' JAWWAD S. KHAWAJA, J.---The petitioners/defendants/vendees impugn the appellate decree dated 30-5-1984, whereby the decree of the learned trial Court dated 4-6-1983 was set aside and a suit filed by the respondent/plaintiffs/ pre-emptors seeking possession of the suit property through pre-emption, was decreed.
2. The respondents/plaintiffs claimed a superior right of pre-emption on the ground that they were Yakjaddi and were also co-sharers in the disputed land. Their superior right of pre-emption is not disputed by the petitioners.
3. The sole point in contention is whether the pre-emption suit was time-barred. The learned trial Court held that it was time-barred, while the learned appellate Court has reversed this finding. The decree of the learned appellate Court, for reasons appearing below, is not legally sustainable.
4. Briefly stated, the facts of the case are that the vendor made a sale of the suit property in favour of the petitioners/ defendants. This sale was recorded in Mutation No.163 dated 28-2-1981. The case of the petitioners was that the sale had been effected earlier and they had taken possession of the suit property under such sale in May/June, 1980. On this basis, it was contended that the period of limitation commenced in mid 1980 and the preemption suit, therefore, which was filed on 24-2- 1982, was time-barred. The relevant part of section 30 of the Punjab Preemption Act, 1913, which relates to limitation, provides as under:-- "30. Limitation.-In any case not provided for by Arti,:le 10 of the Second Schedule of the Limitation Act, 1908, the period of limitation in a suit to enforce a right of preemption under the provisions of this Act, shall, notwithstanding anything in Article 120 of the said Schedule, be one year--
(1) in the case of a sale of agricultural or of village immovable property, from the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such land or property, whichever date shall be the earlier;"
5. The case of the respondents/ plaintiffs was that limitation commenced from 28-2-1981 which was the date on which sale Mutation No.163 was sanctioned. In order to decide the sole point in contention between the parties, it is necessary to determine if the petitioners took possession of the suit property under the sale in 1980 as asserted by them. The onus of proving this fact was on the petitioners/defendants.
6. Learned counsel for the petitioners,,, has taken me through the testimony of the D. Ws. Including Fateh Sher defendant, who appeared as D.W.3. These witnesses testified that the petitioners had taken possession of the suit property under the sale in 1980, much before the sanctioning of the mutation,. More importantly, learned counsel for the petitioners took me through the testimony of P.W.1 Langar Khan, P.W.2 Allah Ditta and P.W.6 Muhammad Azam, who were examined by the respondents/plaintiffs. P. W.1 deposed that at the time of sale, the land was being cultivated by the vendor himself. On a suggestion put to him, he stated that he was not aware that the petitioners/vendees had sown the crop for Rabi 1981. PW.'2 also could not deny that the petitioners had sown the crop of Rabi 1981. He merely expressed his ignorance as to this fact. It is also important to note that the testimony of P.W.1 and P.W.2 was recorded on 7-11-1982. P.W.1 deposed that the sale had been effected two years earlier. This would be confirmation of the fact that the sale was effected in 1980.
7. P.W.6 Muhammad Azam recorded his testimony on 21-5-1983 and stated that the sale had been effected 2 1/4 years earlier. This again would mean that the sale was made in 1980. Muhammad Azam, who appeared as P.W.6, attempted to cover up for the respondents/plaintiffs by testifying that the land was being cultivated by the tenants of the vendor, who had been told to attorn to the vendees. This testimony, however, is in direct conflict with the evidence of P.W.1 Langar Khan, who, as noted above, stated that the land was being cultivated by the vendor himself.
8. The other important evidence in the case is the Khasra Girdawari (Exh.D.1). This shows that during Rabi 1981 the petitioners were in possession of the suit-land. Learned counsel referred to the case titled Malik Pir Baldish and others v. Ali Muhammad. (1992 SCM R 1031), which enunciates that the crop for Rabi of a year is sown in the month of October of the previous' year. The above evidence unequivocally, demonstrates that the petitioners had taken possession of the suit-land in 1980 and, therefore, the preemption suit filed on 24-2-1982 was time-bared. This evidence was duly considered by the learned trial. Court while non-suiting the respondents/ plaintiffs.
9. I have gone through the impugned appellate judgment, with the assistance of both learned counsel. The learned appellate Court has seriously misread the record. The testimony of P.Ws. 1, 2, and 6, which has been considered above, was not discussed by the learned appellate Court. The learned Court only made a brief narration of what had been stated by P.W.6. It, however, did not consider the evidence of the aforesaid P.Ws., which itself supports the case of the petitioners/defendants. The Khasra Girdawari (Exh.D.1) was also ignored on the specious ground that an application had been given by a tenant for correction of the Khasra Girdawari. Here it may be noted that the District Collector had rejected the said application vide order (Exh,P.9) dated 24- 4-1983.
10.