2006 PLP 738 (CLC)

MIAN SAQIB NISAR, J.

The present R.S.A. has arisen out of a pre-emption litigation between the parties. The appellants, who are the vendees, have lost at both the forums below. The mutation of sale was admittedly sanctioned in favour of the appellants/vendees on 18-4-1974. The respondents brought a suit for pre - emption on 14-2-1975, which was resisted by the appellants, inter alia on the ground of being barred by time. The defence in this behalf is, that in fact the sale Mutation No.65, under which the land was sold, was entered on 31-5-1973 and the physical possession of the property was also taken over by the vendees, resultantly, under the provisions of section 30 of the Pre-emption Act, the limitation shall commence from the date of the possession i.e. 31-5-1973 and considering this to be the starting point of limitation, the suit brought on 14-2-1975, was out of limitation. Inter alia, the issue of limitation was framed; parties were put to trial and by deciding all the issues against the appellants, the suit was allowed by the learned Civil Judge vide judgment and decree, dated 24-6-1978. The appellants preferred an appeal, but without any success, which stands dismissed on 15-5-1985. It may be pertinent to mention here, that in this decision, application under Order XLI, rule 27, C.P.C. moved by the appellants was also dismissed.

2. Learned counsel for the appellant has only restricted himself to issue No.5 i.e. about the limitation and has argued that the concurrent findings of fact recorded by the two Courts below in this behalf', are erroneous and result of misreading and non-reading of the evidence. He has submitted that the learned Court of appeal has illegally dismissed the application under Order XLI, rule 27, C.P.C., through which, the appellants intended to produce on record the proofs that the mutation was entered on 31-5-1973; the Rapat Rozenameha supported by Khasra Girdawari which establishes beyond doubt that the possession of the suit-land was delivered to the appellants under the sale on 31-5-1973. It is also submitted that from the statement of D.W.1; Shafaullah, D.W.3 Ali Hassan and the appellant, it stands proved that the possession was delivered on the said date.

3. Heard. Without prejudice, even if assuming that the mutation was entered in the relevant register on 31-5-1973, yet it is settled law that any date about the delivery of the possession mentioned in the mutation shall not be taken to be the date of the delivery of possession, which fact, the vendee has to independently prove, where he has set out the defence that the possession was taken over by him under the sale prior to the sanction of the mutation or registration of the sale-deed, as the case may be. Now in order to ascertain, whether the possession was taken over by the appellants as alleged; Shafaullah D.W.1 has not stated a word about it. As regards the D.W.3 is concerned, he is not the owner of the tractor, rather was only a driver and Allah Diwaya, the owner, has not been examined by the appellants to corroborate and support his version. As regards Muhammad Ameer appellant No.1 himself is concerned, suffice it to say, that being party to the litigation, no much credence can be attached to his testimony. As against the above, the respondents examined Fateh Sher vendor, who in clear and categorical terms has stated that the possession of the property was delivered to the vendees/appellants after the sanction of the mutation, which admittedly in this case is dated 18-4-1974. This statement of the vendor, which should be considered to be Most important one, has not been shattered in the cross-examination. Thus, on the basis of all this evidence, the learned Courts below have concurrently found the issue of limitation against the appellants, which findings are not either shown to be the result of any misreading and non-reading of the evidence, or being contrary to law, thus, should be interfered in second appeal.

4. Before parting, it may be observed that the learned Court of appeal has rightly rejected the application of the appellants under Order XLI, rule 27, C.P.C. for the reason, that the appellants were conscious of the nature of the dispute between them and the pre-emptors in this lis, and at the appropriate stage of trial, no effort was made to bring this evidence on the record despite having ample and full opportunity to produce the same. Even otherwise, as mentioned earlier, from these documents, the appellants at the best, want to prove that the mutation was entered on 31-5-1973, but these documents are not the proof about the physical delivery of the possession on the aforementioned date, so as to reckon the period of limitation. In the light of above, I do not find any merit in this appeal which is hereby dismissed. Furthermore, for the same reasons as given by the learned District Judge, and reaffirmed in this judgment, the application for permission to produce the documents (C.M. No.1119 of 2000) also stands dismissed. M.H./M-1185/L Appeal dismissed.