' Briefly stated facts of the case out of which this civil revision has arisen are, that land measuring 2 kanals and 2 marlas equal to 7/52 shares out of the land measuring 16 kanals and 7 marlas bearing Khasra No, 1991 situated in the revenue estate Pakhwal, Tehsil and District Jhelum, was sold in favour of Fazal Elahi, deceased, predecessor-in-interest of the respondents, allegedly in the year 1960 but the sale mutation was sanctioned on 9-10-1970. Muhammad Ashraf petitioner field a suit to pre-empt the aforementioned sale, on the basis of the qualification of being a co-sharer in the khata wherein the land in dispute is situate on 9-10-1971. The suit has been contested by the vendee on the grounds that the pre-emptor did not possess the superior pre-emptive right and further that the suit is barred by time inasmuch as the sale took place in the year 1960, whereunder possession was obtained by the vendee in the year 1960. On the basis of the pleadings of the parties, learned trial Court has framed the following issues:-
(1) Whether the suit is within time? OPD.
(2) Whether the plaintiff has got the superior right of pre-emption than the defendant vendee?
(3) Relief.
2. In support of his case, plaintiff produced Makhzan Khan (P.W.1), Muhammad Akram (P.W.2), Muhammad Sarwat (P.W.3) and himself appeared as (P.W.4). Besides oral evidence, he produced a copy of the jamabandi for the year 1968-69, Exh.P1 and mutation in question Ex.P2. Copy of the jamabandi, Exh.P1 proves that the plaintiff/petitioner is a co-owner in the khata wherein land in question is situate.
3. As against the above evidence, the vendee defendant produced Walait Khan, D.W.2, Muhammad Rafique Patwari D.W.2 and himself appeared as D.W.3. Besides oral evidence, the vendee produced a copy of agreement Exh.DI, a copy of Khasra Girdawari, Exh.D2 and a copy of the power of attorney Exh.D3 and closed his case. Oral statements of the witnesses produced by the defendant vendee are to the effect that the land in question was purchased by the vendee in the year 1960 vide agreement for sale Exh.D1, wherein delivery of possession is mentioned and further that a power of attorney had been executed by the vendor in favour of the vendee wherein he had acknowledged the delivery of possession under the sale in the year 1960. It is alleged in the written statement as well as in the evidence that due to the Consolidation proceedings the mutation of sale could not be sanctioned and therefore it was sanctioned in the year 1970 when the consolidation proceedings had terminated.
4. Learned trial Court vide judgment dated 16-6-1973, decided both the issues in favour of the petitioner and decreed the suit in his favour, holding that he possessed superior pre-emptive right as being a co-sharer in the khata and further that the period of limitatioin in this case shall start from the date of attestation of mutation of sale and that the vendee has failed to prove the sale took place in the year 1960, whereunder he entered in possession of the land in question in the year 1960 and therefore, the suit having been field within one year from the date of attestation of mutation of sale is within time . Learned trial Court took note of the fact that it is a joint khata and a share out of the same having been purchased, it cannot be said that the vendee took possession of the land in question prior to the date of attestation of the mutation of sale.
5. Judgment and decree rendered by the learned trial Court was challenged by the vendee predecessor-in-interest of the respondents by way of appeal in the District Court Jhelum, which has been accepted and the suit has been dismissed as being barred by time vide judgment and decree dated 20-1-1975. This judgment and decree has been challenged in this civil revision.
6. Learned counsel for the petitioner in support of his case has argued that the judgment at variance rendered by the learned first appellate Court is not lawful. According to the learned counsel, a share out of joint khata has been purchased by the vendee and there is absolutely no evidence on record to prove that the vendee either purchased the land in question in the year 1960 or took possession thereunder before the date of attestation of mutation of sale and therefore findings recorded by the learned first appellate Court are illegal as the same are based upon misreading of evidence and misinterpretation of the documentary evidence placed on the record of the case. Learned counsel in support of his arguments has taken me through the evidence produced in the case.
