P L D 1953 Baghdad﷓ud﷓Jadid 52 (PLP)

ABDUL RASHID, J.‑The facts of the case giving rise to this appeal are as follows :‑ On 17th June 1950 Qadir Dad, plaintiff' instituted a suit for possession by pre‑emption of a 2/3rd share in 184 kanals of agricultural land in Chak No. 132‑P sold by Malik Nisar Ahmad alias Pandit Som Dat in favour of the vendee, Raja Maula Bakhsh, the mutation of which was attested on 19th June 1949. In the plaint he claimed that he had a superior right of pre emption as he was a proprietor in the Mahal, while the vendee was a stranger and owned no landed property there. He challenged the price also but subsequently accepted its payment and with that aspect of the case we are not concerned. In his written statement the vendee pleaded that the suit was time barred as the sale had taken place orally on 5th March 1948, when he had paid full consideration to the vendor and obtained possession of the land from him, that on the application of the vendor, the Revenue Officer attested his statement to this effect on the same day, which was subsequently reaffirmed by another statement of the vendor on 3rd March 1949, and that a report was also entered in tile mutation form regarding the sale and transfer of possession to the vendee. Another contention of the vendee was that the pre‑emptor had waived his right of pre‑emption. The trial Court after considering the evidence of the parties, decided both the points against the vendee and decreed the suit of the plaintiff with costs. From this judgment and decree the vendee has appealed to this Court. In the course of the arguments by Mr. Chishti counsel for the appellant, it was discovered that certain important documents though admitted in evidence by the trial Court had not been properly proved. Upon this Mr. Chishti made an application for being permitted to produce additional evidence on the point. This was allowed and the record was sent back to the trial Court under Order XLI, rule 28, C. P. C. to take such evidence and send it when taken to this Court. After the receipt of the record on the second hearing, Sheikh Nisar Ahmad raised a preliminary objection that in taking down the additional evidence, the trial Court had exceeded the direction given by the Appellate Court, and this was likely to prejudice the case of his client. The contention of the learned counsel is well founded. The perusal of the additional evidence shows that the Court has not confined itself to the points referred to it for further evidence, but has also admitted some extraneous matter into the examination of these witnesses and has thus clearly exceeded its jurisdiction. In these circumstances we have no otter alternative but to use only that part of the evidence which relates to the points under reference and exclude the remaining portion from our consideration. Now we come to the merits of the case. The first point taken by Mr. Chishti on behalf of the appellant is that the suit is clearly time‑barred as the sale was effected on 5th March 1948, and the possession of the land in suit was delivered to the appellant on that date. It support of his contention he has referred us to docu mentary and oral evidence produced by the vendee at the trial. On behalf of the appellant great stress has been laid on the appli cation of the vendor, dated 5th March 1948 and his subsequent statements before the Revenue authorities in proof of the fact that the sale and possession of the pre‑empted land had in fact been brought about long before the attestation of the mutation. In his application, dated 5th March 1948 (Exh. D. B/1) addressed to the Deputy Commissioner, Rahimyarkhan, the vendor admitted that he had sold off his 2/ird share in Chak No. 132‑P. on receipt of full consideration from Raja Maula Bakhsh and had also transfer red possession of the property to him. He therefore requested that the mutation might be sanctioned in his absence on this application Faiz Muhammad Khan, Naib‑Tehsildar, Colony Rahimyarkhan attested on the same day the statement (Exh. D‑D) written by the vendor in which he again admitted the sale and delivery of possession to the vendor and prayed for the sanction of the mutation in his absence as he could not personally proceed to Sadiqabad. There is also another statement Exh. D‑A/ 1 of the like nature by the vendor on the record, which was attested by Ghulam Murtaza Khan, Tehsildar, Sadiqabad on 3rd March 1949. Besides these documents the counsel for the appellant also relies on the entry by Abdul Hameed Patwari in column No. 15 of the Mutation Form No. 22 (Exh. D. H/1), which contains the report of Raja Maula Bakhsh to the effect that he had purchased the land from Pandit Som Dat for Rs. 6,000 and had obtained the possession thereof on spot. This entry by the Patwari bears no date. Now this report on the mutation form amounts to an admission on the part of the vendee in his own favour and cannot legally be proved in evidence on his behalf under the provisions of section 21, Evidence Act. In addition to this documentary evidence, Mr. Chishti has also invited our attention to the oral evidence of several witnesses for the appellant, who depose to his continued possession of the land in suit for the previous four year. A majority of these witnesses are, however, the tenants of the vendor whose evidence is of interested nature. In reply Sheikh Nisar Ahmad, counsel for the respondent has urged that the land in question has never been in the possession of the vendee before the sanction of the mutation in his name on 19th June 1949 and that the suit was filed on 17th June 1950, within one year from the date of mutation, as provided under section 30, Pre‑emption Act. He has