1993 PLP 1968 (MLD)

Bakhsh Ilahi, respondent in this appeal, filed a suit, to pre-empt the sale of land measuring 11 Kanals 9 Marlas in favour of Mujeebullah (Mohibullah) deceased appellant whose legal representatives have been brought on record of this second appeal which sale was effected vide Mutation No.1184 attested on 28-6-1962, on the basis of qualification that he is real son of Gul Muhammad vendor and real nephew of the other vendor. The suit was contested by the defendant who is appellant before this Court. Superior pre -emptive right was denied and it has been contended that the suit is barred by limitation inasmuch as he has purchased this property on 2-4-1959 vide endorsement mark `X' on the back of the registered sale-deed and had entered into possession of the land in pursuance of the sale referred to above in Kharif 1959 and hence suit having been filed beyond a period of one year is clearly time-barred. Endorsement on the sale deed referred to above is reproduced as under:-- On the basis of pleadings of the party the learned trial Court settled the following issues:

(1) Whether the suit land was purchased by the defendant from Moza-ud Din on the basis of an oral agreement? If so, when was it purchased and with what effect? O.D. (2) Whether plaintiff has superior right of pre-emption? OP. (3) Whether the suit is time-barred? (4) Whether the defendant has effected any improvement, if so, to what extent and with what effect? O.D. (5) Is the suit for partial pre-emption? O.D. (6) Relief. Vide judgment and decree, dated 6-10-1965 the learned trial Court decreed the suit in favour of the respondent holding that he is son and nephew of the vendor and therefore has a superior pre-emptive right and further that the defendant is not proved to have entered into possession of the land in pursuance of sale as alleged by him in the year 1959 therefore, the suit is within time with effect from date of mutation which was attested on 18-6-1962 as the suit was filed on 11-4-1963, within a period of one year after attestation of the mutation. Aggrieved of this judgment and decree rendered by the trial Court the defendant filed first appeal which is also dismissed on the same ground. In this R.S.A. the defendant has challenged both the judgments and decree rendered by the Courts below. Malik Muhammad Jaffar, Advocate has appeared on behalf of the appellant whereas none has appeared on behalf of the respondent who has been proceeded against ex parte, vide order, dated 30-3-1993. Malik Muhammad Jaffar, Advocate has argued that the endorsement on the back of the sale-deed Exh. `X' is in fact a recital about the past sale and about the payment of consideration regarding a past transaction and therefore it did not require registration and same is admissible in evidence and that this endorsement proves that the sale had taken place earlier to 2-4-1959. Learned counsel has further contended that although the land was admittedly in possession of the tenant at time of execution of the said endorsement and the tenant in possession having attorned and deposed that he has attorned in favour of the appellant hence it is established that the vendee entered in possession of the land in dispute in pursuance of the sale in the year 1959 and the sanction of mutation being just a formality the period of limitation will start w.e.f. the date of execution of the endorsement that is 2-4-1959 and at any rate w.e.f Kharif 1959 when the appellant entered into possession of the land through tenant, hence the suit is clearly barred by time and both the Courts below have illegally held otherwise. Learned counsel further contends that the plaintiff has failed to prove that he is son of the vendor and nephew of the other vendor therefore, concurrent finding of fact on this issue rendered by the two Courts below is not maintainable in law.

3. I have considered the arguments addressed by the learned counsel for appellant and have also gone through the record. Endorsement on the back of the sale-deed Mark `X' is not a recital about the past transaction but itself constitutes a transaction of sale and, therefore, having not been registered, it does not create any right or interest in favour of the appellant and as such it cannot be said that any valid sale has taken place on 2-4-1959. Similarly the possession of the land being admittedly with the tenant on 2-4-1959 and thereafter it cannot be said that the appellant had entered in possession of the land in dispute under a sale in his favour in the year 1959. The period of limitation, therefore, in this case cannot start w.e.f. the year 1959. . The mutation of sale clearly shows that it is altogether an independent transaction wherein not only the vendors are different but the sale amount is also more than one which has been mentioned in the endorsement inasmuch as in the endorsement the sale amount is Rs.5,250 whereas in the sale mutation the consideration has been mentioned as Rs.5,

500. The mutation has been entered and was got attested by the heirs of the deceased and it does not appear to have any nexus with the earlier endorsement which is claimed to be a document of title by the appellant. Consequently, the two Courts below after scanning of whole evidence have rightly held that the sale in this case has taken place through Mutation No.1184 which was attested on 18-6-1962, therefore, as per provision of section 30 of Punjab Pre-emption Act, 1913 the period of limitation in this case being one year w.e.f. the date of attestation of the mutation, the suit has rightly been held within time having been filed on 11-4-1963. Findings rendered by the two Courts below with regard to the superiority of right of pre-emption of the respondent are also unexceptionable. Learned counsel for the appellant has not been able to point out any misreading or non-reading of evidence. The two Courts below on the basis of evidence have concurrently held that the respondent is the son of the one of the vendors and nephew of the other. This being a second appeal, concurrent findings of fact rendered by the two Courts below are not liable to be B interfered with in view of law declared in case of Abdul Majid and others v. Khalil Ahmad PLD 1955 FC 38 inasmuch as the learned counsel has not been able to point out any mis-reading or non-reading of evidence in the case. Resultantly, findings rendered by the two Courts below on the issue of superior right of pre-emption in favour of the respondent are unexceptionable and are upheld. Resultantly, I see no force in this appeal. The same is, therefore, dismissed with costs throughout. AA./M-1097/L Appeal dismissed.