(3)Whether the suit of the plaintiff is within time, (5)Whether the sale consideration of Rs. 3,16,200 was fixed in good faith and or actually paid?
(6)Market value.
2. The learned Senior Civil Judge, Dera Ismail Khan, by judgment and decree dated 11th May, 1987 rejected the two pleas of the petitioner that she had been delivered possession of the suit land prior to the attestation of mutation and, therefore, the suit was barred by time and further that a sum of Rs. 3,16,200 had been fixed bona fide and had actually been paid. The suit was accordingly decreed on payment of Rs.66,949.35 representing average price worked out on the basis of one year's transactions prior to the one in dispute. The petitioner challenged the finding on the three issues in Regular Civil Appeal No. 57 of 1987 which was dismissed by the learned Additional District Judge, Dera Ismail Khan by judgment dated 13th June, 1988. The petitioner has challenged this judgment in this Petition in revision.
3. Mr. Muhammad Iqbal Farooqui, the learned counsel for the petitioner contended that the findings of the two Courts below on the plea of limitation and that on the payment of sale consideration suffered from the misreading and non---reading of material ocular as well as documentary evidence. In this context, he made pointed reference to the entries of Khasra Girdawari EX:DW.1/2 and the testimony of Hussain Bakhsh Patwari (P.W.1) and maintained that the petitioner--vendee has succeeded in substantiating her claim that she had taken physical possession of the land in dispute in Rabi, 1983 and, therefore, the suit brought on 2-11-1985 was hopelessly barred by time under section 31 (1) of the N.W.F.P. Pre-emption Act, 1950 (hereinafter called as the Act). He had also attacked order of the learned Appellate Court rejecting the application under Order 41, rule 31, C.P.C. Moved on behalf of the petitioner seeking permission to adduce additional evidence not only on merits but also on the additional ground that it had been disposed of in the appellate judgment itself instead of being decided by a separate order. Lastly, Mr. M.Iqbal Farooqi submitted that payment of a sum of Rs. 3,16,200 has also been proved by the evidence of the petitioner.
4. The learned trial Judge had disposed of the issue of limitation in conjunction with her findings on issue No.1 on the point of cause of action in the following words:- "Attestation of mutation No.167 on 25-11-1984 gave the plaintiff a cause of action and he instituted the suit on 25-11-1985. Suit of the plaintiff is within time. The issues are disposed of accordingly."
5. This manner of disposal of the issue of limitation can only be deprecated. The slipshod manner of disposal of issue of limitation and that too in conjunction with that of cause of action without any reference to evidence adduced by the A parties in support thereof can hardly be said to be in accordance with sub-rule (2) of rule 4 of Order XX, C.P.C. Under rule 4 (2) ibid a judgment should contain: (i) a concise statement of the case, (2) the points for determination, (3) the decision of the Court with regard to each issue, and (4) the reasons for the decision. In the impugned judgment of the trial Judge fourth requirement reproduced above has not been complied with at least qua the findings on issue No.2 on limitation. Nonetheless this defect alone would not invalidate the judgment as a whole. As against this the learned Additional District Judge had fully attended to this aspect of the petitioner's claim and observed as under:- "The learned counsel for the parties restricted their arguments on issues relating to limitation period of suit and sale consideration. Defendant appellant also submitted application for permission to produce additional evidence to prove actual payment of sale consideration shown in the sale mutation. The learned counsel for the parties addressed the Court on this application also. Record shows that suit sale mutation was attested admittedly on 25-11-1984 while present suit was instituted on 20-11-1985. The learned counsel for defendant /appellant pointed out that the sale in dispute was completed much before the attestation of suit mutation and defendant/appellant was shown in possession of suit property as vendee since Kharif 83 and as such the suit was time-barred. (Ex.P.W. 1/D-1) is copy of Khasra Girdawari which shows that defendant appellant is recorded in possession of Khasra No. 135 in suit as vendee through "Mazduran". Admittedly defendant appellant is a woman and Falak Sher attorney of defendant/appellant appeared as (DW-1) who stated that he had struck sale bargain in suit on behalf of defendant/appellant and had also paid sale consideration. He has also paid sale consideration. He has also stated that it was he who took the possession and planted trees and ploughed the land through tractor. He in reply to a question has also stated that he took the possession after the suit mutation. On the other hand (Ex.P.W. 2/1) is attested copy of suit mutation which shows that the statement of vendor Oadir Bakhsh was recorded on 22-11-1984 in which he deposed about the sale in question and receipt of part of sale consideration as earnest money and remaining before the identifying witnesses. None has been produced to support the version of defendant/appellant regarding physical possession when claim of defendant appellant is considered in context of ploughing of suit land through tractor. In her written statement, defendant appellant has specifically stated about payment of entire sale consideration and delivery of possession much before attestation of suit mutation. But the contents of mutation speak otherwise.
In the given circumstances mere entry of Khasra Girdawari to which presumption of truth is not attached and is even not supported by entry in the daily diary with regard to change of possession as per statement of Patwari, cannot be made convincing and plausible ground to term the suit of plaintiff respondent as time-barred. The suit of plaintiff/respondent is within time even if period of limitation is reckoned from the date of recording of statement of vendor. I thus hold that the lower Court has rightly decided this issue."
