1995 PLP 625 (MLD)

2. The suit was resisted by the defendant‑appellant and on the pleadings of the parties the learned trial Judge had framed the following issues:‑‑‑ Issues. (1) Whether the suit has been improperly valued and insufficiently stamped? If so, what it its effect? (2) Whether the suit is barred by time? (3) Whether the suit property has been properly described? (4) Whether the plaintiff has superior pre‑emptive fight qua the defendant? (5) Whether the plaintiff has waived his right of pre‑emption? (6) Whether an amount of Rs.13,500 was fixed in good faith or paid as the sale price of the suit land? (7) If Issue No.6 is not proved, what was the market value of the suit land at the relevant time of its sale? (8) Relief. After recording the evidence of the parties and hearing their counsel, the learned Judge, vide his judgment, dated 18‑5‑1978, decreed the suit of the plaintiff‑respondent on the payment of Rs.13,500 the pre‑emption money. The defendant‑appellant went up in appeal before the learned Additional District Judge, Gujrat, but the same was dismissed on 14‑2‑1979. He came up in second appeal to this Court which was accepted on 22‑11‑1983 only on the ground that the plaintiff‑respondent had not paid the court‑fee in time. These findings related to Issue No.1 Aggrieved by these findings, the plaintiff‑respondent took recourse to the Supreme Court which, vide order, dated 24‑5‑1988, was pleased to accept the appeal and setting aside the order of the High Court, remanded the appeal for decision on other questions agitated by the defendant‑appellant.

3. As already indicated, the appeal was first dismissed and then reheard. Learned counsel for the defendant‑appellant challenged the concurrent findings of the Courts below on Issue No.2 relating to limitation and Issue No.5 concerning waiver. On Issue No.2 his contention was that the consent decree, dated 9‑10‑1971, by itself embodied the sale transaction, giving rise to the start of limitation for the institution of the pre‑emption suit, especially when the defendant‑appellant as vendee bad immediately taken possession of the suit land and the pre‑emption suit brought by the plaintiff‑respondent on 1‑9‑1973 was time‑barred, having been brought much after the lapse of the prescribed period of one year. His another limb of argument was that if the limitation was to be reckoned from the date of attestation of mutation, even then the suit was time‑barred because sale mutation was sanctioned on 29‑8‑1972 and the pre‑emption suit could be brought during August vacations up to 29‑8‑1973 but it was actually brought on 1‑9‑1973.

4. Learned counsel for the defendant‑appellant has not been able to cite any case‑law in support of his contention that the date of passing the consent decree could by itself be the starting point of limitation prescribed in section 30 of the Punjab Pre‑emption Act 1913, which was one year from the date of attestation of sale mutation. To pre‑empt the sale transaction incorporated in a consent decree, the period of limitation as prescribed by Article 120 of the Schedule to the Limitation Act was six years. However, it could possibly be one year if the defendant‑vendee had taken possession of the suit land under the sale but there is no cogent evidence on the record to that effect, rather, his own witness, namely, Khurshid (D.W.1) had deposed against him (defendant appellant) on the question of possession by stating that the vendee had taken possession of the suit land after the attestation of sale mutation, which was sanctioned on 29‑8‑1972. There was no substance in his second leg of argument as well because the plaintiff‑respondent was not bound to institute a suit for pre‑emption during August vacations. He could easily skip over the long vacations and file a suit on the re‑opening of the Courts on first of September 1973 and that was what he had done. Therefore, no fault can be found with the concurrent findings of the Court below on Issue No.2.

5. With regard to Issue No.5 learned counsel for the defendant‑appellant was of the view that the solitary statement of his client by itself was sufficient to prove waiver. It is not possible to agree with his contention. The plaintiff respondent while appearing as his own witness had emphatically denied the fact of his participation in the sale transaction and his statement was sufficient to rebut the solitary statement of his opponent on this point. Therefore, both the Courts below had rightly decided this issue against the defendant‑appellant.

6. In view of the above, there is no substance in this appeal and the same is dismissed with costs throughout. A.A./M‑1811/L Appeal dismissed.