This second appeal under section 100, C.P.C. Arose out of a suit for possession through pre-emption filed by Muhammad Hussain, respondent on 8-10-1971 to pre-empt the sale of land made in favour of Nawab etc. The present appellants vide Mutation No. 9921, dated 8-10-1970. The suit was resisted by the appellants/vendees by taking various pleas including that of limitation. The learned trial Court after framing the issues, recording the evidence and hearing the parties, decreed the suit vide judgment and decree dated 4-5-1974. The first appeal filed by the vendees/appellants failed vide judgment and decree dated 7-11-1974 passed by learned District Judge, Mianwali. This led to the filing of present second appeal.
2. The only question agitated before the learned first appellate Court as well as before this Court is, whether the finding returned by both the learned Courts below on the issue pertaining to limitation is correct. The factual plea taken by the vendees/appellants pertaining to the issue of limitation was, that the transaction of sale was completed on 26-6-1970 and the physical possession also changed hands there and then. In support of this plea, reliance was placed on the entry recorded by the Patwari in the Mutation Register as well as on the statement of vendees and vendors made before the Revenue Officer. A copy of Mutation No. 9921, dated 8-10-1970 was placed on record as Exh. P.
2. It was added that Patwari recorded the relevant entry in column No. 15 of the Mutation Register on 26-6-1970 and statement of vendees as well as vendors was also recorded by Assistant Collector Grade-II on the same day but the mutation could not be sanctioned on the said date as other formalities were yet to be completed. The mutation was finally sanctioned on 8-10- 1970 by the Revenue Officer after completion of the formalities. On the above premises, it was claimed that the physical possession having been delivered at the time of completion of the sale on 26-6-1970, the date of attestation of mutation is inconsequential and the suit having been filed on 8-10-1971, was barred by time. This plea, however, did not find favour with both the learned Courts below. The learned trial Judge has observed that it is not proved from evidence that the physical possession of the land. In dispute passed on to the vendees on 26-6-1970 or before the attestation of the mutation as alleged in the evidence. So, the period of limitation is to be reckoned from the date of attestation of mutation i.e. 8-9-1970. This finding was confirmed by the learned first appellate Court with the observation that there is no strict and solid proof of actual physical possession of the vendees/appellants over the suit-land since 26-6-1970 or a week thereafter.
3. I have gone through the oral as well as documentary evidence available on record with the assistance of the learned counsel for the parties. I am in full agreement with the concurrent finding of fact recorded by the learned Courts below. The assertion of the vendees/appellants that they got the physical possession of the suit land under the sale on 26-6-1970 or a week thereafter, remains unsubstantiated on record. Nawab Khan, one of the vendees appearing as D.W. 2 stated that the possession was obtained 8/10 days of the making of the statement before the Tehsildar and his brother Khawas Khan D.W. 3 started cultivating the land. In cross-examination he admitted that though in the mutation proceedings change of possession since 26-6-1970 stands recorded but in fact the possession changed hands subsequently. He added that entry in favour of Khawas Khan was recorded at the time of change of possession. Khawas Khan D.W. 3 stated that he had taken possession on his own of the land in dispute two to four days after making of the statement before the Tehsildar. In cross-examination, he stated that the vendors had also made a statement at the time of recording of the entry in Mutation Register that they will deliver the possession within two to four days. He added that he was, earlier to the transaction, tenant in the land in question on half Batai basis and that he was occupying the land as a tenant since six months or one year before the sale transaction. He further admitted that the vendors delivered the possession to them after three or four days of the attestation of the mutation and in this manner all of the vendees came in possession of the land. As against the aforesaid statement, Atta Muhammad D.W. 1, in examination-in-chief stated that the possession was delivered after five to ten days of the payment of sale price and Khawas Khan vendee had started cultivation. In cross-examination he stated that the mutation was also entered but the possession changed hands after five to ten days of the attestation of mutation. This is the state of oral evidence available on record.
4. The documentary evidence relevant to the issue comprises of copy of Khasra Girdawari for Kharif 1969 to Kharif 1971 (Exh. D. 3), copy of Khasra Girdawari for Rabi 1972 to Kharif 1973 (Exh. D. 4), copy of Khasra Girdawari for Kharif 1969 to Rabi 1971 (Exh. D. 5) and copy of mutation Exh. P.
2. As per Khasra Girdawari, Exh. D. 3, Khawas Khan, D.W. 3, one of ,the vendees, was shown in possession of one of the Khasra Numbers in Kharif 1970. This entry was recorded on 3-11-1970. It may be noted that the mutation of .Sale was attested on 8-10-1970. The other Khasra Girdawari Exh. D. 4 is of later crops and as such is not relevant for the present purpose. Exh. D.3, Exh. D.4 and Exh. D. 5 do not show the vendees to be in possession of the entire land purchased by the vendees. Coming to Exh. P. 2 the mutation, it is pertinent to note that in column No. 15 incorporating the statement of the vendees, the fact that possession has changed hands finds no mention. The statement of vendors and vendees appearing in mutation Exh. P. 2 shows that the land was under mortgage and the sale was made subject to said mortgage. Moreover, share in the Khata was sold. It is not a case of sale -of specific Khasra number as none has been mentioned either in the statement of vendors and vendees or in the order sanctioning the mutation.
5. In view of above, the appellants/vendees have failed to establish satisfactorily that the possession was obtained by them on 26-6-1970 or a week thereafter. In these circumstances, the learned Courts below were right in holding that the period of limitation is to be reckoned from the date of attestation or mutation. The concurrent finding of fact is based on evidence on record.
There is neither any misreading nor non-reading of any material piece of evidence.
6. For the reasons given above, there is no, merit in this appeal and the same is hereby dismissed with cost.
H.B.T./M-1523/L