' Vide judgment and decree dated 10-11-1966 passed on appeal, learned District Judge, Attock, accepted the appeal, reversed the judgment and decree dated 20-4-1966 of the trial Court and dismissed the suit for pre-emption on account of being barred by limitation. Facts are, that a piece of land measuring 5 Kanals 12 Marlas comprised in Khasra Nos. 1934, 1936 situated in the Revenue estate of Malak Mala, was transferred by way of sale by Ajmal Khan, its owner for an ostensible sale price of Rs.1,900 to Muhammad son of Kala, vide sale Mutation No.338 attested on 5-6-1964. Ajun Khan claimed right of prior purchase and asserted his right of substitution in a civil suit against, the vendee. Right of pre-emption was based (i) being an heir (Collateral), (ii) owner in the revenue estate and its sub-division. Civil suit was instituted on 5-4-1965. Vendee defended his title to the suit land. Written statement containing the defence was filed in court. It was averred that the suit land was purchased on 7-6-1958 and physical possession was also taken under the sale then.
Since the Revenue estate was under consolidation, a petition was presented before the Consolidation Officer who recorded the statements of the parties wherein factum of sale and transfer of physical possession was admitted by the parties. Therefore, it was stated in the written statement that mutation incorporated earlier completed sale evidenced by application and the statements. Suit was thus resisted on the bar of limitation. Learned trial Court settled the following issues:-
(1) Whether the plaintiff has a superior right of pre-emption? O.P.
(2) Whether Rs.1,900 were fixed in good faith or actually paid as the price of the suit land? O.P.D.
(3) What is the market value of the suit land? O.P.P.
(4) Whether the suit is within time? O.P.P.
(5) Relief.
2. Both the parties produced oral and documentary evidence in support of the issues above-noted.
Plaintiff-pre-emptor produced village Patwari P.W.1 and tendered in evidence pedigree tables Exh.P.1 to Exh.P.3 in affirmative evidence and recorded his own statement after the defendant had closed his side of defence. Defendant produced three witnesses and himself appeared through an attorney Shah Hinchi Khan. Vide judgment and decree dated 20-4-1966, plaintiff's suit was decreed by the learned Civil Judge. Issue No.1 was found in favour of the plaintiff. Under issues Nos.2 and 3, the Court found a sum of Rs.1,900 as the sale price of the suit land. The trial Court also found that the suit did not suffer on account of bar of limitation as pleaded by the defendant vendee. Vendee appealed. Learned District Judge, Attock interfered, reversed finding on issue No.4, and found that the suit was hit by the bar of limitation. Consequently, as a result of finding on issue No.4, the appeal was accepted and the suit was ordered to be dismissed vide judgment and decree dated 10-11-1966. The plaintiff agitated the correctness of finding recorded on issue No.9 in second appeal before the High Court. Civil appeal was admitted for hearing on 6-2-1967 and has come up today for final hearing in presence of both the learned counsel for the parties.
3. I have heard learned counsel for the parties and have also examined the trial Court's record, with their assistance. Sh.Zia-ud-Din, learned counsel for the appellant contended that the Court of appeal has seriously misread the evidence and misconstrued the statutory provision of, law in holding that the suit was barred by limitation. Limitation for a pre-emption suit was governed by Article 10 of the Limitation Act, 1908, section 30 of the Punjab Pre-emption Act, 1913 and in certain contingencies the Residuary Article 120 of the Limitation Act. In the case under consideration, learned counsel contended that neither prior completed sale nor transfer of physical possession of the alienated land has been proved prior to the attestation of mutation. Therefore, terminus a quo would be the date of the attestation of sale mutation i.e. 5-4-1964. From the date of mutation the suit was evidently within time. Learned counsel also contended that bar of limitation was pleaded by the vendee in his written statement, therefore, the frame of issue and placement of onus probandi was both erroneous. It was the duty of the vendee defendant to prove, both the date of actual sale, and transfer of physical possession as both were claimed to have preceded the entry and attestation of the sale mutation. Learned counsel also submitted that even after the statements Exh.D.W.1/2, Exh.D.W.1/3, entries in the Revenue Record did not show any change in regard to transfer of possession. In fact, the possession of the defendant vendee was shown in the capacity of a tenant-at-will paying Batai rent with effect from Kharif 1963 (19-10-1963). Prior thereto his possession was not supported by entry either in the Jamabandi or in the Khasra Girdawari.
Learned counsel has placed reliance on Dharam Singh v. Kirpal Singh and others A I II 1923 Lah. 31, Thakur Singh v. Karam Singh and another A I It 1925 Lah. 165; Muhammad Sarwar v. F'eroz Khan & another PLD 1951 Lah. 169; Niaz Ahmad and others v. Mian Abdul Rehman and others PLD 1961 B J 1; Raja Mania Bakhsh v. Qadir Dad PLD 1953 B J 52 to contend that the transfer of possession contemplated in Article 10 of Limitation Act and section 30 of the Punjab Pre-emption Act, 1913, clearly meant transfer of physical possession in a manner so as to serve a notice to all concerned denoting change on site. In the circumstances of the case under consideration neither transfer of possession had taken place nor sale had been effected prior to the attestation of mutation.