7. As against the above arguments addressed by the learned counsel for the petitioner, learned counsel for the respondents has argued that there is a recital in the agreement for sale dated 3-9- 1960 Exh.D1 which is to the effect that the possession has been delivered to the vendee and further that in the Khasra Girdawari Exh.D2 relating to kharif 1969, the vendee has been recorded in possession of the land in question on account of sale, therefore, it stands established that the vendee took possession of land in question prior to the date of attestation of mutation and hence the suit is barred by time. Learned counsel has further referred to the deed of special power of attorney Exh.D3 which has been executed on 25-6-1976 wherein it has been stated that the possession was delivered to the vendee as per the agreement for sale dated 3-9-1960. Relying upon the recitals, regarding delivery of possession in documents Exhs.D1 and D3 and entry of Khasra Girdawari Exh.D2, learned counsel, has vehemently argued that it stands established that sale had taken place earlier to the attestation of the mutation of sale in the year 1960 and possession of the uit land was taken under the sale in the year 1960, hence the suit is clearly barred by time.
' Learned counsel has also referred to the statement of DW2 Patwari halqa, who has stated that Khasra Girdawari Exh.D2 is a correct copy of the record. It may be mentioned here that this witness has admitted that the petitioner is a co-sharer in the Khata. In support of his contentions, learned counsel has placed reliance upon cases of Muhammad Anwar and others v. Ghulam Saddiq and others PLD 1989 SC 749 and Mubarik Shah and another v. Umar Khan 1985 CLC 447.
6. In reply to the arguments addressed by the learned counsel for the respondents, learned counsel for the petitioner has argued that if a share is purchased out of a joint Khata the period of limitation is to start with effect from the date of attestation of mutation and further that the recitals in various deeds are irrelevant and inadmissible evidence against the pre-emptor who is not a party to such deeds.
9. I have considered the arguments addressed by the learned counsel for the parties, have gone through the case-law cited at the bar and the two judgments which are variance and the evidence produced in the case.
10. Superiority of right of pre-emption of the petitioner is admitted and has been held to be proved and has not been challenged by the respondents. Admittedly, khata is still joint and a share out of the khata has been purchased as is clear from the contents of mutation in question which is Exh.P2.
Document Exh.D1 which is not a sale-deed and is an agreement for sale also shows that actual physical possession was not delivered at the time of execution of the said deed. The recital about delivery of possession is that dakhal malkana has been delivered. Date of delivery constructive possession cannot constitute a terminus quo for starting a period of limitation against a preemptor inasmuch as it does not constitute notice to him. Even otherwise, as according to the respondents themselves the village was under consolidation, neither actual nor constructive possession could have been delivered nor any sale transaction could have taken place without permission granted by the Consolidation Authorities. It is not the case of the vendee that the transaction of sale had taken place. His case is that it was an agreement for sale, consequently, in 1960 neither any sale took place nor actual physical possession was delivered thereunder, hence the cases of "Muhammad Anwar and others" and "Mubarak Shalt and another" referred to supra, are distinguishable on facts and not applicable to the facts of the present case. Case of `Muhammad Anwar' supra rather supports the petitioner inasmuch as the suit had been held to be within time in the cited case due to the lack of proof of delivery of possession under the sale. Document Exh.D2 is also not trustworthy inasmuch as in the jamabandi Exh.P1 possession is recorded as joint. A Khasra Girdawri which contains entries contrary to the jamabandi cannot be relied upon, particularly, when the entry on the face of it is false and fishy.
' Case of the vendee respondent is that the sale has taken place in the year 1960 and the possession was also delivered in that year but in the Khasra Girdawari the entry of possession under the sale has been reflected for the first time in Kharif 1969. It appears to be a forged entry and at any rate there being no evidence about the factum of prior sale, it cannot be said that even Kharif in 1969 the vendee came in possession of the land under the sale. Document Exh.D3, which is a deed of special power of attorney, also does not advance the case of vendee inasmuch as the delivery of possession recited therein refers to the agreement for sale dated 3-9-1960 wherein delivery of "Dakhal Malkana" is recorded and there is no mention of delivery of actual physical possession, consequently, even if recitals of Exhs. D2 and D3 are accepted as relevant pieces of evidence, it cannot be said that vendee had entered in the physical possession of the land in question under the sale prior to the date of attestation of the mutation of sale. In case of Ghulam Rasul and 5 others v. Zaheer Ahmad 1989 CLC 482, it has been held as under:-- "Sale pre-empted by the respondent is recorded in the registered sale-deed, Exh.P1, dated the 13th January, 1983. Admitedly, his suit was within time with reference to the above date. His suit would have been time-barred if the petitioners had been able to establish that the sale had taken place before the said date and they had also taken physcial possession of the land under that sale prior to the above date. There is, however, no evidence in this regard. For reasons already given, evidence of their possession under the agreement to sell does not inspire confidence. Even if that evidence is relied upon, it will be of no use to the petitioners because possession in pursuance of the agreements to sell.cannot be treated as possession under the sale."
