This civil revision has arisen out of a pre-emption suit brought by one Mirza Muhammad Rauf Beg, on 24th September, 1970, against the petitioner, Khushi Muhammad, for possession of certain land through pre-emption. The petitioner purchased the land in dipute from one Nazar Beg, a first cousin of the said Mirza Muhammad Rauf Beg, by means of an oral sale followed by a mutation, attested on 28th September 1969. Death of Mirza Muhammad Rauf Beg occurred during the pendency of the suit. Thereupon, the respondents, Mst. Nazir Begum and others, were brought on the record as his legal representatives. Suit was resisted by the petitioner inter alia on the ground that it was time --barred. His plea, however, did not find favour with the Civil Judge, Chunian, District Kasur, and the suit was decreed. Petitioner went in appeal before the District Judge, Kasur, but without success. Hence this civil revision.
2. Learned counsel for the petitioner raised two pleas to demonstrate that the suit was time-barred.
One of his contentions was that the oral sale involved in this case took place on 20th September, 1969 and he also got possession of the land in dispute on the said date and, therefore, the suit instituted on 24th September 1970 was time-barred with reference to the date of delivery of possession to him. His other submission was that on 24th September, 1970, plaint in the suit was presented before the Reader of the Civil Judge, Chunian, in the absence, on leave, of the learned Civil Judge, and it was placed before the learned Civil Judge on 6th October, 1970 and as such it was time-barred even with reference to the date of attestation of mutation namely, 28th September 1969. It was maintained by him that presentation of plaint before the Reader was of no consequence vis-a-vis the question of limitation:
3. While dealing with the question of possession, learned counsel for the petitioner invited my attention to copy of Rapat ~Roznamcha Waqiati EX.D.1, the statement of Khurshid Ahmad Patwari (D.W.1) and the statement of Khushi Muhammad petitioner (D.W.4). From this evidence, according to him, it was amply clear that possession of the disputed land was delivered to the petitioner, under the sale in question, on 20th September 1969. The above evidence, however, suffers from material defects which were taken notice of by the learned lower Courts while recording a finding against the petitioner. Rapat Roznamcha Waqiati, copy D.1 is in the hand of the said Khusrshid Ahmad Patwari appearing as D.W.1, he did not say that he had personal knowledge regarding handing over of possession to the petitioner on 20th September 1.969. He simply recorded what was told to him by the parties to the same. His statement as well as Rapat Roznamcha Waqiati also stand belied by the statement of Khushi Muhammad petitioner who being the vendee, was one of the parties to the sale. It was stated by him as D.W.9 that he got possession on the date when mutation was attested. As indicated above, the mutation was sanctioned on 28th September, 1969 Thus, he contradicted his own plea that he got possession on 20th September 1969, as recorded in Repat Roznamcha Waqiati. Subsequently, on becoming conscious of the damage caused by him to his own cause, he contradicted his above statement and said that he got possession on the date when the mutation was entered. Here, again, he made departure from his plea to the effect that he obtained possession on 20th September 1969, the date recorded in the Rapat Roznamcha Waqiati, inasmuch as the mutation was not entered on the said date but on 25th September 1969. The vendor, Nazar Beg, was one of the material witnesses regarding the question of possession but he was not examined by the petitioner. In the order by which the mutation was attested, there is no mention of the date of the delivery of possession. This is also true of the report made by the Patwari while entering the mutation. Evidence led by the petitioner, therefore, does not inspire confidence. No evidence was produced by him to spell out the manner in which the petitioner occupied the disputed land. As remarked by me in Muhammad Murad v. Pir Bakhsh and another 1984 CLC 1274 (Lahore), mere report of the Patwari in respect of delivery of possession does not justify finding regarding delivery of physical possession. Strangely enough, in the written statement also it was not pleaded by the petitioner, in so many words, that he got possession of the disputed land on 20th September 1969. In view of all this, learned lower Courts were perfectly justified in holding that the petitioner had failed to establish that he had taken physical possession of the land m question on 20th September 1969. Since, in the instant case, sale was not made by a registered deed, prod of limitation will have to be reckoned .From the date of attestation of the mutation, i.e. 28th September 1969, and as such the suit having been filed on 24th September 1970 was within time.
4. Now I take up the other contention of learned counsel for the petitioner which is with regard to the presentation of plaint. The plaint was taken to the Court of Civil Judge, Chunian, on 24th September 1970, when he was on leave. Consequently, it was received by his Reader. Note recorded by the Reader was to the effect that the Presiding Officer was on leave and, therefore, plaint shall be placed before him on 6th October 1970. On this date, the learned Civil Judge ordered registration of the suit and then proceeded with the trial thereof. Relying on Order IV, rule 1 of the Code of Civil Procedure, it was urged by learned counsel for the petitioner that the Reader was not authorised to entertain the plaint and, therefore, it shall be deemed to have been presented on 6th October 1970, by which date the suit had become time-barred. According to him, the Reader could not be treated as an authorised officer of the Court within the meaning of Order IV, Rule 1.
5. On the other hand, it was urged by learned counsel for the respondents that if the Reader was authorised to entertain the plaint the suit will be deemed to have been filed on 24th September 1970, but if he was not authorised the Court will be deemed to be closed on the said date and to have re-opened on 6th October 1970 when the plaint was handled by the learned Civil Judge. In the second case, as per argument of learned counsel for the respondents, the suit will be within time by virtue of the provisions of section 4 of the Limitation Act 1980. Thus, according to him, the suit was not time-barred. He relied upon Nur Muhammad v. Ghulam and others AIR 1934 Lah. 622
(1) and Shamas-uz-Zaman and others v. Abdul Ghafoor PLD 1971 Azad J & K 16 to support his plea.
