1988 PLP 1141 (MLD)

A suit for possession through pre‑emption filed by the petitioner on 22‑10‑1981, with regard to an area of 41 kanals 12 marlas, being an undivided share of agricultural land situated in village Kotli Lundi, Tehsil Daska, district Sialkot which had been sold to the respondent Fazal Hussain for an ostensible price of Rs.2,00,000 through a sale‑deed executed on 14‑10‑1980 and registered on 23‑10‑1980, claiming superior right of pre‑emption on the ground of being an owner of the estate; was contested by denying his claim and also raising the objections with regard to limitation, valuation, estoppel and partial pre-emption which led to the framing of 10 issues, inclusive of that of the relief, for the purposes of trial in the course whereof parties led their evidence wherein defendant admitted the superior right of pre‑emption of the plaintiff and the other issues, excepting Nos.l and 7 relating respectively to the limitation and the sale price, were not pressed before the trial Court who by the judgment dated 1‑6‑1983 decreed his suit upon payment of the ostensible sale‑price which was found to have in fact been paid by the vendee. The objection with regard to the suit being time‑barred was, however, decided against the vendee for the reason that the evidence led to prove issue No.1 did not carry conviction inasmuch as the two occupants of the land examined as D.Ws.1 and 2 had made inconsistent statements regarding the alleged delivery of possession, the vendee had himself stated that the possession was obtained by him before the execution of the sale deed. The suit filed within one year of the registration of the sale‑deed was held to be within time.

2. An appeal there against filed by the vendee was heard by the learned District Judge who differed with the trial Court's finding recorded under issue No.1 and finding the suit to be barred by time from the physical possession of the land held by him to have been taken by the vendee on 14‑10‑1980, set aside the trial Court's decree by his judgment dated 31‑10‑1983 into dismissing the suit of the plaintiff who has now come up to this Court on revision.

3. It is argued that learned District Judge has erred in exercising his jurisdiction on the basis of incorrect view of the law taken in disregard of the facts of the case. It is urged that the assertion with regard to the alleged delivery of possession to the vendee before the sale as had been deposed to by the tenants examined as D.Ws.l and 2, was only fake and could not be held to have been proved on the basis of conflicting statements made by the witnesses and the absence of its mention in the sale‑deed Ex.D.2 which fact was indicative of the document EX.D.1 having been drawn up subsequently and more particularly so because the vendee had himself deposed to the alleged possession taken before the sale‑deed which is a necessary part of the sale itself and thus, such a preceding act is incapable of being considered as 'under the sale'. It is further submitted that since the sale in this case related to an undivided share of a larger entity, therefore, the suit land cannot be regarded as capable of being physically possessed within the contemplation of Article 10 of the First Schedule to the Limitation Act whereunder the date of registration has to be considered the sine qua non for the purposes of limitation and the suit is well within time from such a date.

4. The submissions seem formidable and well fortified by the cases reported as Niaz Ahmad and others v. Mian Abdul Rahman and others (P L D 1961 Baghdad‑ul‑Jadid 1); Gullan v. Muhammad Ramzan and others (P L D 1962 Baghdad‑ul‑Jadid 33); Khuda Yar and 4 others v. Resaldar Malik Nawaz Khan and 2 others (P L D 1987 Lah.127) and Haji Muhammad v. Inayat (P L D 1987 Lah.133).

5. Learned counsel for the respondent has not been able to controvert the foregoing propositions which must, hence, prevail. Solitary basis for the interference made by the learned District Judge in the trial Court's decree stands I knocked out, thus.

6. No other point arises for consideration in this case.

7. Upshot of the foregoing is that the judgment passed in the appeal below has to be held to have resulted from illegal exercise of jurisdiction and the same cannot, hence, be sustained. The Civil Revision is accordingly accepted and g setting aside the decree passed in the appeal below, the one passed by the trial Court on 1‑6‑1983 is restored with the plaintiffs costs throughout to be paid by the vendee‑respondent. AA./M‑776/L Revision accepted.