4. Malik Muhammad Jafar, learned counsel for the respondent-vendee relied on Exh.D.W.1/1, a petition made by Ajmal Khan, also signed by Muhammad son of Ahmad Hassan stating that land measuring 7 Kanals 5 Marlas part of Khata No.104/2305 to 2311 has been sold by him to Muhammad son of Kala for Rs.1,900 and possession had been delivered under the sale. On the reverse of the petition acknowledging the sale and transfer of possession, Consolidation Officer, recorded, the statements of both the parties, who reiterated the contents of the above-stated petition Exh.D.W.1/1.
The petition Exh.D.W.1/1 was then returned to the vendee by the Consolidation Officer. Learned counsel relying upon the contents of the petition, statements of the vendor, and the vendee Exh.D.W.1/2, Exh.D.W.1/3 and the entries of the extract from Khasra Girdawari submitted, that limitation ran from 15-6-1958 and not the date of attestation of mutation, reason being that both sale and transfer of physical possession were in all respects complete on 15-6-1958. Sale mutation was stated to be not a new and independent transaction. Learned counsel submitted that issue in regard to limitation was rightly framed and so was its onus correctly placed upon the plaintiff/pre - emptor. It is for the plaintiff to prove that the cause presented in Court was brought within the period of limitation prescribed for it by law. The defendants' denial would not be sufficient to shift the onus on to the plaintiff.
5. Surprisingly, neither, the plaintiff/pre-emptor nor the defendant-vendee tendered in evidence copy of the sale mutation, part sarkar or part patwar. Mutation, if tendered in evidence, could have thrown light on the question as to whether it was based on Exh.D.W.1/1 and statements D.W.1/2, 3 or that it was a fresh transaction. P.W.1 Muhammad Ishaq, village Patwari, who prepared quinquennial averages stated, in cross-examination, that mutation was entered and attested on the basis of statements recorded on 15-6-1958. Sultan Khan, a retired Consolidation Officer, deposed that an application Exh.D.W.1/1 was moved before him by Ajmal Khan on 15-6-1958 and he recorded their statements, the same day and then handed over the papers to the custody of the vendee. D.W.2 Sultan Khan supported the fact of making of the above-noted petition and the statements of the parties. D.W.3 Muhammad Ishaq Patwari again appeared and deposed that the previous numbers of the land-in-dispute were 2624, 6781, 6810, 6782, 6778, 6784, 4095, 237/1, 5157, 6780, 6667, 6768, 6769/2, 8906, 3647, 2571, 237/2 and 5200 comprised in Khata No.104/2305 to 2311, Khautunis.
Khasras Nos. 2571 and 237/2 were stated to be in possession of Ajmal Khan vendor. Vendee did not enter the witness-box himself but felt contended to appear through an attorney whose presence at the time of sale is not proved by the evidence on record. Exh.P.1 to Exh.P.3 are copies of the pedigree tables and are not relevant for decision of issue No.4. In Exh.D.1, Khasra Girdawari, the land in dispute is recorded in the ownership of Ajmal Khan and column No.4 which relates to cultivation, is shown vacant. Possession of Muhammad Khan son of Kala vendee is recorded for the first time in Kharif 1963 and that too as non-occupancy tenant paying half Batai with Tanda and Bhoosa. This entry does not support the possession of Muhammad son of Kala as owner/purchaser of the land in dispute. Had it been so, the possession would have been described differently. Exh.D.2, copy of Khautuni, only shows, that the land in the ownership of Ajmal, and in column No.8, reference to Mutation No.338 is made in red ink. Exh.D.3 is not relevant as it does not pertain to the suit-land.
Exh.P.4 which was tendered in rebuttal, and Exh.D.2, are identical except that in Exh.D.2 previous Khasra numbers of the land comprised in 1934 and 1936 are also mentioned. One thing therefrom is absolutely clear that the land bearing present Khasras Nos. 1934 and 1936 does not tally with Khasra numbers given in Exh.D.W.1/1. Therefore, it cannot be said with certainty, on present record, that the land described in Khasra in Exh.D.W.1/1 is the same land which has been conveyed now through Mutation No.338, dated 5-4-1964. There is no convincing evidence to show that physical possession was transferred and taken by the vendee under the sale on a date prior to the year preceding the institution of the present suit. The case is governed, as regards period of limitation, by section 30 of the Punjab Pre-emption Act. It reads:- "30-Limitation.--In any case not provided for by Article 10 of the Second Schedule of the Limitation Act, 1908, the period of limitation in a suit to enforce a right of pre-emption 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, 1897, or from the date of which the vendee takes under the sale physical possession of any part of such land or property, whichever date shall be the earlier;
(2) in the case of foreclosure of the right to redeem village immovable property or urban immovable property, from the date on which the title of the mortgagee to the property becomes absolute;
(3) in the case of a sale of urban immovable property; from the date on which the vendee takes under the sale physical possession of any part of the property."
