1984 PLP 484 (MLD)

Pir Anwar Rehman for Petitioners. A.Karim Malik for Respondents. Date of hearing: 11th October, 1983. Inayatullah respondent brought a pre-emption suit against the petitioners. The latter contested it inter alia on the grounds of limitation and estoppel, reflected in issues Nos.1 and 3, respectively, which alone have been debated by the parties in this revision. For highlighting this controversy between them it may be stated that the sale of the land in dispute, measuring only 3 Kanals, is evidences by a sale-deed executed on 13-6-1960 in favour of the petitioners by Malik Fateh Khan, who is arrayed as respondent No.2. It was presented for registration on 15-6-1960 but was actually registered on 13-7-1960. The petitioners' case was that they took over the possession from the vendor at the time of the execution of the sale-deed, levelled the land filled in the pits and brought it under cultivation in Rabi, 1961. The suit filed on 11-7-1961 having been brought after the expiry of a period of more than one year, from the date of possession, was barred by time. The plea of estoppel was founded on the contention that before the transaction in favour of the petitioners, the land was offered for sale, to the plaintiff but he declined to purchase it. To prove these issues the petitioners examined Muhammad Sharif D.W.1, Malik Fateh Muhammad D.W.2, Lal Din D.W.3, Ibrahim D.W.4, Khushi Muhammad D.W.5 and Bashir Ahmad D.W.6. Besides these witnesses, Muhammad Ishaque and Ahmad Hussain petitioners also entered the witness box.

2. The learned trial Court on evaluation of the evidence of the parties held that neither the land was capable of physical possession nor the possession thereof delivered to the petitioners as claimed by them. In this connection the Court referred to a copy of Khasra Girdawari Exh.P.W.3/1, which indicated that until Rabi, 1961 the land remained under the cultivation of the vendor. The fact that the petitioners did not produce the copy of the daily diary, maintained by the Patwari, to establish the change of possession, was another factor taken note of by the learned trial Court to disbelieve their evidence. It came to the conclusion that there was no physical change of possession; the period of limitation commenced from 13-7-1960 when the sale-deed was registered; thus the suit was within time. As regards the other issue, the learned trial Court's finding was that the statutory notice under section 19 of the Punjab Pre-emption Act was not given to the plaintiff and the petitioners' oral evidence regarding estoppel was not reliable. As on other material issues as well, the learned trial Court gave a decision against the petitioners, the suit was decreed against them. The learned first appellate Court upheld the trial Court's findings and dismissed the petitioners' appeal on 23-10-1972. It is under these circumstances, that the unsuccessful vendees have come to this Court under section 115, C.P.C.

3. Before proceeding further it may be added that a part of the lower Court's record was lost and it was reconstructed. During the arguments it transpired that the statement of Ahmad Hassan, petitioner who appeared as D.W.8 was not on the record and had not been reconstructed. The learned counsel for the respondent has produced a copy of the statement of this witness, from his brief. It is in the hands of late Mr. Muhammad Aslam, who represented the respondents before the trial Court. The learned counsel for both the parties have put their signatures on this copy in token of its correctness. It has been placed on the trial Court's file and shall form part of the record.

4. I have heard the learned counsel for the parties and with their assistance examined the record. The main submission of the petitioners' learned counsel was that their evidence was misread and also ignored. The evidence said to have been misread and non-read, is the one which relates to the filling in of the pits and levelling of the land. It was argued that the evidence in this behalf fully established their overt-act relating to the delivery of possession. To support this contention, the learned counsel read out the depositions of almost all the witnesses examined by the petitioners. He urged that Muhammad Sharif stated that the possession was taken over by the petitioner on 15-6-1960 and whereas in the impugned judgment, the version attributed to him was that the possession was handed over to the vendees at the time of registration of the sale-deed. He further submitted that on the question of possession this witness was not subjected to cross-examination and that the statement of Lal Din DW was not discussed by the learned Additional District Judge. Likewise it was stated that only a passing reference was made to the depositions of Ibrahim, Khushi Muhammad and Bashir Ahmed, D.Ws in respect of delivery of possession but the pros and cons of their statements were not discussed. The learned counsel then drew my attention to the copy of the Khasra Girdawri Exh.P.W.3/1 to point out that in Rabi, 1961, the land was under cultivation but the learned Additional District Judge maintained that it was lying vacant. He also criticised the learned first appellate Court's implicit reliance on this document and contended that no presumption of correctness attaches to the entries of Khasra Girdawri. As regards the absence of the petitioner's name, in this document, the explanation given by him was that since the mutation was not sanctioned in their favour the Girdawri continued to stand in the name of the vendor. It was also urged that the vendor's statement to the effect that the delivery of possession took place simultaneous to the execution of the sale-deed, sufficiently rebutted the entries of the Khasra Girdawri.

