1989SCMR802 (PLP)

USMAN ALI SHAH, J.‑‑This appeal by leave arises out of the judgment of the Lahore High Court, Lahore, passed in R.S.A. No.870 of 1960, whereby 2nd appeal of the appellants herein against the judgment of the Additional District Judge, Jhang, who vide his order dated 23‑9‑1968 set aside the judgment passed by the Administrative Civil Judge, Jhang in favour of the respondents herein, vide his order dated 3‑12‑1908 in two consolidated pre‑emption Suits Nos.229 and 230 of 1968, was dismissed by the impugned judgment. The appellants had purchased land measuring 138 kanals 7 marlas through an oral sale transaction for consideration of Rs.16,000 on 12‑2‑1967. The Patwari Halqa was informed about the said transaction but the actual mutation regarding the said oral sale was attested on 3‑5‑1967. Two rival pre‑emption suits were filed. Respondent No.l filed Civil Suit No.230 while respondent No.2 filed. Civil Suit No.229 before the Administrative Civil Judge, Jhang, claiming possession of the suit land through pre‑emption. Both of them pleaded their superior right of pre‑emption being share‑holders in the village while vendees/appellants are the strangers. The respondents also asserted the actual price as Rs.12,000 and the money entered in mutation was fictitious. The rival pre‑emptor of the same village had also claimed his superior right being a share holder who also pleaded the sale price as Rs.8,000 and Rs.16,0(X) according to him, shown in the mutation was fictitious. The learned Civil .fudge consolidated both the suits. The appellants contested the suit and pleaded that they had obtained the possession of the disputed land much before the date of attestation of mutation and so the suits of the respondents were time‑barred and the respondents were estopped by their conduct to file these suits. The appellants also raised objection as regards the valuation of the court‑fee and jurisdiction. On the pleadings of both the parties the learned Civil Judge framed nine contesting issues. After recording evidence adduced by the parties the learned Civil Judge dismissed the suits of the present respondents as time‑barred, vide his judgment dated 3‑12‑1968. Aggrieved by the said judgment, the respondent No.l pre‑emptor Raja riled appeal against the said order of the Civil fudge before the learned Additional District Judge, Jhang, whereas the other rival pre‑emptor Allah Ditta respondent No.2 did not file any appeal: The learned Additional District Judge, vide order dated 23‑9‑1969 accepted the appeal of the respondents, set aside the judgment of the learned trial Judge and granted decree for possession through pre‑emption to Raja respondent No.l for the land in dispute on payment of Rs.16,000 with no order as to costs. The present appellants went up in regular 2nd appeal to the Lahore High Court, Lahore. A learned Single Judge of the High Court, dismissed the appeal vide impugned judgment. Leave was granted to the appellants to consider the question whether the physical possession must be deemed to have been handed over to the vendee- appellants on 12‑2‑1967, as indicated by entry in the Revenue record and that "presumption of correctness is attached to the said entry which is not rebutted by the evidence on the record". We have heard the learned counsel for the parties, gone through the evidence on record and perused the judgments of the Courts below. The only question involved in this case is whether the suit of the pre‑emptor was within time? It is a matter of record that the vendor reported to the Patwari that the oral sale transaction qua the suit land was effected between him and the appellants herein and that possession of the suit land was transferred to them. On the basis of this information the Patwari made entries in the revenue record as evidenced by the entries in column No.14 of the impugned sale Mutation No. 415, the relevant portion wherefrom may be reproduced:‑‑ Not only this but the deposit of District Council fee by the appellants is also a proof to show that possession of the suit land was handed over to the appellants, well before the attestation of the mutation. In this respect the entries in column No.3 of the mutation may be reproduced:‑‑ Again, while submitting the mutation for attestation to the revenue officer, the Patwari on 3‑4‑1967 made the following report to confirm the above entries already made by him in the record:‑‑ The above entries in the Revenue record clinche the matter against the respondents. The Patwari was examined and nothing was extracted from him in cross‑examination to show that the possession of the suit land was delivered to the appellant on the date of attestation of mutation and not on the date of oral sale which fact was entered by him in the Revenue record. The witnesses produced by, the appellants also testified to the fact that possession of the suit land was transferred to the appellants before the attestation of mutation. In these circumstances we do not see as to how it can possibly be said that the suit in the present case was brought within the period of limitation, when its possession. according to entries in the revenue record and even according to the evidence o the defence witnesses was transferred beyond the period of limitation on the date of oral sale transaction. Thus section 30 of the Punjab Limitation Act is clear to the effect that the period of limitation in cases of this nature will commence "from the date on which the vendees takes under the sale physical possession of any part of such land or property". Even otherwise it is a settled law that in pre‑emption cases the period of limitation would run from the date of physical possession. The learned Additional District Judge and the learned Single Judge in the High Court have misread the evidence on record, therefore, their impugned findings cannot be sustained in law. Although, in this case the sale mutation was attested on 3‑5‑1967 but as discussed above, it is abundantly clear from the evidence on record that the appellants pursuant to the oral sale transaction took possession of the suit land long before that date and the present suit was brought on 2‑5‑1968, i.e. long after the date of possession of the suit land by the respondents we do not see as to how it can be argued that the suit was within time. The result is that we set aside the judgment of the Additional District Judge and that of the learned Single Judge of the High Court and while accepting this appeal, we restore the judgment of the learned Civil Judge dated 3‑12‑1968 with no order as to costs. A.A./A‑420/S Appeal accepted.