record he has admitted that he got the land in dispute on lease. He further admitted that he was present on the date when the statement of the vendee was recorded before the Revenue Officer and therefore, in view of the above clear evidence of the delivery of possession as well as ‑ the transaction of sale having taken place much prior to the date of attestation of mutation the suit has rightly been dismissed by the learned trial Court being barred by time which judgment and decree has illegally and without lawfully been set aside by the learned first appellate Court. In support of his contention learned counsel placed reliance on case of Allah Yar and another v. Raja and another (1989 SCMR 802) and Sher Muhammad v. Rajada and another (PLD 1981 SC 591).

5. Learned counsel for the respondent on the other hand has vehemently contended that there is absolutely no evidence to prove that physical possession was delivered to the vendee in the year 1966 or that it was with him even at the date of execution of lease deed in his favour, therefore, it cannot be said that the physical possession under the sale had been delivered to the vendee prior to the attestation of the mutation of sale and as the suit filed on 16‑7‑1968 is within time w.e.f the date of attestation of the mutation, it cannot be said that the same is barred by time, hence the judgment of variance rendered by the learned lower appellate Court is quite lawful and valid and the appeal is liable to be dismissed. In support of his contention learned counsel placed reliance on case of Lal Khan v. Mst. Zarina Jan and others (1991 SCMR 446), Ali Zaman v. Yaqub,1991 SCMR 1933),‑Muhammad Aslam v. Nazar Muhammad and others (1985 SCMR 1384), Gharib Shah and others v. Zarmar Gul (PLD 1984 SC 188).

6. I lave considered the arguments addressed by the learned counsel for the parties and have gone through the record, as well as case‑law cited at the Bar. There is no cavil with the proposition of law as laid down in the judgments cited at the Bar which is to the effect that the period of limitation in a pre emption suit; if is claimed to have started w.e.f. the date of delivery of possession earlier to the date of registration or attestation of mutation, the vendee has to prove that he entered in the physical possession of the land purchased by him under the sale and that oral sale is permissible in Punjab and completion of the transaction is not postponed to the date of attestation of the mutation and that the oral sale can independently be proved by reference to the delivery of possession and entries made in this behalf in Report Roznamcha Waqaati maintained by the Patwari. Examined the case in the light of the aforementioned principles of law I am of the 'view' that the appellant has succeeded in proving that he purchased the land in question prior to 21‑9‑1966 in pursuance whereof, he had been delivered possession thereof, which possession was transferred to the respondent in pursuance of the lease deed dated 16‑9‑1966. In a title suit filed by the respondent; it has already been held in the judgment, rendered by the learned Civil Court copy whereof is Exh.D7, that lease deed Exh.D8 is a valid deed and in the presence of the said deed the respondent is estopped to deny the title of the appellant. Consequently both the question i.e. question of title as well as the question of delivery of possession prior to the execution of the lease deed as well as the date of attestation of mutation of sale are res judicata and hence stand finally adjudicated upon, against the respondent, therefore, he cannot be heard in support of his plea that the possession had not been delivered or that it was not with the appellant prior to or on 15‑9‑1966, on which date he himself acknowledged the appellant to be the owner in possession of the land in question and obtained possession of the same as a lessee. The principle of approbation and reprobation will apply in this case with full force and hence the respondent cannot be heard in support of a contradictory plea being raised in the present proceedings. It is as such established on record that the appellant had obtained the possession of the land in pursuance of an oral sale in his favour prior to 15‑9‑1966. This suit was admittedly filed on 16‑9‑1967, as such is patently barred by time. The findings of the learned lower appellate Court are neither in accord with material on the record nor in accordance with the law declared by the Superior Courts. Resultantly the same are not maintainable and hence the findings do the issue of limitation are reversed and the findings thereon rendered by the learned trial Court are restored and the suit is held to be barred by time. No other point has been urged before me.

5. Resultantly this appeal is accepted, the impugned judgment and decree rendered by the learned lower appellate Court is set aside and the judgment and decree for dismissal of the suit rendered by the learned trial Court is restored, with costs. A.A./A‑712/L Appeal accepted.