5. It may be added that the petitioners had claimed improvement and issue No.6 was formulated in this behalf. Before the learned trial Court, the respondent's learned counsel conceded to the fixation of the costs of the improvement at Rs.500. This concession was sought to be utilized at the revisional stage for the purpose of issue No.1. The argument was that as the respondent himself accepted the petitioners' claim of improvement concerning filling in of the pits and levelling of the land, he was precluded from questioning the correctness of their stand that on taking over the possession, they performed the overt-act aforesaid. On the issue regarding estoppel, the learned counsel relied upon the statement of the vendor who deposed that before the sale in dispute, he asked the respondent to purchase the land.

6. The contentions raised by the learned counsel for the petitioners have no merit. Both the learned Courts below applied their mind to the evidence on record and considered the material adduced by the petitioners in support of their contention that the possession was conveyed to them at the time of the execution of the sale deed but their evidence was disbelieved. The finding on the question of delivery of possession is a finding of fact which cannot be disturbed in revision. However, I have examined the case from the point of view as to whether or no It the petitioners' evidence was misread or ignored, but I do not feel persuaded to agree with the submissions of their learned counsel.

7. It is correct that Muhammad Sharif D.W., deposed that possession was delivered on 15-6-1960 and in the impugned judgment he is said to have stated that the possession was handed over at the time of the registration of the sale-deed. This error is not of much significance. The fact remains that this witness was disbelieved. I feel that even if the actual version of this witness was present to mind of the learned Additional District Judge, his decision would not have been different.

8. It is not infallable rule, that in all events when a witness is not cross-examined on a particular point, his evidence must be accepted as true. The petitioners' entire evidence including the statement of Muhammad Sharif D.W., was considered in its entirety, but both the learned Courts below found that the delivery of possession did not take place as claimed by the petitioners.

9. As regards the submission that the deposition of Lal Din and other D.Ws, was not discussed in the appellate Court's judgment. It is to be seen that Lal Din was examined by the petitioners to establish improvements, but issue No.6 framed in this behalf was not pressed by the petitioners at the appellate stage as it has been answered by the learned trial Court in their favour. There was thus no occasion for the learned Additional District Judge to have made a reference to the statement of this witness. The learned trial Court discussed the entire evidence in some depth. The impugned judgment is that of affirmation of the findings of the learned trial Court. The learned first appellate Court was thus, not required to discuss in detail the statement of each and every witness. However, its judgment amply demonstrates that the learned Additional District Judge was seized of the entire evidence on the record.

10. The contentions that the entries in the Khasra Girdawri Exh.P.W.3/1 stood rebutted by the statement of the vendor and that this document was not properly construed by the learned Additional District Judge, are not well founded. It is true that as per this document Fateh Muhammad vendor remained in cultivating possession of the land upto Rabi, 1961 but the learned Additional District Judge maintained that he remained in possession upto Kharif, 1961. To my mind it is merely a clerical error and does not affect the merits of the case, for, the document Exh.P.W.3/1 speaks for itself.

11. As regards the learned lower Courts' reliance on Khasra Girdawari Exh.P.W.3/1, it is a public document and the entries therein, were made after enquiry by the official concerned in the regular course of his duties. This document was produced by Bashir Ahmed Patwari P.W.3. There is nothing in his statement to justify its exclusion from consi deration. It was, therefore, rightly relied upon by the learned Courts below, for negation of the petitioners stand that the possession of the land was delivered to them on the date of execution of the sale-deed. The reason advanced by the learned counsel for the petitioners, to diminish the evidentiary value of the Khasra Girdawri is not plausible. In any case the change of possession really took place in June, 1960. The petitioners could have got made an entry to that effect in the daily diary maintained by the Patwari. Admittedly no such entry exists in their favour.

12. It is idle on the part of the petitioners to endeavour to enlist support on the question of limitation from the concession given by the pre-emptor on issue No.6, which is an independent issue. The concession involved a payment of Rs.500 only and presumably the respondent did not think it worthwhile to contest this issue and preferred to pay Rs.500 to avoid prolongation of litigation. I am, therefore, unable to accept the argument that the finding on issue No.6 furnishes evidence of overt-act for the purpose of decision on issue No.1.

13. The question of estoppel remains now to be discussed. The view taken by the learned Courts below in this behalf is that the land was not offered for sale to the respondent. The petitioners' evidence in respect of estoppel has been discarded. It being a finding of fact cannot be interfered with in exercise of revisional jurisdiction.

14. The judgment under revision is well grounded and conforms to the requirements of law. As all the contentions raised on behalf of the petitioners have failed, this revision petition is dismissed with costs as being without merits. M. Y . H . Petition dismissed.