1992 PLP 804 (MLD)

Application for revision by the defendants in the suit for pre‑emption requires determination of a sole point, whether the pre‑emption suit, when presented to the Court of first instance, was barred by limitation. The trial Court as well as the lower Appellate Court found that it was not so, and, decreed it in favour of respondent upon his paying Rs.1,000 as sale price of the land in dispute to the petitioners by a specified date.

2. Facts leading to the litigation, in brief are:‑By Mutation No.2560, entered on 12‑9‑1973 and sanction on 15‑12‑1973, Abdur Rashid sold his land measuring 4 Kanals 3 Marlas, comprised in Khasra No.472, at Mauza Jalalpur of the then Tehsil Narowal in District Sialkot to Noor Ahmad and Javaid Iqbal for a sale price of Rs.1,

000. Sale mutation is Exh.P.2. Respondent Feroze Din claimed pre‑emption in respect of this sale and asserted his superior right on the ground of being an owner of the estate. Pre‑emption suit was instituted on 14‑12‑1974.

3. Defendants submitted a joint defence. In it, they averred that since the land was purchased for residential purposes, it was not pre‑emptible; that the pre‑emption suit was barred by limitation; that though the defendants were non‑owners of land in the revenue estate, yet the plaintiff had no superior right of pre‑emption because the land was purchased for residential purposes. In the first instance, the trial Court decreed pre‑emption to the respondent, on 4‑11‑1975, after it had closed the defendants' evidence. In appeal preferred against the decree, parties agreed to setting aside of it and remand of the suit for deciding of it afresh after allowing an opportunity of defence to the defendants‑petitioners. Trial proceeded on following issues:‑‑‑ (1) Whether plaintiff has got better right of pre‑emption? OPP. (2) Whether the ostensible sale price was actually paid or fixed in good faith? OPD. (3) Market value? P.Ps. (4) Whether the suit is time‑barred? OPD (5) Whether the sale in dispute is not pre‑emptible? OPD. (6) Relief. In his statement, learned counsel for the plaintiff‑respondent admitted sale price which obviated the necessity of giving findings on issues relating to fixation and payment of sale .price as also the market value of the land in dispute.

4. Upon review of the. evidence adduced by the parties, the trial Court found that as owner of estate, plaintiff had better right; that the sale was pre -emptible; that the suit was not barred by limitation and consequent upon these findings, decreed the suit to the respondent on 15 ‑12‑1976. In appeal filed against the decree of the trial Court, only two points relating to urban character of the property sought to be pre‑empted and bar of limitation to the pre‑emption suit were canvassed. Both the points were answered against the appellants in the lower Appellate Court and their appeal was dismissed on 26‑10‑1981 by learned District Judge, Sialkot. This is how they have come up on revision to this Court. As said it the very opening portion of the judgment, only point argued at the hearing for de6sion was the question of limitation and no other.

5. On behalf of the petitioners, it was submitted by the learned counsel that possession of the land in dispute was taken or. 13‑9‑1973, when parties to the sale appeared before the Revenue officer and admitted safe of the land, acknowledged receipt of consideration for it and transfer of possession under the sale and mere postponement of the attestation of mutation for payment of District Council fee and verification of entries by the Girdawar, neither detracted from completeness of sale nor factum of transfer of possession under it. In nutshell, argument advanced by the learned counsel was that period of limitation for pre‑emption suit must be reckoned from 13‑9‑1973 and not 15-12‑1973, when the sale‑mutation was eventually attested by the Revenue Officer. In order to fortify his contention on transfer of possession of the land in dispute on 13‑12‑1973, the learned counsel referred to oral evidence produced by the petitioners as also the entries in Revenue Records. Contrary to these contentions, learned counsel for the plaintiff‑respondent supported the judgments rendered in the Courts below and submitted that question of limitation had been correctly resolved in favour of the respondent and there was no scope for interference with the agreed findings already recorded on this point.

