' R. S. As. Nos. 488 of 1972 and 489 of 1972 contain the same facts and the matter of fact and law to be discussed in both these appeals is the same, so they are being disposed of by means of this single judgment.
2. In R. S. A. No, 488 of 1972, Mst. Almas, a minor daughter of Muhammad Khan had sold 409 Kanals of land situate in village Pakka Sandila, Tehsil and District Muzaffargarh to Wahid Bakhsh and others by means of Mutation No, 1126 sanctioned on 22-2-1966 for Rs, 20,000. In R. S. A. No, 489 of 1972, the same vendor sold 521 Kanals and 18 Marlas of land in the same village to the appellants for Rs, 27,000 by means of Mutation No, 1124 sanctioned on 22-2-1966. The respondents sought to pre-empt the sale of the land in dispute on the basis of their preferential right of pre-emption on payment of lesser value which according to them was actually paid to the vendor. The appellants contested the suit of the pre-emptors and a number of issues were framed. The pre-emptors succeeded in both the suits and the appeals filed by the present appottants before the learned District Judge were also unsuccessful. In these regular second appeals, only Issue No, 3 has been mooted which is as follows :- ' Whether the suit is time-barred ? 0. P. D.
2. The learned lower Courts have found that the appellants could not prove their possession on the land in dispute before the attestation of the mutation and, therefore, the suit was not hit by limitation. It may be noted that Mutations Nos.
1.126 and 1124 were attested on 22-2-1966 and the suit was instituted on 17-1-1967. The stand of the appellants is that they got the possession of the land in dispute . Under sale somewhere towards the end of the year 1964 and in this manner under section 30 of the Punjab Pre-emption Act, 1913, the suit of the respondents was barred by time. The facts of this case, which led to the attestation of Mutations Nos. 1124 and 1126 need to be reproduced. Mst. Minas was the minor daughter of Muhammad Khan Muhammad Khan sold her property by means of a written instrument which was not registered. He got entered Mutations Nos. 1091, 1092 and 1093 on 12-11-1964 on the basis of the report of the Patwari in the Daily Diary, dated 27-10-1964 Exh. D.
1. The vendor was minor and the Assistant Collector is stated to have sought the advice of the Collector which was not given and finally in the absence of the parties all the mutations were cancelled on 22-5-1965. The appellants then sought the assistance of the civil Court for a declaration to the effect that those mutations were wrongly cancelled and a consent decree was obtained on 22-12-1965. On the basis of the said consent decree, Mutations Nos. 1124 and 1126 were sanctioned on 22-2-1966.
3. The point of limitation was argued before the learned lower Courts on two points. Firstly, the deficiency of the court-fee was made up after the period of limitation. In view of the recent authorities that limitation is not to be taken into consideration when an extension under section 149, C. P. C. Is granted, the learned counsel for the appellants has rightly ignored the said point.
Secondly, his cardinal stand is that the appellants had paid the entire price in the year 1964 and had taken possession of the land in dispute in the same year and, therefore, the respondents should have been non-suited on the point of limitation. The learned counsel for the appellants does not seem to have viewed the matter in the right perspective because firstly the vendor was a minor and she was not in a position to sell her land through her father who had not sought the permission of the appropriate forum for selling the said property. Mutations Nos. 1091, 1092 and 1093 were cancelled and no mutation held the field till the subsequent mutations were attested.
Secondly a consent decree was obtained by the appellants presumably in collaboration with the father of the vendor on 22-12-1965 and on the basis of the said decree, Mutations Nos. 1124 and 1126 were sanctioned on 22-2-1966.
4. The payment of sale price is not disputed by the learned counsel for the respondents. He has simply contended that by means of Mutation No, 1126, 8/48655th share of the entire Khata was sold and similarly by means of Mutation No, 1124, 10438/48655th share was sold and the said share was incapable of physical possession. Thirdly, it has been represented that the waste land affected by river action had been sold to the appellants which was not capable of physical possession.
Admittedly, the fractional share of the land in dispute was sold which) was not capable of physical possession unless it was partitioned. It was a waste land at the time of the sale and we have to examine the evidence of the parties on this point. Malik Faiz Bakhsh, D. W.
1. Deposed that the possession of the land in dispute was delivered at the time of the sale.
Muhammad Khan Khakwani, the father of the vendor, appeared as D. W. 5 and corroborated the statement that the possession was delivered at the time of the sale in the year 1964. But in his cross-examination. He has explained that the appellants got the possession of this ,land through his Munshi. Mushtaq Ahmad, P. W. 4, who was a Munshi of Muhammad Khan, has, in clear and forthright terms, stated that he delivered the possession of this property to the appellants in the year 1966. The learned counsel for the appellants has given prominence to copy of Khas a Girdawari Exh. P. 4 which is indicative of the fact that in Rabi, 1966, Wahid Bakhsh had taken possesssion of a part of this property. But no presumption of truth is attached to this document and this document has sufficiently been negated by Munshi Mushtaq Ahmad. P. W. 4 who had actually delivered the possession of the land in dispute to the appellants. Lastly. Bot the learned lower Courts have found that the appellants could not prove their possession before the attestation of Mutations Nos.
1.124 and 1126. These concurrent findings of fact arrived at by the learned lower Courts cannot lightly be disturbed in a second appeal. I, therefore, conclude that both the learned lower Courts have rightly found Issue No, 3 regarding limitation against the appellants. I dismiss both these appeals with costs throughout.