P L D 1988 Peshawar 138 (PLP)

(3) Whether the plaintiff is estopped by his own conduct? (4) Whether the suit transaction is not pre‑emptible? (5) Whether the plaintiff has got superior right of pre‑emption? (6) Whether the sum of Rs.7,750 was fixed or paid in good faith? (7) Market value? (8) Relief. The pre‑emptor produced Patwari Halqa with record as P.W.1 and recorded his statement as P.W.2. Vendee recorded his statement a: D.W.1 and examined Ghulam Haider D.W.2, one Sher Zaman D.W.3 and Maroof D.W.4.

2. The trial Court found the plaintiff a contiguous owner and determined the issues of estoppel and limitation against the vendee and consequently granted a decree to the pre‑emptor as against the vendee on payment of the full price, which was deposited in time. Appeal taken by the vendee before the District Judge had succeeded on the point of limitation basing judgment on the entries of Khasra Girdawari and alleged admission on the part of the pre‑emptor about the possession of the defendant respondent over the suit land under a sale effected some six years back and consequently the pre‑emptor's suit was dismissed where against the instant revision petition was filed.

3. After hearing the learned counsel for the parties at some length and going through the evidence on record it was found that the learned appellate Court has not properly conducted the judicial proceedings as the order sheet maintained by him reports that he has heard arguments in the case on 18‑12‑1982 and fixed the case for orders on 22‑12 1982. H2 could not write judgment due to his pre‑occupation in trial of Sessions Cases and as such adjourned the case for orders to 7‑2‑1983 when on the date he fixed the case for fresh arguments on 24‑2‑1983 without giving any reason for his such action. On 24‑2‑1983 he heard the arguments and by the impugned judgment accepted the appeal, set aside the judgment and decree of the trial Court and consequently dismissed the pre‑emptor's suit. The order sheet does not reveal if he has ever called upon or otherwise he felt the necessity for additional evidence however, he has got an affidavit dated 24‑2‑1983 from Sher Zaman defendant respondent on file to which he referred in his judgment that there has been placed on record an affidavit by Sher Zaman son of Ali Akbar regarding correctness of his name and his parentage 'in the Khasra Girdawari and that there was no counter‑affidavit forthcoming to rebut the contents appearing therein. However, the judicial file was also to carry a counter‑affidavit of the same date filed by Ali Muhammad and also signed by the Presiding Officer reporting that in the Khasra Girdawari the entry was not in the name of Sher Zaman son of Akbar Ali and that the said entry pertained to one Sher Muhammad son of Ali Akbar with whom the defendant‑respondent had no concern. The learned appellate Court has thus, been found to have on one hand wrongly allowed the production of additional evidence at the appellate stage in affidavit and had further also wrongly observed that there was no counter‑affidavit from the opposite side on the point of the entries of Khasra Girdawari.

4. The learned appellate Court was to condemn the trial Court for misreading of evidence and was to allow all credit to the entries of Khasra Girdawari Exh.P.W.l/D‑1 to which I will adhere at a later stage. He was further to refer to the admission of the plaintiff/ petitioner in the cross‑examination about the factum of possession of the defendant/ respondent over the suit land stating: Unfortunately the learned appellate Court in this regard was found to have misread the evidence himself as the plaintiff /petitioner had said: It would thus come to that a denial on the part of the plaintiff petitioner was misread by the appellate Court for an admission on his part. Plaintiff /petitioner had clearly denied that the suit land was purchased by the defendant/respondent. some 6 years back and further staled to remember only that defendants respondent had taken the possession of the suit land subsequent ‑to a decree in his favour which is dated 9‑4‑1979.

