' It is vendees Regular Second Appeal in a pre-emption suit. Three relevant issues for this appeal are:
(1) "Whether the plaintiff is estopped by his own conduct from filing the present suit?"
(2) "Whether the suit is collusive and for the benefit of one of the vendors?"
(3) "Whether the suit is barred by time?"
' The learned Senior Civil Judge, Campbellpur dealt with the first two issues together, found them against the plaintiff; on the third issue he found the suit within limitation. In view of the decision on the former issues about estoppel and collusiveness against the plaintiff, the suit was dismissed.
This is vide judgment and decree dated 25-3-1976. Plaintiff went up in appeal. The vendees filed cross-objection against the finding that the suit was within limitation. The first appellate Court, learned District Judge, Campbellpur upset the finding on the first two issues, upheld the finding on the last, accepted the appeal and dismissed the cross-objection vide judgment and decree dated 18-7-1977.
2. Learned counsel for the vendee-appellants has submitted that the learned first appellate Court erred in law in upsetting the findings of fact on estoppel and collusiveness arrived at by the learned trial Court on the basis of documentary evidence on record, on conjecture. Secondly, that the two Courts below have erred in holding the suit to be within limitation--ignoring the evidence on the record.
3. Learned counsel for the pre-emptor-respondent has submitted that there was no evidence of collusion and the fact that a sum of Rs.10,000 was deposited by the respondent in the Bank was in connection with the business conducted with one of the vendors, namely, Toti Khan. Further, he had acted as an agent of his father and, therefore, his right to pre-empt was not affected. Reliance was placed on Mustaqim v. Sher Bahadur PLD 1962 Pesh.
14. Secondly, the learned counsel contended that the sale was of a share in a joint Khata under mortgage. Therefore, it was not susceptible of physical possession. Consequently, the limitation would start from the date of attestation of mutation. He relied on Mrs.Keays Byrine v. M.Obaidullah Khan PLD 1959 Lah. 146 and Raja Maula Makhsh v. Qadir Dad PLD 1953 B J 52. He further submitted that anticipatory possession cannot be considered to be under the sale. He relied on Muhammad Ishaq v. Sarhad Development Authority and others 1984 CLC 126. He concluded that concurrent finding on the question of limitation is not interferable in second appeal.
4. It is true that a finding of fact is not interferable in second appeal, more so concurrent, if based on evidence and could be reasonably A or legally arrived at.
5. In the present case, the learned trial Court dealt with the issues of estoppel and collusiveness as under: "These issues have arisen on account of the allegation made by the defendants in para.6 of their written statement. It is alleged therein that the plaintiff had himself received a part of the consideration amount alongwith one of the vendors namely Toti Khan and had deposited the same in the Habib Bank Hazro Branch, and that the instant suit has been lodged fictitiously and collusively for 'the benefit of the said Toti Khan. In response to such allegations, the plaintiff denied the said facts in his replication. He advanced no explanation about the events alleged by the defendants in their written statement. However, to prove the allegations, the plaintiff produced photostat copies of some bank documents. The same are collectively marked as Exh.D.1. Its correctness has also been admitted by the learned counsel for the plaintiff vide joint statement recorded on 5-3-1976. In view of such admission made by the plaintiff, it has become clear that the plaintiff had opened a joint account on 20-4-1973 in the Habib Bank, Hazro, alongwith Toti Khan, one of the vendors. Such facts were specifically alleged by the defendants in their written statement at an earliest opportunity, but the plaintiff could not admit the same and rather took courage to deny its truth in his replication. However, when confronted with the documentary evidence, the plaintiff admitted the truth. His such conduct and attitude refers to his ill designs. He never came forward with his real case and attested on 20-4-1973 Exh .D.4. On the same day, the plaintiff deposited Rs.12,000 in the Habib Bank, Hazro Branch jointly with Toti Khan one of the vendors. The date on which such amount was deposited is very important. On the same day, the disputed transaction of sale was attested and consideration amount was paid. On account of such facts, the defendants alleged that the plaintiff had, in fact, received a part of the consideration amount and had deposited the same in the local bank. If plaintiff could have admitted the fact of deposit and explained the amount at an earliest opportunity, there was no reason to connect such deposit with the amount of sale price paid for the suit land. Mubarik Shah, one of the defendants, appeared as D.W.1. He has fully explained the situation. He stated that the disputed transaction was settled through the plaintiff and Toti Khan that the consideration amount was received by both of them and Nadar Khan that the amount so received by the vendors was got deposited in the bank by the plaintiff and that he had identified the parties before the bank Authority. He further explained that the amount of Rs.12,000 deposited by the plaintiff was the same which was paid by him to the vendors. It is admitted that Toti Khan vendor is brother-in-law and real cousin of the plaintiff and that Nawab vendor is real father of the plaintiff. In view of such facts, it is quite natural and logical to suppose and presume that the plaintiff had been acting as a party to the transaction of sale and that .the plaintiff had himself benefited under the transaction. To rebut the evidence produced by the defendants, plaintiff produced no worthwhile evidence. He himself appeared as P.W.2 and simply denied the facts. He never produced Toti Khan, the vendor, to explain the deposit made by him in the local branch. [le himself explained that such amount related to his some other business.
