This civil revision arises out of a suit for possession through pre-emption filed by respondents seeking to pre-empt the suit land measuring 4 Kanals comprised in Killa No.10/2 Sqaure No.105 situate in village Laluwala, Tehsil and District Sargodha. This suit was dismissed by the trial Court but was decreed in appeal, filed by the respondents, by an Additional District Judge, Sargodha.
2. The suit had been filed by the respondent. No.1 on 22nd of June, 1981 in which the superior right of pre-emption was claimed on the ground that he was collateral of the vendor. According to the case of the respondents-plaintiffs, the sale had taken place through a decree of the Civil Court dated 9th of April 1980 for a sum of Rs. 8,000, though in the decree the consideration amount was mentioned as Rs. 10,000. The factum of sale through decree was admitted. It was however pleaded that the petitioner was in possession of the land since last 5/6 years as tenant and as such their right of pre-emption was much superior to that of the respondents. The petitioner further averred that the suit was not within time; the respondents were estopped by their own conduct by filing the suit and further that the land in fact had been purchased by them for Rs. 10,000. On the pleadings of the parties the learned trial Court framed 8 issues out of which the relevant issues are issues Nos, 2 and 3 relating to limitation, estoppel and superior right. The parties led their evidence on these issues. The respondent/plaintiff appeared as PW1 in support of his case. He also produced documentary evidence which inter alia consists of register Haqdaran for the years 1977-78 EX. P1, Khasra Girdawari Ex. P4, decree and the order of the Civil Court at Sargodha dated 9th of April, 1980 making the award delivered by Zulfiqar son of Wali Muhammad, Arbitrator, rule of the Court, which evidenced the sale in favour of the petitioners. In rebuttal petitioners examined 5 witnesses including petitioner No.1 Abdullah. They also produced documents Ex. D-2 to Ex. D-9.
3. The learned trial Court dismissed the suit on 9th of April, 1986. It was held under issue No.1 that according to the award, the petitioners were to be in possession of the land prior to 2nd of April 1980 when the sale took place and as such the suit which was filed on 22nd of June 1981 was barred by time. The trial Court also held that the respondents were estopped from filing of the suit in view of their conduct. Issue No. 3 was decided in favour of the petitioners and it was held that the petitioners were tenants in possession at the time of sale in their favour and they had as such superior right of pre-emption. The learned trial Court in this behalf relied upon the statement of Ahma son of Dari who had been recorded as tenant in the Khasra Girdawari.
Aggrieved by this decision, the respondent No.1 filed an appeal which succeeded before the Additional District Judge Sargodha. Tire learned Additional District Judge reversed the findings of the trial Court on issues Nos. 1, 2 and 3 and decreed the suit riled by the respondent No.1. The question of limitation was decided in favour of the respondent on the finding that according to the case of the petitioners themselves they were already in possession of the land at the time of sale and as such there could be no physical delivery of possession. It was held that in such circumstances the suit was governed by Article 120 of the Limitation Act which provides six years period for filing the suit. The learned Additional District Judge also held that the respondent No.1 was not estopped from filing the suit. Under issue No. 2, the learned Additional District Judge on the basis of entries in Khasra Girdawari came to the conclusion that it was Ahma son of Dari who was in possession as a tenant and not the petitioners. The learned Additional District Judge also took notice of the fact that the petitioners had applied for the correction of the Khasra Girdawari but their application was rejected both by the Collector and also Commissioner vide orders dated 4- 10-1982 and 20-12-1982, copies Ex. D8 and D9 respectively. The learned lower appellate Court was not prepared to rely upon the statement of Ahma son of Dari alone. This judgment and decree of the learned Additional District Judge has been assailed by the petitioners in this civil revision.
4. The first contention raised by the learned counsel for the petitioners in support of this petition is that the Additional District Judge, has misread the order of the Collector Ex. D8 and the Commissioner Ex. D9 and erred in observing that since the application filed by the petitioners for correction of the entries in the Khasra Girdawari has been dismissed, the petitioners could not be held to be tenants. This grievance of the learned counsel appears to be well---founded. According to the orders of the Commissioner Ex. D9 the factual controversy between the parties regarding correctness of entries in Khasra Girdawari was not decided in view of the pendency of the suit of pre-emption. The Commissioner instead observed that since the matter was sub judice before the Civil Court, it was appropriate that the same be decided by that Court. The next objection of the learned counsel for the petitioners was that while considering the evidence on the record the learned Additional District Judge has only noticed the statement of Ahma son of Dari but has completely omitted to consider the testimonies of the other witnesses produced by the petitioners especially Jalla DW 2. From a perusal of the judgment of the Additional District Judge, ii becomes clear that the grievance of the learned counsel is also correct. The learned Additional District Judge has not considered the effect of the statements made by witnesses produced by the petitioners except DW 1, Ahma.
