1997 PLP 1617 (SCMR)

MUKHTAR AHMAD JUNEJO, J.‑‑‑Leave to appeal is sought against the judgment dated 18‑3‑1996 delivered by a learned Judge of Lahore High Court in Regular Second Appeal No.36 of 1973. Facts of the case are that respondents Faqir Muhammad, Bashir Ahmad and Hidayat Ullah, all sons of Muhammad Yousaf, purchased from Noor Muhammad and others suit land mentioned in Suit No.61 of 1971 and such sale was reflected in a mutation dated 28‑2‑1970. Faiz Bakhsh, predecessor of the petitioners, filed Suit No.61 of 1971 for pre‑empting purchase of suit land by the respondent. The suit was contested by the respondents in the trial Court, where in their written statement, they challenged the suit to be time‑barred, and fought the case on merits too. The trial Court framed issues including the issue on the point of limitation. Under the judgment dated 19‑9‑1972 the trial Court decided the factual points and found the suit to have been filed within time and decreed it in favour of Faiz Bakhsh, who was required to deposit in Court by 26‑10‑1972 a sum of Rs.7,000 minus the amount already deposited. The said judgment and decree were upheld in appeal by the District Judge, who found the suit within time and dismissed the appeal on 22‑1‑1973. In second appeal the High Court, under the impugned judgment, set aside the judgments and decrees of the Courts below and accepted the appeal. Hence this petition. Mian M. Zafar Yasin, learned Advocate Supreme Court appearing for the petitioner argued that the limitation for filing the suit of pre‑emption started running from the date of attestation of the sale‑deed. In support learned counsel cited the cases of Ghulam Sarwar v. Mazhar Ahmad (PLD 1995 SC 677) and Muhammad Rafi through legal heirs v. Nawab Din (1995 SCMR 303). Under its judgment dated 19‑9‑1972, learned trial Court took view that the story of taking early possession advanced by the respondents did not stand the test of truth and was absolutely false, and that it was not proper to rely upon the Roznamcha Waqiati Exh.D‑1 rebutted by statement of D.W.5. Learned trial Court counted the period of limitation from the date of sanction of the mutation viz 28‑2‑1970 and found the suit filed on 27‑2‑1971 to have been instituted within the period of limitation fixed by section 30 of Punjab Pre‑emption Act, 1913. In appeal, the respondents challenged finding of the trial Court on the point of limitation alone. Learned District Judge, who decided the appeal under his judgment dated 22‑1‑1973, took view that the possession under the sale, was not proved to have been delivered before the mutation was sanctioned and hence the period of limitation was to be calculated from yje the date the mutation was sanctioned and not from 25‑12‑1969, when the mutation was entered and the possession was allegedly taken. Hence the learned District Judge found the suit to have been filed within the period of limitation, after noting the fact that possession of suit property was not proved to have been delivered before the sanction of mutation. Under the impugned judgment dated 18‑3‑1996, the High Court hasl observed that the factum of sale was reported to Patwari Ahmad Bakhsh, who deposed in Court that he recorded Roznamcha Waqiati Exh.D‑1 as per, statements of the vendors, who clearly stated in their statements before the Revenue Officer on 8‑1‑1970 that they had received the consideration and delivered the possession. On the basis of the documentary evidence, as well as on the basis of the evidence of the official witness, that at least the possession was with the vendees on 25‑12‑1969 when the factum of sale was reported to the Patwari and was recorded in the Roznamcha, the High Court was of the view p, that the suit filed on 1‑3‑1971 was beyond the period of limitation as prescribed by section 30 of the Punjab Pre‑emption Act, 1913. The period of one year prescribed by section 30 of said Act, for filing a suit to enforce a right of pre‑emption, has to commence from the date of attestation of the sale by a Revenue Officer charged with sanction of mutation or from the date on which the vendee taken over physical possession of any part of the land under the sale, whichever is earlier. In the instant case, as clarified by the High Court the vendees were in possession of the property in litigation on 25‑12‑1969. Hence the period of limitation would commence from 25‑12‑1969. As such the suit filed on 1‑3‑1971 was clearly time‑barred. View taken by the High Court is unexceptionable. Consequently the leave to appeal is declined and this petition stands dismissed. A.A./F‑4/S?????????????????????????????????????????????????????????????????????????????????????????????????????? Leave refused.