' JAVED IQBAL, J.-- This appeal is directed against the judgment dated 7-2-2001 whereby R.S.A.
Preferred on behalf of respondents has been accepted.
2. The facts of the case have been mentioned in the judgment impugned in extenso and as such reproduction whereof would be of no use.
3. Khawaja Muhammad Farooq, learned Senior Advocate Supreme Court and Mr. Gulzarin Kiani, learned Advocate Supreme Court entered appearance on behalf of appellants and contended that the entire evidence could not have been reappraised by the learned single Judge in chambers in view of the provisions as contemplated in section 100, C.P.C. And the learned Judge should have confined only to the question of law or usage having the force of law or decision having failed to determine some material issue of law and usage having the force of law. It is pointed out that there was neither any substantial error nor defect in the procedure nor any illegality has been committed by the learned Appellate Court hence the question of interference of the learned High Court in the judgment of First Appellate Court does not arise. It is also pointed out that the judgment impugned is not in consonance with the dictum laid down in case Madan Gopal v. Maran Bipari PLD 1969 SC 617 because there was no occasion for the learned single Judge to reverse the findings of learned Appellate Court after having reappraisal of the entire evidence which is not warranted under section 100, C.P.C. It is next contended that the learned Appellate Court has given cogent reasoning while deciding Issues Nos.2, 3, 5 and 6 which was never taken into consideration while interfering in the judgment which resulted in serious miscarriage of justice.
It is next contended that the documentary evidence such as the receipt dated 4-5-1977 (Exh.D.1) has been misinterpreted and, misconstrued by ignoring the fact that possession given under the said receipt cannot be equated to that of a possession under the law. In order to substantiate his esteemed view Mr. Gulzarin Kiani, learned Advocate Supreme Court contended that definition of sale given in section 3(5) of the Punjab Pre-emption Act, 1913 has been ignored which covers a wider range than the definition of sale as mentioned in section 54 of the Transfer of Property Act (Act-IV of 1882). Mr. Gulzarin Kiani, learned Advocate Supreme Court referred case Karim v. Fazal Muhammad Shah PLD 1967 SC 411 in support of the said contention. It is argued that the statements Of Muhammad Saeed Qureshi (D.W.2) and Saad Ullah (D.W.4) have not been appreciated in its true perspective. It is pointed out that Muhammad Saeed Qureshi (D.W.2) has mentioned in an unambiguous manner that possession was given to the respondents on 4-5-1977 which was also acknowledged by Saad Ullah (D.W.4) who is one of the vendees. It is next contended that copy of Khasra Girdawari from Kharif 1975 to Rabi 1979 (Exh.D.6) and Khasra Girdawari (Exh.D.3) were never taken into consideration concerning the possession of the respondents and moreso the physical possession of the appellant No,1 (predecessor-in-interest of appellants Nos.2, 3 and 4) has been proved under the sale which was completed in all respects in May, 1977 except the sanction of mutation which was got attested on 9-5-1979. It is urged emphatically that the Punjab Preemption Act, 1913 makes it abundant clear that in case the possession under the sale is given, the limitation starts from the date of attestation of mutation. In this regard reference has been made to case Sher Muhammad v. Rajadha PLD 1981 SC 591, Allah Yar v. Raja 1989 SCM R 802, Ghulam Sarwar v.
Mazhar Ahmad PLD 1995 SC 677 and Ahmad v. Noor PLD 1997 SC 371. It is pointed out that there is no cavil to the proposition that if the possession is delivered prior to the sanction of mutation possession will be treated under the sale. It is next argued that Mutation No,79 was sanctioned on 9-5-1979 pursuant to the decree, dated 26-2-1979 passed by the learned Civil Judge, Sargodha, which was entered by the Halqa Patwari on 8-4-1979 and sanctioned on 9-5-1979 when admittedly the suit was filed on 10-5-1980 which is barred by time in view of the provisions as contemplated in section 30 of the Punjab Pre-emption Act, 1913 which provides the period of limitation as one year either from the date of attestation of mutation or from the date of taking possession of any part of land under the sale. According to Mr. Gulzarin Kiani, learned Advocate Supreme Court the possession of land in question was taken prior to the date of attestation and as such the suit was barred by time. Khawaja Muhammad Farooq, learned Senior Advocate Supreme Court while adopting the arguments of Mr. Gulzarin Kiani, learned Advocate Supreme Court, however, highlighted the delivery of possession by referring Khasra Girdawari and contended that the suit was definitely barred by time. It is wroth mentioning that the above mentioned contentions in fact have been raised by Khawaja Muhammad Farooq, learned Senior Advocate Supreme Court as well as Mr. Gulzarin Kiani, learned Advocate Supreme Court while arguing the appeal.
4. Ch. Mushtaq Ahmad Khan, learned Senior Advocate Supreme Court entered appearance on behalf of respondent No,1 and supported the judgment impugned for the reasons enumerated therein with the further submission that the provisions as contained in section 100, C.P.C. Do not bar the learned High Court to examine as to whether the controversy has been set at naught in accordance with law or otherwise? It is next contended that the learned Appellate Court has not examined the legal and factual aspect of the controversy which resulted in serious miscarriage of justice and moreso the conclusion as arrived at by the learned Appellate Court was not in consonance with the evidence which has come on record and therefore, the learned single Judge in chambers has not committed any illegality by interfering in the judgment delivered by the learned Appellate Court being perverse and laconic. Ch. Mushtaq Ahmad Khan, learned Senior Advocate Supreme Court has referred his plaint wherein specific date i,e, 9-5-1979 qua sale has been mentioned. The learned Senior Advocate Supreme Court has also referred the written statement whereby it has been admitted in a categoric manner that the mutation was got attested on 9-5-1979 but the transaction struck on 4-5-1977. It is also contended that possession prior to sale has not been established and therefore, the suit cannot be considered as barred by time. The learned Senior Advocate Supreme Court has discussed sections 10 and 120 of the Limitation Act, 1908 and section 30 of the Punjab Pre-emption Act, 1913. In order to substantiate his view point reference has been made to case Maqsood Mai v. Abdul Rashid PLD 2006 Sc 306.