5. In view of the above position as also because the judgments of two Courts below were at variance I have myself examined the evidence on record with the assistance of the learned counsel for the parties and have come to the conclusion that the findings recorded by the learned Additional District Judge, arc correct and not liable to be interfered with by this Court.
6. According to Khasra Girdawari Ex. D5 Ahma son of Dari has been recorded as tenant in respect of the land in dispute till Kharif 1980. This entry was made on 16th of October, 1980. The learned counsel, has however challenged the correctness of the entry in this Khasra Girdawari and submitted that the petitioners were in possession of the land since 5/6 years before the sale in their favour which was made in April 1980 and it was for this reason that the petitioners had applied for the circumstances of the entry in the Khasra Girdwari. It is evident from an order of the Collector Ex.
D8 that the application for correction of the Khasra Girdawari was made after the present suit had been filed by the respondent. No objection appears to have been taken prior thereto in this behalf by the petitioners. Furthermore, though the petitioners claim to be the tenants in respect of the land since 1974-75, the application made by them for correction was confined only to the entries for Kharif 1979 to Kharif 1980. Another important factor to be noticed in this behalf is that in the Register Haqdaran for the years 1977-78 copy of which has been produced as Ex. P1, it is Ahma son of Dari who was in possession as tenant of the suit land. It needs no gainsaying that the presumption of truth and correctness attaches to the Register Haqdaran under section 52 of the Punjab Land Revenue Act, 1967. Although the witnesses I produced by the petitioners, have asserted that Ahma who was recorded as a tenant in the Khasra Girdawari as also the Register Haqdaran, hid ceased to be a tenant since last 7/8 years, I am not in a position to give preference to the testimonies in face of the documentary evidence on the record as discussed earlier. If indeed the petitioners were in possession for the last about 5/6 year, there was no reason as to why they were not recorded in the Revenue record and also as to why no such objection was raised before the suit for pre-emption was filed by the respondents. To me it appears, that after the suit had been filed, an attempt was made by this petitioner to have their possession recorded so as to non-suit the respondents. For all these reasons, I am of the view that the petitioners had failed to establish any tenancy in their favour and, therefore, the right of pre-emption of the respondents was superior to them.
7. The only other contention of the learned counsel for the petitioners was that the suit of the respondents was not within time. It was pointed out by the learned counsel that in the award Ex. D2 dated 2nd of April 1980 it was recited that the petitioners had purchased the suit land and were already in possession as owners. According to him, the limitation for filing the suit would run from the date either of the award i.e. 2nd of April 1980 or from 9th of April 1980 on which date the award was made rule of the Court and as such the suit which was filed on 22nd of June, 1981 was barred by time. The question that arises for consideration is which of the provisions governing limitation in a pre-emption suit is applicable in the present case. According to the learned counsel for the petitioners Article 10 of the Limitation Act applies to the instant case while the learned counsel for the respondents contends that the relevant article applicable was Article 120. Article 10 applies either when there is a registered instrument of sale or when the vendee takes possession under the sale of the land purchased by him. Admittedly, there is no registered deed of sale in the present case. According to the case of the petitioners, they were already in possession of the land as tenants before the sale in their favour. It is well settled law, that if the property sold does not admit of delivery of physical possession due to the fact that vendee is already in possession before the sale, Article 10 of the Limitation Act has no applicability. It is only where property admits of physical possession and such possession changes that Article 120 becomes applicable. Reference in this connection can be made to Mehr Bakhsh and another v. Maula Dad and another PLD 1951 Lah. 113 and Gyan Singh v. Gyan Singh etc. AIR 1923 Lah. 654. Similarly section 30 of the Punjab Pre-emption Act would not be applicable in the instant case. Since there was no mutation of sale in favour of the petitioners nor physical possession was delivered under the sale, the only Article therefore, which applies to the present case is Article 120 of the Limitation Act under which the period of limitation is prescribed six years. Even otherwise, there is no evidence on record to show as to when and on what date physical possession was delivered to the petitioners under the sale. Mere recital in the award given by Arbitrator in proceedings between the petitioners and their vendor, to which the pre-emptor was not a party, would not suffice. The petitioners should have led positive evidence to prove that they indeed were placed in possession and also establish the date when the possession changed hands. This they failed to do. No possible exception, can, therefore, be taken to the finding of the learned Additional District Judge on issue No. 3. No other point has been urged by the learned counsel.
For the fore going reasons this revision fails and is hereby dismissed leaving the parties to bear their own costs.