' This revision has been filed by a vendee who was unsuccessful before the two Courts below as a result of the suit for possession through pre-emption being decreed.
2. The precise facts are that the respondents-plaintiffs brought a suit to pre-empt the sale of land the particulars of which are given in the plaint, through Mutation No, 24 dated 26-12-1973. The suit was resisted. There were on the pleadings of the parties as many as 8 issues on merits while the ninth related to the relief. After the parties had led the evidence the issues were decided as follows: ' Issues Nos. 2, 4, 5 and 8 not being pressed were decided in the negative. Issue No, 3 which related to valuation of the suit for purposes of court-fee and jurisdiction was decided in terms that the deficiency was made good in accordance with the order of the Court and that no evidence had been led by the defendant-vendee. It was accordingly answered in the negative. Issue No, 6 relating to preference was decided on the basis of copies of Jamabandis Exhs. P. 3 and P. 4 which were construed to prove that the plaintiffs were the owners in the estate whereas the defendant had no such qualification. Issue No, 7 which related to the consideration was decided on the ground that the sale price was admitted as correct.
' The main issue was regarding the suit being time-barred. The contention of the petitioner- defendant was that there was an entry of mutation made by the Patwari to the effect that possession had been delivered on 10-5-1973. The trial Court was of the view that the documentary evidence on the file did not support the defendant in this respect. Reliance for this finding was placed on the statement of D. W. 1 Mirza Shah Jahan general attorney of the vendor, D. W. 2 Gehna the tenant of the suit land and the statement of P. W. 1 Muhammad Shard. This was vide judgment and decree dated 25-11-1979 passed by Mr. Muhammad Ashraf Shagufta, Civil Judge, Shorkot.
3.There was an appeal which was taken up by a learned Additional District Judge, Jhang being Civil Appeal No, 124/13 of 1981. The judgment and decree of the trial Court was assailed before the first appellate Court on two grounds. The first ground of attack was that the suit was barred by time and the findings of the trial Court on issue No. 1 were unwarranted by law. The second ground urged was that the plaintiffs had failed to pay the proper court-fee within the time fixed by the Court and their plaint was, therefore, liable to rejection. As regards the first ground, the point raised was that possession under the sale had been taken prior to sanction of mutation of sale dated 26- 12-1973. It was urged that under section 30 of the Pre-emption Act, 1913 and Article 10 of the Second Schedule of the Limitation Act, the limitation started from the transfer of possession under the sale.
Reliance was placed on a report recorded by the Patwari while entering the mutation of sale Exh. P.
1 dated 10-5-1973. It was then stressed that the possession of land under the sale already having been delivered to the vendee, this would furnish the starting point of limitation. The first appellate Court rejected this plea on the view that even the Dame Of the maker of this report was not recorded by the Parwari, therefore, relying on the ratio of a pre-partition case of this Court reported as AIR 1925 Lah. 165 it was argued that the report did not have the effect of proving the delivery of physical possession as recorded in the report. The appellate Court, therefore, after considering the pleas of both the parties and appreciation of evidence, formed the view that the physical possession of the land in dispute was not transferred to the petitioner-vendee under the sale earlier than the attestation of the mutation. It was further held that in the circumstances of the case, transfer of physical possession which could give rise to the starting point of limitation had not taken place as the land was under occupation of Gehna D.W. 2 as a tenant for the last 20 years and that position continued even after the sale. It was held that transfer of physical possession in such like cases should be in the nature of an implied notice to all the prospective pre-emptors or to the world at large. The transfer of possession should be such that it should put a reasonable and prudent person on inquiry as to why and how the possession was transferred. The facts of the case according to the first appellate Court were not sufficient to show that such a notice could be presumed or proved in this case. The learned Additional District Judge, therefore, did not feel convinced that the physical possession of the land in dispute was transferred to the petitioner- vendee before the attestation of the mutation. The suit was thus held to be within time. No other issue was assailed before the learned Additional District Judge.
3. The learned counsel appearing in support of this revision has first assailed the findings on the question of limitation. According to the learned counsel, mutation NO. 24 in respect of the sale in question was entered by the Patwari Halqa on 10-5-1973 therefore the suit which was filed on 25- 12-1974, was clearly beyond limitation. Precisely, the case of the learned counsel for the petitioner was that the starting point of limitation was not to be the date of sanction of mutation but the date of entry by the Patwari.