6. The case of the petitioner that she had taken under the sale physical possession of the disputed land or a part thereof has not been satisfactorily proved. Besides the reasonings of the learned Appellate Court reproduced above, a close scrutiny of the extract Ex. DW. 1/2 from Register Khasra Girdawari the words (i) " have been scribed in different ink than the preceding words " Now these words "were obviously added with a view to meet an objection as to how a femals in the strata of the society to which she belonged could take physical possession of a part of the land under the sale. The integrity of entry of the Khasra Girdawari in this behalf and the consequential testimony of Hussain Bakhsh Patwari (P.W.1) on this score is, therefore, not beyond reproach. If this piece of petitioner's evidence is ignored we are left with the bald statement of Falak Sher (DW.1) the attorney of the petitioner which has been discarded by the learned Appellate Court for very cogent reasons.
7. The learned counsel has on the authority of Muhammad Akbar v. Allah Ditta (PLD 1974 Peshawar 51) stressed that entries in Khasra Girdawari qua delivery of possession were conclusive proof of delivery of possession. In Muhammad Akbar's case, reliance was placed on the entries of Khasra Girdawari for proof of possession but this precedent does not propound that presumption of truth is attached to the entries of Khasra Girdawari. The evidentiary value of the entries of Khasra Girdawari has been examined by this Court in the following two recent authorities (1) Fakharunnisa v. Mohibullah Khan (PLD 1984 Peshawar 94) and (2) Sher Nawaz v. Batin Khan 1989 CLC 1332). In the former case of Fakharunnisa the following observations of Nazir Ahmad Bhatti, J, are noteworthy: "Needless to say that no presumption of truth attaches to entries in the Khasra Girdawari although presumption of truth attaches to the record of rights."
8.In the latter case, Wali Muhammad Khan, J. Relying on Imam Ali Shah v. Muhammad Sharif Khan (1976 SCMR 362) besides laying down certain considerations in order to attract the applicability of the second part of subsection (1) of section 31 of the Act to which I respectfully subscribe, observed:-- "It was the duty of the parties relying on the entries of Khasra Girdawari not only to get the same exhibited but also to prove the relevant contents thereof, as according to law no presumption of truth attaches to it."
9.Respectfully following the dictum laid down in the two precedents, I reiterate that no presumption of truth is attached to the entries in Khasra Girdawaris and any entry evidencing transfer of possession of the land must be proved by other cogent and reliable evidence. Applying this principle to the instant case there is not an iota of evidence to support the entry in the extract Ex.
DW.2/1 of Khasra Girdawari that the petitioner was delivered possession of the disputed land under the sale. Be that as it may both the Courts below have arrived at concurrent findings of fact with regard to the date of possession and as such these findings could not be disturbed in revision: Reference may be made to Bakhshu.v. Muhammad Ramzan (1980 CLC 210).
10. The next contention of the learned counsel for the petitioner is that classification of the land in dispute was different from that mentioned in the five-- yearly average price and, therefore, on the authority laid down in Haya Khan v. Said Khan (1981 SCMR 334), the price fixed on one year's average price was not the correct criterion to assess the market value. He thus contended that reference to a Commissioner should have been made to find out the market value. This authority, I am afraid is not attracted to the facts of the case in hand because Hussain Bakhsh Patwari (P.W.1) was neither cross-examined on the point of the classification of the suit land nor any other evidence exists showing the classification of the disputed land to be different from those mentioned in one yearly average price. Syed Abid Hussain v. Jalal Din (PLD 1981 Lahore 349), which was next referred to by the learned counsel, also cannot be relied, because in this precedent, the learned trial Judge refused to place reliance on five-yearly average price list because it did not mention classification of land subject to sale nor was it showing the situation thereof. In the instant case, the learned trial Judge has not relied upon the five yearly average price list and instead had fixed the price of the suit land on the basis of one yearly average price list. In Abdus Samad v. Fazal Haq (PLD 1983 Peshawar 253) which was lastly referred to by the learned counsel for the respondent propounded a different proposition that it was incumbent upon the trial Judge to have given weight to the report of Commissioner and that the leaned District Judge, therefore, rightly placed reliance on the report of the Commissioner. In the instant case neither the petitioner had moved nor the learned trial Judge deemed it appropriate to refer the dispute of average price to be determined by the Local Commissioner. In consequence the rule laid down in Abdus Samad's case has no relevance either.
11. On the other hand the learned counsel for the respondent had invited my attention to a recent case of Sher Nawaz Khan v. Batin Khan 1989 CLC 1332 wherein Wali Muhammad Khan, J. Has laid down the rule that the Courts should determine the market value of similar land in the vicinity at the time of sale transaction and that one year's average is more equitable and just than the five years' average in view of the rapid increase in the prices of the land and thus upheld the findings of the appellate Court on the point of market value. Respectfully following the rule laid down in Shah Nawaz Khan's case I also hold the view that owing to our precarious economy and rapid depreciation in the value of our currency one year's average should be followed, for it is more equitable and just than the five years' average. Consequently the concurrent findings of the two Courts below on issue No:6 are unexceptionable.
12. Before parting, I would dispose of an objection taken up by the petitioner against the disposal of application under Order XLI rule 27, C.P.C. For F adducing additional evidence in the appellate judgment itself. This objection is simply untenable in that there is abundant case-law for the proposition that no appeal lies against an order unless it is expressly allowed by Section 104 or Order XL11I. An order allowing or refusing to allow additional evidence is, therefore, not appealable independently. It can, however, be attacked in revision. That is what the learned counsel for the petitioner had done. It would, therefore, be reasonable to infer that it was not mandatory for the learned appellate Court to have passed separately an order refusing- to allow additional evidence.
The learned counsel for the petitioner has not been able to show any law against disposal of such an application in the appellate order itself. This objection raised on behalf of the petitidner is accordingly repelled.
13. The upshot of all the above discussion is that this civil revision has no merit and is hereby dismissed with costs.