' FAZAL ILAHI KHAN, J.--Leave to appeal I prayed for in these petitions against the consolidated judgment of Peshawar High Court, Circuit Bench, Abbottabad in Civil Revision Petitions Nos.4 and 5 of 1991 passed on 16-4-1995.
2. On the attestation of Mutation No,424 on 19-4-1994 regarding sale of the suit land in favor of petitioner suit for pre-emption was filed by the respondent in exercise of his superior right of pre- emption in the Court of Senior Civil Judge on 5-6-1984. Petitioner contested the suit by filing his written statements in which after denying the superior right of pre-emption of the respondent it was stated that he purchased the suit land (in case CP-445/95) for a sum of Rs,20,000 and entered the Sale Mutation No,4031 on 20-12-1974. Report to this effect was also recorded in the daily diary with the Patwari. That the sale was completed on 20-12-1974 and possession was delivered after the Revenue Officers recorded the statement of the vendor. That mutation remained pending and no final order was passed as in the meantime one Mst. Zubeda had filed a civil suit regarding the suit property and had got issued a letter in her favor Patwari Halqa, however, subsequently, entered Mutation- No,424 regarding the transaction in question and showed therein a sum of Rs,10,000 as the sale consideration for the land. This mutation was attested on 19-4-1987. The suit was, therefore, stated to be barred by time.
3. After recording evidence of the parties the learned trial Judge decreed the petitioner/plaintiff's suit on 5-2-1986 on payment of Rs,10,000 as its sale consideration. In appeal filed by the petitioner the learned Additional District Judge, framed two additional issues and sent the case back to the trial Court under Order 41, Rule 25, C.P.C. For recording evidence thereon and resubmission of his finding along with such evidence. On receipt of the finding given by the trial Court on the issues, on which both the parties had led their evidence, the appeal was heard. The learned District Judge on his finding on the issue of limitation accepted the appeal, set aside the judgment and decree of the trial Court and dismissed the respondent/plaintiff's suit. Aggrieved by the judgment and decree the respondent/plaintiff challenged the same in the aforementioned revision petition which was accepted and in consequence the judgment and decree of the Additional District Judge was set aside and the decree passed in favor of the respondent/plaintiff by the trial Court was restored.
4. It was contended by the learned counsel for the petitioner that the sale in this case was completed on 20-12-1974, the date on which the statement of the vender was recorded in the mutation proceedings and in the daily diary with the Halqa Patwari in which it had been admitted that the entire sale consideration had been received and possession delivered of the land under sale, therefore, the finding recorded by the learned trial Judge on the additional issues, which was accepted by the learned Additional District Judge in appeal, was not open the interference by the learned High Court in exercise of its provisional jurisdiction. It was further contended that it is evident from the record that the respondent/Plaintiff was not a shareholder in the property in dispute in the year 1974 when the sale took place and that he became owner in the disputed property on the attestation of inheritance mutation of his father. In support of his first contention the learned counsel for the petitioner relied on section 31 of the N.-W.F.P. Pre-emption Act of 1950 which provides one year period of limitation of a suit for pre-emption from the date of attestation (if any) of the sale by Revenue Officer having jurisdiction in the Register of mutation under the Punjab Land Revenue Act or from the date on which the vendee takes physical possession of Any part of such land or property whichever the date shall be the earlier.
5. We find no substance in both the contentions raised by the learned counsel. No doubt the petitioner has placed on file Photostat copy of the daily diary dated 9-12-1974 and copies of the mutation wherein the vendor has shown to have admitted the sale of the suit land to the petitioner on receipt of the sale consideration and has further stated that mutation be attested in favor of the vendee but as stated earlier the mutation remained pending due to pendency of civil litigation regarding the suit property. However, in order to substantiate his plea the petitioner has to prove that physical possession of the land in question was delivered to him under the sale on 20-12-1974 which he failed to prove. The sale in terms of section 31 of the N.-W.F.P. Pre-emption Act, for the purpose of limitation, could be complete either from the date of attestation of mutation of sale by the Revenue Officer or in case of oral sale by delivery of physical possession of such land. In order to prove delivery of possession of the sale it must be proved strictly, as such delivery of possession is presumed to be a notice of sale to the prospective pre-emptors. The question, therefore, whether the petitioner was successful in proving delivery of possession under the sale becomes very material and for that, therefore, we have to refer to the evidence recorded on the issues after the remand in the case and assess whether 2 Courts below have properly appraised and have applied their mind that the physical possession was delivered to the vendee under such sale.
6. In Civil Petition No, 446/95 5/6th share out of Khasra No,129 measuring 2 Kanals was sold and similarly in Civil Petition No,445/95 5/6th share was sold of an area out of 5 Kanals bearing Khasra Nos.271, 272, 273, 274, 275, 277/1 278/1. In the Jamabandi for the years 1974-75, 1978-79 and 1982-83 the aforementioned Khasra number 129 is shown consistently in possession of Karam Elahi son of Mir Muhammad as {{URDU TEXT}} while the rest of the Khasra numbers mentioned above are shown in possession of MuhammadMiskin "Ghair Dalcheelkar". Previously in the Jamabandi for the year 1966-67, Mst. Zubeda Khanum was shown in possession of these Khasra numbers through Muhammad Miskin, her son. No reliable evidence has been led, oral or documentary, or in the shape of Khasra Girdawari to show that physical possession of the suit land was delivered to the petitioner under the sale. According to the respondent the land under suit is in possession of the tenant on behalf of Mst. Zubeda Khanum and Mst. Bilqees through Muhammad Miskin. Muhammad Miskin who is recorded in physical possession of the land was examined after the remand who has stated that the land in suit is in his possession on behalf of one Muhammad Yousaf, the husband of Mst. Bilqees on Batai'. As against this documentary and oral evidence the petitioner in his examination-in-chief has affirmed the possession of Muhammad Miskin over the suit land. Such being the finding recorded by the learned trial Judge and that by the Additional District Judge that the suit was barred by time without properly appreciating the evidence on record was rightly interfered with by the High Court in exercise of its provisional jurisdiction.
7. On failure of the petitioner to prove delivery of possession under sale 18 the statement of the vendor recorded by the Revenue Officer admitting the sale on receipt of sale consideration is of little consequence as the sale would be deemed to have been completed on the attestation of mutation by the Revenue Officer and not the date on which the vendor's statement had been recorded. If any authority is needed reliance can be placed on Gharib Shah and others v. Zarmar Gul PLD 1984 SC 188.
8. As far as the second contention is concerned such plea was not specifically raised either in the written statement or in the grounds of appeal and no evidence to this aspect as such has been recorded to prove that. What in the year 1974 the petitioner was not a shareholder in the suit property. It is not denied that he did possess such right at the time of sale which is the requirement of law for enforcement of right of pre-emption.
' For the reasons stated above we find no infirmity in the judgment of the learned High Court and refuse to grant leave to appeal. Both the petitions are dismissed.