This is a Regular second appeal against the order of a learned Additional District Judge, Jhang dated 23-9-1969 whereby he accepted the appeal of pre--emptor/plaintiff after reversing the judgment and decree of the trial Court.
2. Brief facts are that sale of 138 kanals 7 marlas in village Qutab, Tehsil and District Jhang took place on 12-2-1967 through an oral transaction and a report to the Revenue Patwari was made on the same day according to the learned counsel for the appellant. The mutation in respect of oral sale was sanctioned on 3-5-1967. In respect of this sale, two pre-emption suits were filed. One was filed by the present respondent Raja and the other by Allah Ditta and two others who are not party to these proceedings. Both these suits were dismissed by the learned trial Court by judgment and decree dated 3-12-1968.
3. Out of the two plaintiffs, Raja respondent in this case filed an appeal before the learned Additional District Judge. This appeal was accepted by the learned Additional District Judge, Jhang by judgment and decree dated 23-9--1969. The learned Additional District Judge accepted the appeal and reversed the finding of the trial Court on issue No. 8 concerning limitation on the consideration that the trial Court had not drawn correct inferences from the statements of defendant's witnesses. The suit was decreed because this was the only issue decided against the appellants-pre-emptors by the trial Court.
4. Learned counsel appearing in support of this appeal has sought to argue that in deciding the question as to when the plaintiff had taken over the physical possession under the sale, the Court had to take into consideration the entry of the mutation as well as the evidence of DWs. Regarding taking over of the physical possession. Learned counsel elaborates that in the absence of the plaintiff discharging his onus by establishing the date of the physical possession of the property in dispute in pursuance of the transaction, the learned Additional District Judge ought to have accepted in toto the evidence of the appellants/vendees' witnesses which went unrebutted. The view of the appellate Court that the limitation should start from the date of attestation of mutation i.e. 3-5-1976 has been criticised as being unsustainable on the plea that the law requires the limitation to commence from the date when the physical possession is taken by the vendee under the sale and not from the date of attestation of mutation. According to the learned counsel, if correct date had been kept in mind, the possession having been established to have been taken on 12-2-1967, the suit could have been filed upto 11-2-1967. There was no evidence to the contrary, therefore, the suit was clearly barred by time as it was filed on 2-5-1968 taking the starting point of limitation as 3-5-1967 which is the date of attestation of mutation.
5. The question of fact as to the actual date of physical possession taken by the vendees under the sale has been decided by the first Appellate Court on the view that no conclusive evidence has been led by the defendants-vendees in regard to the transfer of possession. In second appeal, the scope for interference with a finding of fact when it proceeds on weight to be attached to a piece of evidence and believing and disbelieving of witnesses is rare except when a case is made out of misdirection, misreading or misconstruction. Since it is a case of judgments of variance, I have myself gone through the evidence of the vendees.
6. In so far as the report of the Patwari regarding the delivery of possession is concerned, the view of this Court has been that it cannot constitute a safe and valid basis for a finding for the change of possession having taken place especially when such a report is based on the statement of one of the parties and is not an entry based on the personal knowledge or local inspection. The authorities for this view can be found In re: Waris A.I and 2 others v. Ghulam Rasool and another (1979 CLC 533) and In re: Murid Hussain and another v. Muhammad Shafi and another (1980 CLC 1753). In the latter case, a view was taken that where the vendees had failed to establish that they took physical possession of land under the sale before the mutation relating to the said sale was attested, a suit filed within one year of the sanction of the mutation was within time. The Peshawer High Court's view has been that where evidence of physical possession of the vendee prior to attestation of mutation is clearly established limitation would run from the date of the physical possession. See the case of Hussain Baksh Khan v. Hussain Buksh and others (PLD 1961 Peshawer 33). It follows that where such delivery of physical possession is not so established, it would run from the date of attestation of mutation.
7. Now, in so far as the oral evidence led in this case is concerned, the statements of D.W.1 Wali Muhammad son of A.I Bakhsh, D.W. 2 Nasim Shah son of Muhammad Nawaz Shah and D.W.3 Raja son of Sajawal would show that they have given a very casual type of evidence. The two first named have merely mentioned change of possession but have failed to describe what type of possession and there are no words to be found that there was a change of physical possession under the sale. In so far as D.W. 3 Raja is concerned, he has stated that the possession was taken through qalba-rani. Appellant Allah Yar as D.W. 4 on the other hand, in his statement had not stated that he had taken physical possession through qalba-rani. According to him, the land was already in his possession. It is therefore difficult to appreciate how the appellants can get away from their own deposition before the trial Court. Indeed, when appellants were already in possession then there was cogent evidence required to show as to when they had taken physical possession under the sale. The principle enunciated by a Division Bench of this Court in re: Gullan v.
Muhammad Ramzan (PLD 1962 B.J. 33) therefore would seem to govern the facts of this case even if the statement of D.W. 4 to the extent it goes is believed. The statement of D.W.3 Raja has been disbelieved by the learned Additional District Judge on the view that he resided about 17/18 miles from the village where the land was situated and he happened to be a mere chance witness. I therefore can find no valid fault with the view of the learned Additional District Judge that the evidence of the vendees did not inspire confidence and was not worthy of reliance.
8. I have therefore not felt persuaded to reverse the judgment and decree of the first appellate Court and would accordingly dismiss the appeal. In the circumstances of the case, there will be no order as to costs.
M.Y.H./A-730/L