In view of the facts stated above I find that the plaintiff the disputed transaction of sale, acted as an active agent and had benefited himself. As a result of it, I hold that the instant suit is collusive and the plaintiff is estopped to file the present suit. Accordingly, both the issues are decided in favour of the defendants and against the plaintiff."
' This finding was reversed by the appellate Court with these remarks: "Arguments heard. Learned counsel for the appellant has assailed findings of the Court below on issues 3 and 4 only. In order to prove these issues, the respondent produced some documents relating to the opening of a bank account by the appellant and Toti Khan one of the vendors on the day the impugned mutation was sanctioned. Mubarak Shah respondent himself appeared as'
D.W.1. He deposed that the sale price was given by him to the , appellant, Toti Khan and Nadir Khan vendors in equal shares, i.e.Rs.i0,000 each and at that time Toti Khan and the appellant had deposited Rs.12,000 in the bank after opening a new account. He further stated that he had identified them before the Manager of the Bank. On the contrary, the appellant as P.W.1 stated that he had not received any amount of the sale price but he and Toti Khan one of the vendors had joint business and, therefore, they had opened the account with a sum of Rs.12,000. Had the appellant received Rs.10,000 like Toti Khan from the respondents, they would have deposited Rs.20,000 and not Rs.12,000 in the bank. So, the mere opening of an account with the bank with a sum of Rs.12,000 does not prove beyond doubt that the appellant had waived his right of pre-emption or that his suit is collusive or he is estopped from bringing the same. In fact the respondents should have produced cogent and convincing evidence to prove that at the time of bargain the appellant was not willing to purchase the land and that he had specifically waived his right of pre-emption. It was not done so and hence by no stretch of imagination it can be said that the respondents had proved either issue."
6. The reasoning of the learned appellate Court clearly shows that it is based on conjecture. The contention of the learned counsel for the respondent that a part of the consideration received by the respondent was in connection with the joint business with one of the vendors and on behalf of the father, is a tenuous explanation of what, he had done, for which the proof was the opening of the Bank account mentioned in detail by the learned trial Court. Proof "beyond doubt" was not called for in civil suit. Therefore, the reversal of the finding of the learned trial Court based on legitimate and logical inferences from the documentary evidence of Bank account, for conjectural reasons, cannot be sustained and is set aside.
7. As regards the finding on the issue of limitation, the defendant-vendees had pleaded that they had taken possession in Rabi, 1971. One of the vendees had appeared in Court and said so. He had produced Khasra Girdawaris as Exh.D.2 and Roznamcha Waqiati Exh.D.3 to show that possession was taken on 11-4-1973. The learned trial Court referred to the statement of the aforesaid vendee Mubarak Shah D.W.1 but observed that "In support of his such version, he produced no independent evidence". The documentary evidence aforementioned was altogether omitted from consideration.
Because of land being under mortgage, it was observed that neither the vendors nor the vendee could have had any right to enter upon the land without redemption of it." It was omitted from consideration that only portion of joint Khata was under mortgage. Specific share in possession not under mortgage could be sold. The learned first appellate Court omitted to consider the aforementioned documentary evidence while upholding the finding. It is obvious and patent that a finding of fact even if concurrent is not immune from examination in second appeal if it has been arrived at C by omitting to consider the relevant evidence, especially if documentary evidence has been ignored altogether as if it did not exist. The vendee had deposed that he had taken possession in Rabi, 1973. He was not cross-examined on the point. It would be deemed to have been admitted. The documentary evidence Roznamcha Waqiati showed that possession had been taken on 11-4-1973. Therefore, for non-taking into account the documentary evidence and unquestioned fact of crucial importance, the finding cannot be said to be sacrosanct. Therefore, in view of the documentary evidence of taking possession on 11-4-1973, the suit filed on 20-4-1974, was clearly out of time. The contention of the learned counsel for the respondent that the sale of a share of the joint Khata is not susceptible to physical possession and, therefore, the time must run from the date of attestation of mutation is not quite correct. A co-sharer in possession of specific portion of land can sell his share to the extent of his share. Learned counsel for the appellants rightly referred to Sukh Dev v. Parsi and others AIR 1940 Lah.
473. A perusal of the contents of Khasra Girdawari Exh.D.2 and Mutation Exh.D.4 would show that the vendors were in possession of the major part of the land of the joint Khata and had sold the land to the extent of their share. Therefore, the contention of the learned counsel for the respondent is without any basis on the record. Consequently, the concurrent finding on the question of limitation without reference to the documentary evidence and unquestioned deposition on the point is set aside. The suit was out of time from the date of taking of possession.
8. For the reasons given above, the appeal of the vendees is allowed.
Judgments and decrees of the Courts below are set aside. The appellants shall be entitled to their'costs throughout.