This Civil Revision arises from the judgment/decree dated the 1st of February, 1986, of the learned Additional District Judge, Gujranwala. Whereby the respondents-vendees' appeal was accepted, the trial Court's decree passed in favour of the petitioners/pre-emptors was set aside, and the suit was dismissed.
2. The mutation in question was attested on the 27th of October, 1979, whereas the present suit was filed on the 12th of October, 1980. It was opposed, inter alia, on the ground of limitation. An issue framed on the point was held against the respondents-vendees but the lower appellate Court reversed it holding that since the vendees had taken possession of the land under the sale earlier than attestation of the mutation, the suit was barred by time.
3. Ch. Arshad Mahmood, Advocate for the petitioners/pre-emptors criticised the impugned judgment urging that at least three unlisted documents, namely, Jamabandi 1976-77, copy of the disputed Mutation No. 509, and a certificate in regard to the transfer of the Patwari were not only allowed to be placed on the record during appeal but were, in fact, relied upon for reversing the Judgment of the trial Court. Secondly, he stressed that Khasra Girdawaris Exhs. D.2 and D.3 were misread to infer that the respondents-vendees had taken possession of the land under the sale in Kharif 1979. Lastly, he maintained placing implicit reliance upon the `Roznamcha' Exh. D.4 in regard to recital as to delivery of possession was against the long recognized rule of not regarding such recitals an evidence of delivery of physical possession.
4. On the other hand, Mian Saeed-ur-Rehman Farrukh, Advocate, replied that though it was open to the lower appellate Court to call further evidence, yet the illegality, if any, could be remedied by remanding the case with a direction to allow the petitioners to produce rebuttal thereof. In regard to the evidentiary value of the `Roznamcha' Exh. D.4 read with Khasra Girdawaris Exhs. D.2 and D.3, his point was that at least some of the fields sold lay vacant at the time of sale and that delivery of possession thereof to the vendees was adequately proved by them. Moreover, he urged that since the petitioners were marked present in this `Roznamcha' at the time of delivery of possession, they had knowledge thereof and that the limitation of one year starting from the date of the entry viz., the 18th of September, 1979, had run out when the suit was instituted on the 12th of October, 1980.
5. Calling of additional documents by the lower appellate Court, without affording an opportunity to the petitioners/pre-emptors, was manifestly not countenanced. It should have allowed them to produce evidence in rebuttal. The judgment was really vitiated inasmuch as it had placed considerable reliance upon those documents and since those were not formally a part of the record; it was not permissible to have made it rest on the strength of their probative value. Next, the contention that the Khasra Girdawaris Exhs. D.2 and D.3 did not convey what was assumed by the learned Additional District Judge, was also correct. He found in para. 6 of the impugned judgment that possession was delivered to the respondents under the sale in Kharif-1979 but it was nowhere mentioned in the Khasra Girdawaris. What those reflected was that the respondents came into possession of at least the cultivable fields in Rabi-1980, when this crop was inspected on the 16th of March, 1980. Counsel claimed that Rabi was sown back in October-1979 and, therefore, their possession should be assumed as from that early date It is not permissible to relate back possession on the date of crop inspection to the sowing season. The point was settled in Riaz Ahmad v. Um-e-Salmi 1985 SCMR 1140. Accordingly the vendees' possession shall be taken to be effective from the 16th of March, 1980, when the crop inspection was conducted. The suit, as from that date, was quite in time. ' The entries were misread. The `Roznamcha' Exh. D.4 purported to deliver all Khasra Numbers to the respondents on the 17th of September, 1979, whereas Khasra Girdawaris as well as oral evidence disclosed that larger portion of the suit land was under cultivation having either sugarcane or cotton or paddy. The vendor himself deposed as witness that he had delivered possession of some of the fields to the vendees after himself lifting the paddy crop. At another place, he in a flat rate disclosed that he had delivered possession of the entire land after attestation of the mutation. The report of the Patwari in Exh. D.4 did not squarely qualify to be evidence of delivery of physical possession. In Waris A.I etc. v. Ghulam Rasool-etc. 1980 CLC Lah. 728; Murid Hussain etc. v. Muhammad Shafi etc. 1980 CLC Lah. 1753 and Ajun Khan v.
Muhammad 1985 CLC (Lah.) 728, something more than mere recitals was considered necessary to prove delivery of possession to vendee so as to constitute notice to all prospective pre---emptors.
6. The revision petition is allowed, the impugned judgment is set aside and the decree passed by the trial Court is restored, of course, with the modification that the pre-emotion amount will now be treated as Rs. 70,000 as determined by the lower Appellate Court. It is not challenged by the petitioners as they agree to pay it. They shall deposit the same subject to the amount already deposited with the trial Court by or before the 28th of March, 1989. Failing this deposit within the period, the petitioners' suit shall stand dismissed with costs. Otherwise no order as to costs.