5. We have carefully examined the respective contentions as agitated on behalf of the parties, perused the entire evidence which has come on record and examined the judgments of all the Courts below including the judgment impugned. We have carefully examined the nature of document (Exh.D.1) which at the best can be equated to that of agreement to sell. It is, however, to be kept in view that "agreement to sell" and "sale" are neither synonymous terms nor interchangeable. Any possession which is obtained under an agreement to sell cannot be considered as a possession under the sale especially for the purpose of limitation. It can, therefore, safely be inferred that the possession was never taken under "sale" but pursuant to the mutation got attested on 9-5-1979 (Exh.P.2). Even otherwise it is the case of appellant that sale was completed when the balance amount was paid and there is no denying the fact that the balance consideration amount was paid when mutation was attested on 9-5-1979. In order to prove Exh.D.1, Muhammad Saeed Qureshi entered appearance as D.W.2 whose evidence is vague and sketchy as he could not mention the exact amount received by him. He also failed to make mention about the arbitration proceedings which were made rule of the Court. It is amazing that he could not mention that as to whether possession was given after the mutation was got attested or otherwise. He is not clear that how much was the exact consideration. He also failed to point out in an unequivocal manner that as to whether the total sale consideration amount i,e, Rs,76,000 was received by him or otherwise? The statement of Muhammad Saeed Qureshi (D.W.2) hardly renders any assistance to the case of appellant. In so far as the statement of Ghulam Hussain (D.W.1) is concerned it is really injurious and detrimental to the claim of appellant who stated in an unambiguous manner that consideration was paid at the time of mutation and that possession was delivered thereafter the statement of Ameer Haider (D.W.3) has been examined indepth and the only inference that can be drawn is that receipt Exh.D.1 was never executed. The statement of Saadullah (D.W.4) deserves little consideration in view of the statement of Ameer Haider (D.W.3). The learned trial Court has taken all the pain to examine the controversy and the conclusion arrived at being unexceptionable does not warrant interference, relevant portion whereof is reproduced hereinbelow for ready reference:--- "Issue No,1 ' The disputed land is agricultural one. The plaintiff got the statement of its net produce, for the year preceding the transaction and valued the suit, at the fifteen times of the net profits. Court-fee of the value of not less than Rs,8,445 has been paid and the stamp paper obtained and filed. There appears to be no defect in the valuation. The plaintiff has rather been more careful, while paying the court-fee with regard to the tract, which did not produce anything, and paid the fee according to its value price. There is no rebuttal to it and hence the issue goes against the defendants. Issue No,2 ' In case the time limitation is calculated from the date of mutation, it is alright and not time- barred, but the defendant side has taken the stand that the possession had already been taken over by them, not later than 4-5-1977, when an amount of Rs,50,948.20 was paid to the vendor, vide receipt (Exh.D.1) of the date and the possession was given by the vendor.
' Before threshing out the veracity of the receipt (Exh.D1), it is pertinent to point out that the money in the receipt is not in round figures and is strangely to the extent of Paisas 20. This has never been the practice. The land admittedly valued much more than this amount and the advance could be Rs,50,000 or Rs,60,000.. The figuring itself creates doubt, about the genuineness of the amount paid and received and about the execution of the receipt validly.
' This has been admitted by the parties that the transaction cropped up from an arbitration agreement which too is silent about the part payment of the said amount. The same is the case with the award, which was made a rule of the Court, resulting in the decree the basis of the impugned mutation.
' The receipt (Exh.D.1) was executed by D.W.2 who sold out the land, on behalf of his grandson.
Although the execution admits his signatures Annex at Exh.D.1/A yet he says that he does not remember, the total value of the land sold. The D.W. Is a party to the transaction but he does not know, if the Arbitrator pronounced his award or not, and got it made a rule of the Court, or not. The statement of the execution of Exh.D.1 is nothing but reiteration of not knowing and "not remembering". He said that the amount was received by his servants, whereas D.W.3 deposed that the amount of the receipt (Exh.D.1) was received by D.W.2 himself. Such a document, thus, can hardly be believed the executant of which is not sure of what he executed and what for. This receipt, therefore, does not help the contention of the defendants, that they got the possession under this document."
6. We have no hesitation in our mind that the authenticity and genuineness of Exh.D.1 is not above board. Insofar as, Khasra Girdawari is concerned no presumption of correctness can be attached to the entries of Khasra Girdawari like those appearing in Jamabandi. This view point finds support from the dictum laid down in case Muhammad Akram v. State 1977 SCM R 433 and Abdul Majid v.
Muhammad Ashraf 1994 SCM R 115.
7. It also transpired from the scrutiny of record that at first instance the land in question was sold through arbitration and all the appellants were party to the arbitration agreement. It hardly makes any difference as to whether they have mentioned their respective shares or otherwise as the amount was received in lump sum and one mutation was got recorded and thus, the transaction cannot be considered as divisible. Besides that the respondent was not a party to the arbitration proceedings.
' In view of what has been discussed hereinabove the appeal being devoid of merit is dismissed with costs.