11. Even otherwise the plea raised by the vendee respondents proved to be false inasmuch as no evidence has been purchased as to why the mutation of sale was not attested for a period of about ten years in case the sale had actually taken place in the year 1960. There is absolutely nothing on the record to prove that the consolidation proceedings continued fbr a period of about ten years. It is an established principle of law that recitals in documents to which a pre-emptor is not a party are not relevant and admissible evidence against him as held in case of Dharam Singh v. Kirpal Singh and others AIR 1923 Lahore 31 wherein it has been held as under:-- "Now, in the first place even those recitals do not show the nature of the possession which was given. The delivery of possession to Bhagat Ram on the day of his purchase would be of no avail to the plaintiffs unless the possession delivered was physical possession and there is nothing to show that it was. The mere delivery of symbolical proprietary possession would not be sufficient. In the second place a formal recital as to the delivery of possession, which is to be found nearly in every sale-deed, would be a very weak piece of evidence even between the parties to the deed, but as against Dharam Singh, it is no evidence at all, and I am unable to agree with the lower appellate Court's view on this point. Recitals in deeds are, as held by the Privy Council in 39 IC 627, evidence only against the parties to the deeds and persons claiming through or under them. A pre-emptor does not claim through or under either the vendor or the vendee, but his right is, as the learned District Judge himself says, a right to be substituted for the vendee. In 7 All. 775 referred to in 90 PR 1909, Mahmud, J. observed that the right of pre-emption exists antecedently to the sale, which is a condition precedent, not to the existence of a right, but only to the enforceability. If the recital in a deed of sale as to the delivery of possession to the purchaser were evidence against the pre- emptor, a recital as to the payment of the price and as to its amount would also be evidence against him, but it is not contended that this would be the case, and it has in fact been held in 102 PR. 1890 that the price entered in a deed Of sale is, no evidence as between a pre-emptor and the vendee that the price was paid. It is indeed obvious that conditions inserted in a sale-deed with the object of defeating the claim of a preemptor cannot possibly be evidence against him. See in this connection 20 IC 951.
' As, therefore, the entries in the deed of the 9th February, 1919, as to the delivery of possession tc the vendee are not relevant against Dharam Singh, the learned District Judge's finding as to possession having been delivered on the date of the execution of the deeds is not based on any evidence and cannot be supported?
Consequently, findings of the learned District Judge to the effect that the sale had taken place prior to the date of attestation of mutation of sale and that the possession had been taken over by the vendee prior thereto is without any lawful basis and justification and well-reasoned judgment rendered by the learned Civil Judge on this issue has illegally been set aside by the learned appellate Court without any lawful and cogent reason. Khata being joint and only share having been sold out of the Khata, the period of limitation shall start in this case with effect from the date of attestation of mutation of sale i.e. 9-10-1971. The suit, therefore, was rightly held to be within time by the learned trial Court. Finding rendered by the learned first appellate Court on this issue, therefore, is not maintainable and hence is set aside, finding of the learned trial Court is restored and the suit is held to be within time.
12. Resultantly, civil revision is accepted, impugned judgment and decree passed by the learned first appellate Court is set aside and the judgment and decree passed by the learned trial Court is restored. In case the plaintiff/petitioner has not deposited the decretal amount. he shall deposited the same in Court on or before 10-3-1993 after deducting the 1/5th preemption money if already deposited him and in case of failure of the plaintiff/petitioner to deposit the decretal amount within the stipulated period of time, the suit shall stand dismissed. The parties are left to bear their own costs.