5. Coming to the evidence of the parties on issue of limitation which although in the facts and circumstances of the case the issue should have been framed if the pre‑emption suit was time‑barred as because apparently the pre‑emption suit was within time having been filed within one year of the date of the attestation of the sale mutation and it was the defendant to plead a positive assertion that he has been rather delivered the physical possession of the suit land under the sale earlier thin the date of the attestation of the mutation. Anyhow there has been adduced evidence by the vendee to prove the positive assertion of delivery of physical possession under the sale which shall be read if it proves the factum of delivery of physical possession under the sale before the attestation of mutation or not: In the written statement filed on 22‑6‑1980 it was claimed that the suit land was purchased in 1976 and physical possession since obtained. In. the oral evidence particularly his own statement recorded on 10‑12‑1980 vendee stated that he had purchased the suit land some five years prior to the sale mutation Which was effected on 28‑5‑1979 and as such the sale was made sometime in the year 1974. He claimed to have since been delivered the possession with continuation. He also claimed to have got the entries in Khasra Girdawari in his name. His witness Ghulam Haider D.W.2 stated that the suit land was first sold by the vendor to him in the year 1971‑72 and he remained in possession for 2/3 years and that the transaction was broken where-after he was returned the money and that some 5 years back the suit land was sold to defendant/respondent He was not present at the time of the transaction. His statement was recorded on 10‑12‑1980 and as per his statement the suit land was purchased by the vendee in December, 1975. So is the statement of Sher Zaman who also admitted to be not present at the time of the sale. Maroof D.W.4 did not remember about the timing of the sale. In the plaint of the consent decree a prayer for declaration under specific performance of contract for attestation of mutation and in alternative for recovery of the, amount paid to the vendor was made on the basis of a deed dated/ 17‑6‑1978, photostat copy placed on file but the said document was neither filed nor evidence adduced thereto at the trial in the pre‑emption case. The said suit was decreed through a compromise and the defendant was granted a decree for specific performance of the agreement when in conformity thereof the sale mutation was effected in the absence of the parties. In the Khasra Girdawari Exh.P.W.l/D‑1 Khasra 146.1383 is recorded in possession of Ghulam Haider D.W.2 as a tenant‑at‑will Bila Lagan Bawaja Beh till Rabi 1975 when in Kharif 1975 and onward the possession of owner Samundar Khan in self cultivation is recorded. There is entry of Kharif 1978 dated 29‑10‑1978 in favour of one Sher Muhammad son of Ali Akbar Tanoli on account of mortgage with possession and onward in Rabi 1979. Thus; from the evidence on record the vendee/ respondent could not prove the acquisition of physical possession under a sale allegedly effected in 1974, 1975 or 1976 while during the period the possession has continued with the owner as per, Khasra Girdawari. The possession was delivered to one Sher Muhammad S/o Ali Akbar in Kharif 1978 as a mortgagee and the same possession cannot be taken benefit of by Sher Zaman son of Akbar Ali the" vendee only on the basis of affidavit filed in the appellate Court without rhyme and reason which was also rebutted in counter affidavit filed, by the pre‑emptor petitioner.

6. The learned appellate. Court has placed reliance on P L D 1961 Pesh. .33 and P L D 1969 Pesh. 178 when in the facts of the cases it was 'found that a co‑sharer .of an undivided owner is capable of sale and‑ is also capable of delivering physical possession to the vendee if the two co‑sharers are in cultivation of their own share each and one of them transfers his share along physical possession to the vendee and that in such circumstances the change of possession to a stranger will be a clear notice to the co‑sharer who will be put on inquiry and accordingly obliged to pre‑empt the sale within one year of the date of delivery of physical possession. On the other hand reference was made to P L D 1984 Pesh. 94 in which amongst other things it was held that sale by a consent decree by a Court was not a sale and that a vendee requires to produce cogent evidence about particular date of the delivery of physical possession under a sale and that the vendee has to fail on the issue of limitation in case he does not produce congent evidence to establish the delivery of physical possession under a sale on a certain and definite date.

7. In view of the discussion as above it could not be said that the defendant/ respondent has ever proved with definiteness and certainty the delivery of physical possession of the suit land to him under a sale prior to the attestation of the mutation and as such in the circumstances the limitation for pre‑emption suit shall commence from the date of the attestation of the mutation and consequently the finding of the appellate Court on the issue will be upset and that of the trial Court would be upheld.

8. As far the other issues of superior right of pre‑emption, estoppel and market value are concerned there have not been thrown any challenge by the parties thereto since the pre‑emptor proved to be a contiguous owner; there has not been led any evidence on the point of estoppel and parties had agreed to the fixation of the market price in the sum entered in the sale mutation.

9. As a prelude to the aforegoing discussion after having found the learned appellate Court falling prey to the misreading of evidence and misinterpretation of the revenue record and other evidence this Court accepts the appeal, sets aside the judgment and decree of the appellate Court and consequently restores the judgment and decree of the trial Court. Parties are, however, left to bear their own costs. A.A./630/P Appeal accepted.