1972 PLP 371 (SCMR)

WAHEEDUDDIN AHMAD, J.‑The dispute between the parties is in respect of Sufaida' land measuring 10 marlas with one Kothri, situated in village Bajar, Tehsil Khushab, District Sargodha. This land was purchased by petitioner No. 2 Gul Nawaz. The res pondent filed a suit for possession by way of pre‑emption on the 24th October 1961, against petitioner No.

1. Later on, the plaint was amended and the petitioner No. 2 was ordered to be impleaded as a party by the Civil Judge, Jauharabad. The suit was dismissed by the Civil Judge on the ground that it was barred by limitation, 'The matter was taken in appeal before the additional District Judge, Sargodha and by judgment dated the 21st December 1970, the first Appellate Court held that the respondent's suit was within time and the appeal was accepted. The matter was then taken to the Lahore High Court and a learned Single fudge, by order dated the 10th January 1972, in R. S. A. No. 24 of 1971, upheld the finding of the Additional District Judge and dismissed the appeal. The petitioners seek permission to file an appeal against the said order. Mr. S. U. Chaudbry, learned counsel for the petitioners, has contended that both the High Court and the learned Additional District Judge have taken into consideration the fact of the knowledge of the respondent about the sale in dispute. According to the learned counsel under section 30 of the Pre‑emption Act, the sale being oral, time begins to run from the time the physical possession is taken by the vendee. We have gone through the judgments of both the Courts below and there is no doubt in out mind that they have considered the question of physical possession and have decided the question of limitation on that basis. This contention, therefore, has no force. It was next contended by the learned counsel for the petitioner that the vendee got the physical possession of the land in dispute in April 1960, and the suit was time‑barred. The evidence on this point consists of the receipt of the purchase of bricks for the con struction of the property. This evidence was disbelieved by the "first Appellate Court. The High Court also concurred with this view. The decision of the question whether the bricks were purchased for raising construction on the building rests upon the appreciation of the evidence led by the parties and this Court is reluctant to appreciate the evidence itself. However, we have gone through the evidence with the learned counsel for the peti tioners and are satisfied that cogent reasons have been given by the Courts below to disbelieve the purchase of bricks by the petitioner under receipt, Exh. D/l. The sale in question was oral and no document has been executed between the parties. The onus of proving that physical possession of the land in dispute was taken by the petitioner on a particular date was on him. He has miserably failed to prove this fact. 'In these circumstances, the Courts below were right in decreeing the suit. There is no fore, in the petition which is dismissed. Leave refused.