' ' The phrase "physical possession" employed in Article 10 of the Limitation Act or for that matter in section 30 of the Punjab Pre-emption Act has been apparently used in the context of a giving notice to all persons concerned about the delivery of possession i.e. former owner had parted with the property in favour of the new owner. Any admission, therefore, made by the vendor in making a report to the village Patwari for entry of a mutation or any statement before Revenue Officer that possession had been surrendered may be of some use between the parties to the sale but cannot be extended to bind a stranger pre-emptor. In a pre-emption suit, to successfully raise a plea of the suit, being barred B by limitation, it has got to be proved by strong affirmative evidence and established beyond any shadow of doubt that actual physical possession has been delivered on site and taken over by the new owner under the sale. This actual delivery of possession on site serves as a notice to all would-be pre-emptors to enable them to assert their rights of prior purchase if they are so minded. In the case under consideration, as pointed out above, there was no such evidence except the joint statement of the parties before the Consolidation Officer. In Murid Hussain and another v. Muhammad Shafi and another 1980 CLC 1753, Mr.Justice Muhammad Ilyas of the Lahore High Court analysing the provisions of Article 10 of the Limitation Act, 1908 and section 30 of the Punjab Pre-emption Act, observed:- "A bare reading of section 30 of the Punjab Pre-emption Act, 1913 together with Article 10 of the Limitation Act, 1908 would show that it was intended by the legislature that in the case of a suit for pre-emption, the period of limitation should run from the taking place of such development touching the sale of land or other property as would give a clear notice thereof to the prospective pre-emptors so that if any of them wants to pre-empt the sale, he may do so within one year of becoming aware of the sale. These developments, as enumerated in section 30 read with Article 10 are three, namely Registration of the sale-deed incorporating the sale, if it is made in writing; attestation of mutation of sale, if the sale is oral; and taking of physical possession under the sale. It is too well-known that the registration of a document is notice to the whole world. Similarly, the attestation of mutation is widely publicised inasmuch as it is attested in the common assembly, Likewise, the delivery of physical possession to the vendor under the sale, as envisaged by the framers of law, is the one which is publicly demonstrated so that it serves as "a clear notice to the whole world that he had purchased the land". The physical possession of the landed property cannot pass from one person to another unless some practical and visible steps are taken to effect the change of possession. The steps so taken should, therefore, be spelt out by a vendee, by producing adequate and convincing evidence before he can succeed in defeating the pre-emptor on the ground that the latter had not pre-empted the sale within one year of his having obtained physical possession under the sale. He cannot get away just on the score of the report of the Patwari regarding the delivery when such report is based on the statements of one or more parties to the sale and not on his Patwari's personal knowledge or local inspection. To hold otherwise, would amount to permitting a vendee to defeat pre-emptive rights by having such a report recorded by the Patwari and then delaying the attestation of mutation for one year thereafter, so that the period of limitation should expire by the time the mutation is sanctioned. Such tactics obviously, offend against the letter and spirit of the provisions of section 30 of the Pre-emption Act, read with Article 10 of the Limitation Act, and cannot, therefore, be countenanced.
' The report of the Patwari, reproducing the statements of the parties in regard to delivery of possession cannot constitute a safe and valid basis for a finding to the effect that the change of possession had, in fact, taken place as indicated in their statements."
' In the precedent case, some of the cases relied upon by the learned counsel for the appellants were considered and taken notice of. It is correct that the Revenue estate was under consolidation.
It is also correct that some application was moved on which statements were recorded admitting the sale or transfer of possession but there was no evidence to show that the land conveyed by sale mutation subjected to a pre-emption claim was the same which was mentioned in Exh.D.W.1/1.
Further, there was no supporting convincing evidence to show the transfer of physical possession of the land on site which could serve as a notice of change to the would-be pre-emptors. The entries in the revenue record which may serve as evidence to show transfer of possession do not support the vendee. The suit was within limitation from the date of mutation. It was for the vendee- defendant, therefore, to have brought sufficiently strong and convincing evidence inspiring confidence to demonstrate that the possession was transferred under the sale on a date exceeding one year from the date the pre-emption suit was instituted. It was also open to question as to how petition Exh.D.W.1/1 was allowed to remain with Muhammad son of Kala the vendee of the suit land. It should have formed part of consolidation records. There is no registered deed of sale.
Be that as it may, there is no evidence as stated to show that actual possession was transferred.
Learned District Judge, therefore, acted erroneously in reversing a finding well-supported on facts and reasons. Appeal is allowed, judgment and decree dated 10-11-1966 passed on appeal by learned District Judge, Campbell Sur is set aside and that of the trial Court dated 20-4-1966 is maintained. Plaintiff's suit consequently stands decreed. Plaintiff/ appellant, however, is directed to deposit a sum of Rs.1,900 minus Zare-panjum by or before 29-11-1984. Parties, in the circumstances of the case, are directed to bear their own costs.