6. I have carefully read the record. It is sufficiently clear to convince that the contention by learned counsel for respondent had much weight and substance in it. Before taking up oral evidence for its review en merits, I shall advert to the documentary evidence. In all, there are four documents in number and these were placed on file as Exhs.F.1 to P.4 by the respondent. Petitioners felt content with producing oral evidence only. Exh.P.1 is copy of Parclia Khatauni for the year 1974 relating to the land in dispute. It showed land in dispute was recorded in the ownership of the petitioners and its possession was with them. As it was a document pertaining to the year 1974, it shall not be helpful for assisting the decision about the time of transfer of possession of the land to the petitioners. Exh.P.2 is a certified copy of sale mutation in question. It was entered on 13‑12‑1973 by the village Patwari and placed before the Revenue Officer on the same day. Proceedings recorded on the mutation‑sheet on that date showed that the vendor alongwith vendees, identified by Muhammad Akbar village Lambardar and Muhammad Ali Pattidar appeared before the Revenue Officer and acknowledged sale of the land in dispute, receipt of consideration in the sum of Rs.1,000 and transfer of possession under the sale. However, attestation of mutation was postponed to a future date for verification of entries by the Girdawar and payment of District Council's fee. Again, on 15‑12‑1973, mutation was put before the Revenue Officer at Jalalpur and was finally attested by him in favour of the petitioners. Exh.P.3 is a copy of Jamabandi relating to the land owned by the respondent. It proved his superior right of pre‑emption. Exh.P.4 is a copy of an extract from crops‑inspection register w.e.f. Kharif 1971 to Rabi 1973. It too (lid not help the petitioners because in these harvests, previous owner was recorded in possession as Khud‑Kasht. This was all the documentary evidence formally placed on file. Trial Court's record has on it, two extracts from crops inspection register relating to Khasra Nos. 472 and

794. First relates to an entry of crop Rabi 1974, recorded on 4‑4‑1974 and the other of crop Kharif 1974 inspected on 2‑11‑1974. Both these documents were not formally tendered in evidence and made part of record. Therefore, those could not be read as admissible pieces of evidence. As to the date of entry of sale‑mutation, extract from daily‑diary of the village Patwari was not brought on record to show as to who reported the sale to him and what were its contents, no serious attempt appeared to have been made to produce any material from Roznamcha Waqiati to support change of the entry regarding possession in favour of the petitioners. There is another circumstance to be noted in this behalf. Noor Ahmad, a co‑vendee appearing as D.W.3 admitted that sale‑price was paid in instalments to the vendor and a receipt on final payment of instalment was reduced to writing. Even that document has not been placed on file. A close look at entries in Revenue Records did not help and advance the case of petitioners as regards transfer of physical possession of the land under the sale, either on 13‑12‑1973 or a little before that date. Like the entries in Revenue Records, oral evidence produced by the petitioners to establish transfer of possession before attestation of the sale‑mutation was both insufficient and unconvincing. Statement of Abdur Rashid vendor, Nazir Ahmad, a contractor, who was shown to have filled in the pits on the land and also constructed a wall around it as also the self‑serving testimony of a co‑vendee namely Noor Ahmad as D.W.3, was upon its critical analysis not found reliable in the Courts below, and in my view rightly, because in absence of better evidence it could not have been taken as a truthful and acceptable version. Respondent denied transfer of possession of the land before 15‑12‑1973. Revenue Record indicated that the land in dispute was cultivable. D.W.3 deposed that he was in service and posted at Daska at the time of sale. He further deposed that the land was not under cultivation. Mere statement to a village Patwari at the time of and for the purpose of entry of a sale‑mutation, and its repetion, before the Revenue Officer that possession of the land sold was transferred was hardly a convincing material to rest an affirmative finding on it. More creditable evidence was required to be given which could serve as notice to a would‑be pre‑emptor that material change had taken place on the spot. That kind of p evidence was clearly lacking in the instant case. In taking this view of the record, I feel fortified by judgment of my learned brother Muhammad Ilyas, J. in case of Mureed Hussain and another v. Muhammad Shafi and another 1980 CLC 1753 and my own judgment in Ajun Khan v. Muhammad 1985 CLC

728. On record, therefore, it is not established that actual possession of the land was transferred under the sale at a point of time separated for more than a year from the date of institution of the pre‑emption suit in the trial Court. Having regard to the aforesaid, there is no room to disturb an agreed finding on a question of fact based upon proper appreciation of evidence led in the case. Civil revision, accordingly, has little substance and is, accordingly, dismissed with no order as to its costs in this Court. Records be returned. H.B.T./N‑40/L Revision dismissed.