6. A perusal of the record would show that in his written statement it was I not specifically averred by the petitioner that the presentation of plaint to the Reader was not proper. Argument in this regard was, however, addressed before I the learned trial Court but it was not accepted in view of dictum in the case of Nur Muhammad cited by learned counsel for the respondents. Finding of the learned Civil Judge in this behalf was not assailed by the petitioner in his grounds of appeal nor argument in this behalf was raised at the time of hearing thereof. The appellate judgment makes no mention of it. It can, therefore, be safely concluded that the plea of improper presentation of plaint was abandoned before the learned appellate Court and as such it is no longer open to the petitioner to reagitate it before this Court, in revision.
7. On merits too the said plea is without merit. Cases of Nur Muhammad and Shamas-uz-Zaman and another are identical to the one in hand. Plaints in the cases of Nur Muhammad and Shamas- uz-Zaman and another were presented to Naib Sheriff of the Court and the Clerk of Court thereof, respectively. In both the cases plea of limitation was advanced but repelled. In the case of Shamas-uz--Zaman and others a Division Bench of Azad Jammu and Kashmir followed the view expressed by the High Court of Judicature at Lahore in the case of Nur Muhammad, and observed:- "In the case before us the plaint was presented within the prescribed period of limitation on 4-10- 1965 a day when the Presiding Officer of the Court was on leave. The plaint was received by the Clerk of the Court and signed by an officer who had been authorised to carry on the routine duties of this Court. There are two aspects of the case. One is that the Clerk receiving the plaint or the officer signing the order must be deemed to have been so authorised since all official acts are presumed to have been done correctly. The other aspect is that if the Clerk was not authorised to receive the plaint and no arrangements had been made for receiving the plaints, the Court must be deemed to have been closed during the time the Presiding Officer was on leave and the plaint shall be treated to have been presented within time when the learned Sub-Judge returned from leave and made an order on 3-11-1965. We have a Division Bench case of our own High Court, Civil Appeal No.l-A of 1964 'A7ad Kashmir Govt. v. Shaheen Timber Trading Corporation' decided on 6-4- 1964 which has a bearing on this point. Learned counsel for the respondent had taken a preliminary objection to the appeal filed by the Government that the appeal though filed within the prescribed period of limitation should be treated to be beyond time because the appeal had been received by the Reader of the Court who was not authorised to receive the memoranda of appeals. It was laid down in this D.B judgment that in the absence of any rules authorising any official of the Court, the practice of the Court should be allowed to prevail. On inquiry it was found that there was no order authorising the Reader of the Court to receive appeals. Even the Registrar of the High Court had not been authorised to receive the appeals or petitions though the practice was that the Registrar received the appeals or petitions and in his absence the Office Superintendent or the Reader received the appeals or petitions. Order IV, rule 1 provides that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. When the Sub-Judge is on leave the office remains open and the plaints are received by his Clerks. It shall be presumed that the Clerk has been authorised to receive the plaints. It does not require a formal order in writing. The Clerk can be authorised even verbally to receive the plaints. As pointed out by the learned Single Judge the objection was not raised in the trial Court and was not the subject of an issue. The presumption being that all acts of Government officials are done properly, it is not necessary to frame an issue on the point and remand the case for evidence. At worst it shall be said that the Clerk of the Subordinate Court was not authorised to receive plaints and no arrangements had been made for receiving the plaints in the absence of the Presiding Officer.
Then the Court shall be deemed to have been closed during the time the Presiding Officer was on leave as was held by Bhide, J. In AIR 1934 Lah. 622 (1) and under section 4, Limitation Act this time shall be deducted in computing the period of limitation. The suit shall, therefore, be held to be within time when the plaint was placed before the Sub-Judge on his return from leave."
No authority to the contrary was cited, by learned counsel for the petitioner. There is also no evidence on the record showing that the Reader of the learned Civil Judge, who handled the suit giving rise to this civil revision, was not authorised to entertain suits in his absence. As indicated above, plea relating to improper presentation of plaint was not raised in the written statement and, therefore, no issue could be struck nor any evidence could be produced by the respondents in this behalf. Even the petitioner did not lead evidence in this regard. He just took the respondents by surprise by raising argument at the time of final hearing of the suit that the plaint was not properly presented. It is, however, not disputed that the learned Civil Judge was on leave on 24th September and thereafter he resumed duty on 6th October, 1970. In the circumstances, respectfully relying on the two cases cited by learned counsel for the respondents, I hold that if the Reader was authorised to entertain the plaint in question in the absence of the learned Civil Judge, its presentation before the Reader on 24th September, 1970 was in order. If the position was otherwise, the Court will be deemed to be closed till the plaint was placed before the learned Civil Judge on 6th October, 1970 and, in that event, by giving the respondents the benefit of section 4 of the Limitation Act, the suit would be held to be within time. Looked from any angle, the suit was not time-barred.
8. No other point was canvassed by learned counsel for the petitioner; and since the contentions raised by him are devoid of force, this civil revision fails. It is, accordingly, dismissed, with no order as to costs.