4. I am unable to subscribe to the reasoning advanced by the learned counsel for the petitioner.
The view of this Court has been that even admission by the vendor at the time of making a report to the Patwari or in his statement before the Revenue Officer that possession had been surrendered earlier may be of some use between the parties to the transaction only but cannot be extended to bind a stranger i. e. a pre-emptor. In a pre-emption suit to raise a plea of bar of limitation it has got to be proved by affirmative evidence and established beyond any shadow of doubt that actual physical possession had been delivered to and taken over by the vendee under the sale before the sale was formally given effect to. For this proposition, reference may advantageously be made to a decision of this Court In re : Waris All and 2 others v. Ghulam Rasool and another (1). The correctness of this view has not been assailed before me by the learned counsel with any degree of success. I may also refer to another decision of this Court In re : Murid Hussain and another v. Muhammad Shafi and another (2) wherein it has 'been held that where the vendee failed to establish that he took physical possession of land under the sale before attestation of mutation of sale, a suit filed within one year of sanction of mutation would be within limitation. Therefore no fault can be found with the concurrent view of the Courts below that the physical possession of the land in dispute was not transferred to the defendant vendee under the sale earlier than the date of the attestation of the mutation. This is a pure question of fact and pertains to weight to be attached to evidence and believing and disbelieving of the same. The learned counsel for the petitioner was unable to point out to me any piece of evidence which was sufficient to {{FOOT NOTE}}
(1) 1979 CLC 533 (2) 1980 CLC 1753 {{FOOT NOTE}} ' conclusively establish that physical possession under the sale was in fact delivered on 10-5-1973.
The concurrent finding on the question of limitation, therefore, does not call for any interference.
' The learned counsel relied on the ratio of the decision reported in re: Sher Muhammad v. Rajada and another (1) I have respectfully examined the precedent case. I am of the view that the case would not help the present petitioner for the reason that in the precedent case the concurrent view was that the possession under the sale was delivered to the vendees and sale was complete in the year 1951. The mutation was entered and rejected in view of provisions of section 8 of Act XI of 1951 but was ultimately sanctioned on 30-10-1956 and suit filed within one year from the date of its subsequent sanction. In such a situation, a view was taken that mere non-attestation of mutation initially could not postpone the effect of sale or entitle the pre-emptors to enlargement of the time for the infirmity did not attach to the sale as such but to the incidence of Agricultural Income-tax Act and its payment. It was thus ruled that where possession had been so obtained and there was public notice of it, the limitation would start from the date the vendees came into possession of the land. In the present case, the concurrent findings of the Courts below are against the petitioner and it has been held that it was not established that physical possession under the sale had in fact been delivered earlier to the date of sanction of the mutation. The precedent case is thus distinguishable on facts.
6. The second objection of the learned counsel for the petitioner pertained to non-payment of proper court-fee by the pre-emptors and the same having been allowed to be made up after the period of limitation had run out. Apart from the fact that this objection was not pressed before the trial Court it would be noticed that the deficiency in court-fee was made up in compliance with- the order of the trial Court. The legal position as regards this admits of no double that section 149 of the C. P. C. Gives discretion to the Court to allow payment of deficiency of court-fee at any stage and on such permission being granted and court-fee being paid, it will be deemed as if the fee had been paid in the first instance. None of the courts below have found any contumacy on the part of the pre-emptors. The contention, therefore, cannot succeed in the light of the law laid down in re: Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others (2).
7. The learned counsel appearing in support of this revision petition also sought to re-agitate a ground which had been abandoned before the first appellate Court relating to issue No, 3 touching upon the superior right of pre-emption. Apart from the fact that the finding on this issue by the learned Civil Inga was based on appreciation of evidence, the finding was one of fact. It was not raised before the appellate Court and, therefore, could not be allowed to be raised in revision.
Reliance may be placed on the ratio of the cases of Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others (3) in and Mls. Ahmad Karachi\Halva Merchants and Ahmed Fruit Products v. Commissioner of Income-tax O.
8. There is no case made out for my interference under section 115, C. P. C. The petitioner was unable to show that the Courts below have exercised a jurisdiction not vested in them by law or to have failed to exercise a jurisdiction so vested or to have acted illegally or with material irregularity.
(1) PLD 1981 SC 591 (2) PLD 1982 SC 159
(3) PLD 1:983 SC 68 (4) 1982-SCMR 489 ' Revision is not a rehearing of the entire case de novo. The revision petition is accordingly dismissed. However, there will be no order as to costs.
Revision .