1994 PLP 1180 (CLC)

Allah Yar v. Raja 1989 SCMR 802; Abdul Ghani v. Lal Bux 1989 CLC 241; Imam Ali Shah v. Muhammad Sharif Khan 1976 SCMR 362; Iqbal Muhammad Khan v. Abdul Haq Ch. 1983 SCMR 567 and Elahi Bakhsh v. Balqees Begum 1992 SCMR 2443 ref. Ch. Khurshid Ahmad for Appellants. M. Zainul Abidin for Respondents. Dates of hearing: 21st and 2nd November, 1993. The only point urged and falling for determination, in this regular second appeal, is `whether the suit for pre‑emption filed by respondents in the Court of first instance was barred by time?

2. The facts in brief, are: that on 23‑2‑1965 Farzand Ali reported to the Patwari that he had made the sale of agricultural land measuring 124 Kanals 18 Marlas situated in the area of Mauza Daggar Rohtas Gharbi, Tehsil Bhakkar in favour of Khushi Muhammad, Sher Muhammad and Abdul Aziz, herein appellants; that he had received the entire consideration, delivered its possession to the vendees and prayed that the mutation of sale be attested. After recording his the concern Patwari produced the vendor as well as vendees Officer who recorded their statement and postponed the proceedings to some other date for attestation of mutation. It was on 17‑7‑1967 when mutation was attested. Feeling aggrieved, Allah Bakhsh respondent instituted a suit for pre‑empting the above sale. The suit was contested. The appellants, in their written statement, took up the plea that the sale was made by Farzand Ali on 23‑2‑1965; that he had received the entire consideration on that date and delivered the possession of the suit land to the knowledge of the respondent. On these facts, it was pleaded that the suit was barred by time under section 30 of the Punjab Pre‑emption Act (I of 1913).

3. After recording the evidence of the parties and after going through the material brought on record, the learned Court of first instance found that the appellants/vendees had failed to establish that they had taken physical possession of the suit land on 23‑2‑1965 and so limitation for the purpose of suit started from the date of attestation of mutation i.e. 17‑7‑1967. On this finding, the suit filed by the respondent was found to be within time and was decreed. On appeal, the learned first appellate Court agreed with the conclusions reached by the Court below. Feeling dissatisfied with the above decisions, the vendees have filed the instant regular second appeal.

4. The learned counsel for the appellant contended that the two Courts below erred in law in holding that the suit filed by the respondents was within time. According to the learned counsel, Farzand Ali had made the sale on 23‑2‑1965 to the appellant, received the entire consideration and delivered its physical possession to them on the same day to the knowledge of respondents. On the strength of the entries embodied in the mutation register, it was urged that the facts stated in the mutation carried presumption of truth and Court was bound to accept them unless and until these entries were reputed. Reliance was placed on Allah Yar v. Raja (1989 SCMR 802) and Abdul Ghaffar v. Lal Bux (1989 CLC 241). .

5. On the contrary the learned counsel for the respondents, supported the impugned decision by saying that the question ‑as to whether the suit filed by the respondents was within time or not, was a question of fact which was concluded by the two Courts below in favour of the respondents. On these premises it was argued that this Court had no jurisdiction under section 100, C.P.C. to interfere with such conclusion. Reliance was placed on Imam Ali Shah v. Muhammad Sharif Khan (1976 SCMR 362) and lqbal Muhammad Khan v. Abdul Haq Ch. (1983 SCMR 567).

6. From the foregoing narration, it is, but, clear that the only question for determination is whether the suit filed by the respondents in the Court of original jurisdiction, was barred by time. No doubt, the relevant provision applicable is section 30 of the Punjab Pre‑emption Act. It is applicable to suits for pre‑emption pertaining to sales of agricultural land or village immovable property. It prescribes a period of one year from the date of attestation, if any, of sale by Revenue Officer, having, jurisdiction, in the register of mutation maintained under the provision of Punjab Land Revenue Act, or from the date on which the buyer takes physical possession of any part of such land or property/whichever date is earlier. Reference be made to Elahi Bakhsh v. Balqees Begum (1992 SCMR 2443). Applying this principle to the facts and circumstances of this case, it is crystal clear that the pre‑empted land, at the time of sale, was in possession of tenant/Abdur Reliman. This fact is borne by Khasra Girdawari relating to Kharif, 1965 and Rabi 1966. This tenant was not produced in witness‑box The perusal of Khasra Girdawari further shows that the names of appellants were entered in red ink in the column of tenants. Allah Bakhsh respondent went into the witness‑box and stated in affirmative manner that he was owner of the land in the vicinity of suit land; that the possession of it was taken by the appellants at the time of attestation of mutation. The appellants did not dare to cross‑examine him on this vital aspect. It is settled that if a person comes to a witness‑box and states a fact on oath and is not subjected to cross‑examination by the other party that statement is accepted to be admitted true against party who does not cross‑examine that witness. On these facts the learned two Courts below were correct in coming to the conclusion that the appellants had failed to prove by leading cogent evidence sufficient in quality and quantity to the effect that the possession of suit land had been taken by the appellant/vendees on 23‑2‑1965. The concept of taking physical possession of suit land under section 30 of the Punjab Pre emption Act, 1913, is for the purpose of giving notice .to the intending buyers who might exercise their superior right of pre‑emption. It was the duty of the appellants to prove by unimpeachable evidence that the possession of suit land was taken by the appellants on 23‑2‑1965 in such a manner which warranted notice to the respondents. No effort was made to prove this aspect of the case. On the circumstances noted above, the learned two Courts below were eminently correct and just in reaching the conclusions that the appellants had not proved the taking of physical possession under sale on 23‑2‑1965. This conclusion is based upon objective appraisal of evidence and is in consonance with law. This concurrent finding of fact neither suffers from any misreading/non‑reading of evidence nor is in defiance of any express provisions of law and so is unexceptional under section 100 of C.P.C. The authorities cited by the learned counsel for the appellants proceed on distinguishable facts and are not applicable to the facts and circumstances of the appeal in hand.

7. In the light of foregoing discussion, this RSA is found to be wholly without merit and is accordingly dismissed. The appellants shall bear the costs of the proceedings throughout. H.B.T./K‑113/L Appeal dismissed