referred us to the evidence of Fateh Muhammad and Din Muhammad (P. Ws. 1 and 2), who are refugees from the East Punjab. They unanimously state that the entire khata comprising the land in suit was allotted to them on 1st September 1948, which they occupied ors 10th October 1948 and continued in cultivating possession thereof till the mutation on the 2/3rd share in the name of the vendee, after which they were converted into tenants under him to the extent of his share, but maintained their possession with respect to the remaining 1 /3rd of the joint khata owned by the evacuee Pandit Thakar Dat as the allottees thereof. These facts are fully corroborated by the entries in the khasras girdawari of the four harvests from Kharif 1948 upto Rabi 1950 (Exhs. P‑B and P‑A), as verified by the evidence of the Patwaris Abdul Hameed and Muhammad Jamil (P. Ws. 4 and 5). In Kharif 1948 and Raoi 1949 D. W. Gehna is shown in the khasra as tenant under the refugees, while in Kharif 1949 and Rabi 1950 (after the mutation of 2/3rd share in the name of the vendee) Fateh Muhammad and Din Muhammad are shown in the khasra as tenants of the vendee in two parts and self‑cultiva tors in the third. Apart from khasra girdawari we have also before us the fard taqseem and fard dakhal (Exhs. P‑C and P‑D) in respect of the allotment of the holding in the names of these refugees. These documents have been proved by the Patwaris and leave no room for doubt that in fact the refugees had been in occupa tion of the whole khata in Kharif 1948 and Rabi 1949 as allottees of the land before part of it was mutated by sale in favour of the vendee. Moreover, it is evident from the statement of Din Muhammad that the Revenue demand for these harvests was paid by the refugees and this point has not been rebutted on behalf of the vendee by the production of any receipt or any other convincing evidence on the point. In these circumstances the only conclusion we can arrive at is that there is absolutely no proof of the possession of the vendee as purchaser of the land between March 1948 and June 1949, before the property was mutated in his name. This conclusion gains further support from the fact that on the allotment to the refugees the vendee appears to have taken no steps for the relinquishment of the land through Custodian or the Rehabilitation authorities as a bona fide purchaser from the vendor. The next contention of the learned counsel for the respondent is with regard to the legal aspect of the matter. It is common ground that only a share of the undivided holding was transferred to the vendee. He contends that as the sale was not made by a registered instrument the limitation for the suit is governed by section 30 of the Pre‑emption Act, which is one year either from the date of sanction of mutation or from the date on which the vendee takes under the sale physical possession of any part of such land whichever date is the earlier. His argument is that as a share of undivided Mahal is not susceptible of physical possession, the on alternative is that the period of limitation in the present case began in to run from the date when the mutation was sanctioned. In support of his contention he has referred us to a series of decisions in which this principle of law was discussed. (Vide Ellis Law of Pre‑emption, Edition 6, pages 420‑421). The latest authority on this point is Sarwar v. Feroz Khan (P L D 1951 Lah.169.) which is a ruling directly in point in the present case. In that case one Qamaruzaman reported to the Patwari on 8th March 1923 that he had sold 103 kanals and 15 marlas of land with a shat a in the shamilat to Muhammad Sarwar for Rs. 2,500 orally on 1st March 1943 and had transferred the possession. On the same day the vendor presented an application to the Revenue Officer that his statement regarding sale and transfer of possession by the vendee be attested. This was done and the mutation was sanctioned on 23rd March 1943. On 22nd March 1944 one Feroz Khan brought a suit for pre‑emption on the ground of his superior right. The question for determination in this case was whether the limitation ran from the 1st March, the date of alleged possession or from the sanction of mutation. The learned Judges, while discussing this point observed as follows:‑

The words "physical possession" (occurring in section 30 pre emption Act) as distinct from mere possession is some thing visible and tangible. In case of pre‑emption the law presumes registration of instruments, which can on a proper search be ascertained from the registration books and the attestation of mutation which usually takes place in the presence of an assembly of villagers, as constructive notice of a fact having taken place, and in their absence, the other thing which could give notice to persons of a change having taken place in the ownership of the property, could only be the change in the "actual possession" of the property to which the right of pre emption extends." It was further remarked by the Hon'ble Judges at the close of the judgment that the mere admission by the vendor at the time of the report to the Patwari or to a statement to the Revenue Officer that the possession had been surrendered earlier might be of some use and consequence to the parties to the transaction but could not be binding upon a stranger. After considering the facts of the case in the light of these principles the learned Judges held that the time was to be calculated from the date of mutation and not from 1st March 1943 when the sale was alleged to have taken place. The learned Judges in the above case appear to have based their judgment on a previous Ruling of the same High Court reported in A I R 1925 Lab.

165. In that case the land was in the possession of a mortgagee who cultivated it through his tenant. While deciding the question of limitation Le R ossignol J.; made the following observations:‑ "The law insists on physical possession because physical posses sion is visible to all concerned. It is a notice to all would be pre‑emptors that a change has occurred in the enjoyment and possession of a land in question and puts them to enquiry whether there has been a sale. The mere reporting to the Patwari that vendor has relinquished possession and that the vendee has assumed possession is no proof that there was a giving and taking of physical possession within the meaning of section 30." Sheikh Nisar Ahmad for the respondent next cited A I R 1923 Lah. 74 in support of his contention. In that case 23rd share of an undivided holding had been sold to the vendee. The plaintiff brought a suit the ground of his superior right of pre‑emption. The vendee pleaded that the suit was time barred as he had taken physical possession of a part at any rate of the land more than a year prior to the institution of the suit. It was held that a share in the undivided holding was incapable of physical possession and that the time would run from the date of mutation. Mr. Chishti has not teen able to controvert these rulings by citing any authority in his support. He, however, contends that the vendee had not only taken possession of 203rd share in the holding by sale on 5th March 1948, but at the same time he occupied the remaining 1 03rd share of the vendor's brother Pandit Thakar Dat who had by that time left for India and thus he be came possessed of the entire holding. This is however not warrant ed by the facts on the record. In the course of the trial the vendee has nowhere tried to bring out from the evidence that he was also in possession of the remaining one‑third part of the land on behalf of Thakar Dat or even as a mere trespasser. On the other hand, it is clear from the testimony of Abdul Hameed Patwari that between March and October 1948 (when refugees obtained possession of the land as allottees), Imam Din the tenant of Pandit Thakar Dat was in cultivating possession of his share. This statement of the Patwari is quite true as he carried out the girdawari of the land for Rabi and Kharif 1948 and made an entry in the name of Imam Din in the khasra for Rabi 1948. In these circumstances, even if we assume for the sake of argument that possession had been transferred by pointing out the land to the vendee or by attornment on behalf of the vendor‑although there is no such elucidation on the record‑this by itself does not amount to `physical possession' which in fact connotes immediate and personal contact and not merely a formal or constructive possession. This principle of law was also affirmed in A I R 1924 Lah. 302, where it was held that property in the possession of a tenant on the date of sale does not admit of physical possession within Art. 10, Limitation Act (or section 30, Pre emption Act). It is evident from the above discussion of the case that the land in suit being a part of the joint khata was not capable of physical possession by the vendee and the limitation is to be calculated from the date of mutation. We, therefore, hold that the suit is within time. Next we take up the question of waiver. Mr. Chishti for the appellant has urged that according to the statement of Nisar Ahmad vendor (P. W. 3), he had approached the plaintiff (whose land is situated contiguous to the property in suit) and offered to sell the land to him for Rs. 6,000, bat he refused to purchase it for more than Rs. 4,

000. This is the only evidence on the point of waiver which has not been corroborated by any other indepen dent evidence on the record. Now in order to deprive a person of a legal right which he possesses there must be some clear and convincing evidence in support of the plea of waiver and the solitary statement of a vendor that the would‑be pre‑emptor had declined to purchase on a certain price, which he might have thought to be excessive is not enough to prove that he had given up his claim of pre‑emption. The evidence of the vendor on the point is quite inconclusive and the appellant has not succeeded in proving any act or omission on the part of the plaintiff such as would have established complete waiver of his right of pre emption. In support of his contention Mr. Chishti has invited our attention to A I R 1935 Lah. 884 and A I R 1929 Lah. 265, but both are distinguishable, as complete waiver had been established to each of these cases. In the first case it was found that the pre‑emptor had made a statement which showed that he had no inclination to purchase the property and that though he lived in the adjoining house, he evinced no interest in the matter when the house in suit was put to auction and even afterwards when he was approached by the vendor, he made a ridiculous offer at a very low price, held that a complete waiver had been established. The circumstances of the second case are also quite distinct from those of the present case. In that case the plaintiff (a non -Muslim) had declined to purchase the house in unequivocal terms on the ground that it was situated in a Muhammadan Mohalla. Held that this was a complete waiver on the part of the plaintiff of his right of pre‑emption. In the present case no such circumstances have been proved which would positively lead to the conclusion that the plaintiff has forfeited his right of pre‑emption. This right is provided to the plaintiff by statute and cannot be prejudiced by a solitary state ment of the vendor, as he is naturally baised in favour of the vendee and may even be potentially hostile to the pre‑emptor. As there is no evidence in support of the plea of waiver this point is also decided against the appellant. On the grounds stated above we uphold the judgment and decree of the trial Court and dismiss this appeal with costs. Counsel for appellant and respondent in person present. FAIZ MUHAMMAD, C. J.‑I agree. K. M. A. Appeal dismissed.'