' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This appeal through leave to this Court is directed against the judgment dated 6-3-1993 of Lahore High Court, whereby a Regular Second Appeal by the defendant-vendee arising out of a pre-emption suit was dismissed on the affirmation of the finding of the Appellate Court that suit was not barred by limitation.
2. Vide Mutation No,1101 sanctioned on 26-2-1968, land measuring 116 Kanals and 14 Marlas situate in the revenue estate of village. Kot Mial, Tehsil Shorekot, District Jhang, was purchased by the appellant herein from one Muhammad Nawaz allegedly for Rs,20,000. On 25-2-1959, that is to say within one year of the date of attestation of the mutation, Ahmad, predecessor-in interest of respondents 1(i) to 1(iv) and Mushtaq Hussain respondent No,2 filed a suit for pre-emption on payment of Rs,8,000 on the ground of their coherer ship in the disputed holding. One Zulfiqar being rival pre-emptor was impleaded as a defendant but subsequently he seems to have lost interest in the litigation.
3. The appellant contested the suit, inter alia, on the ground, that it was barred by limitation because he had entered into physical possession of the land under sale before 13-2-1967, that is to say much before the attestation of mutation in his favour as such the suit was barred under section 30 of the Punjab Pre-emption Act (I of 1913). The appellant led evidence, inter alia to prove that the sale in his favour was completed much earlier and had taken physical possession even before 13-2-1967 when Mutation No,1101 under pre-emption was entered; it was placed before the Revenue Officer on 15-2-1967, when he recorded the statement of the parties thereto; the proceedings were deferred for proof of the payment of District Council fee and; it was ultimately sanctioned on 26-2-1968: therefore, the suit brought on 25-2-1968 was barred by time. The learned trial Court after examining the mutation proceedings, taking into consideration the fact that about 64 Kanals of land was not culturable at the time of the sale was not pursuaded to accept the contention raised on behalf of the appellant that the unarable land was capable of being taken possession of or that possession of parcel of culturable land was proved to have been delivered to him on the direction of the vendor to the tenant to attorney to the vendee. The learned trial Judge had no hesitation to hold that the appellant had "produced no documentary evidence in support of his contention". The ocular evidence sought to be relied upon by the appellant in this context was appraised threadbare by the trial Court and maintained that it was not worthy of reliance and reached the conclusion that the appellant has miserably failed to substantiate the plea that he had taken physical possession before 26-2-1967 and thus held on Issue No,4 that suit was not barred by time.
4. On appeal by the appellant before the District Judge, findings of the learned trial Judge on Issue No,4 were assailed. The learned Appellate Court after elaborate discussion upheld the findings of the trial Court on the plea of limitation.
5. Feeling still dissatisfied the appellant invoked the revisional jurisdiction of the High Court but without any success. The learned Judge in the Chambers of the High Court upheld the findings of the two Courts below on the issue of limitation. In this regard the reasons that prevailed with the learned Single Judge are reproduced hereunder:-- "The perusal of the sale mutation indicates that it was entered on 13-2-1967 and the statements of the parties were recorded thereon on 15-2-1967, while the final order about its sanction was passed by the Revenue Officer on 26-2-1968. The payment of District Council fee was a condition precedent to the sanction of mutation and the final order was deferred for ascertaining its payment. The final order dated 26-2-1968 indicates that even a part of the sale price was also paid by the vendee to the vendor. There is nothing on the record to show that the vendee had taken possession of the suit land earlier to 26-2-1968. So, for all these reasons the limitation started from 26-2-1968 and not earlier. The suit was brought within a period of one year from this date and it was within time. The issue was, therefore, rightly decided by the Courts below. Consequently there being no force in the appeal, the same is dismissed."
6. Leave to appeal was granted by this Court to consider the following contention raised on behalf of the appellant:-- "The learned counsel for the petitioner has submitted that the District Council fee was paid on 13-2- 1967; the sale was effected for all purposes on 13-2-1967, therefore, the suit of the respondents should have been dismissed. He stated that the date of physical possession is not relevant in this case, as according to section 30 of the Punjab Preemption Act the period of limitation will start either from the date of attestation of sale or from the date of possession whichever is earlier. In the present case the date of attestation is 13-2-1967, therefore, the learned counsel has relied upon Muhammad Malik v. Mst. Razia Begum PLD 1988 Lah. 45, wherein it has been observed that sanction of a mutation was not essential ingredient or incident of sale. He has also referred to Register Dakhil Kharij."
7. The main contention reiterated before us by Sheikh Muhammad Asadullah, learned counsel for the appellant, was that notwithstanding the attestation of mutation on 26-2-1967, the appellant was proved to have taken physical possession of the land under pre-emption on 13-2-1967 when it was entered, therefore, the learned two Courts below had erroneously held that the suit was not barred by limitation and that the learned Single Judge had erred to uphold the aforesaid findings.
In support of this contention Sheikh Muhammad Asadullah placed reliance on: (1) Sher Muhammad v. Rajada and another PLD 1969 Lahore 471 and approved by this Court in Sher Muhammad v.
Rajada PLD 1981 SC 591 which had been followed in Muhammad Malik v. Mst. Razia Begum PLD 1988 Lahore 45.
8. Mr. Gul Zarin Kiyani, learned Advocate Supreme Court, appearing on behalf of the respondents, on the other hand, invited our attention to the law laid down by this Court in: (1) Imam Ali Shah v.
Muhammad Sharif Khan 1976 SCMR 362, (2) Gharib Shah and others v. Zarmar Gui PLD 1984 SC 188 and (3) Ghulam Samar v. Mazhar Ahmed PLD 1995 SC 677 to contend that the statement of the vendor before the Patwari or even before the Revende Officer may be of some use to them but they cannot bind the pre-emptor and further that the aforesaid dates appeared to have been fabricated with a view to setting up the plea of limitation based on taking of possession on a date prior to the attestation of mutation.
9. The facts of the case of Sher Muhammad from Lahore jurisdiction and the ratio deducible.
Therefrom had been approved by this Court in Sher Muhammad v. Rajada PLD 1981 SC 591. In that case an oral sale transaction of the disputed land was entered in the mutation on 14-9-1951 making a categorical reference to the delivery of possession to the respondent. Since the vendor did not accept the liability to pay the Agricultural Income Tax in respect of the suit land, the mutation was rejected by the Revenue Officer on 12-12-1953. It appears that the vendee continued to remain in possession till 9-3-1956 when Rajada and Pehlwan respondents lodged a report copy Exh.D-1 with the Patwari with a fresh recital of the sale of the suit land in their favour and their possession thereof since four years. In pursuance of this report, a fresh mutation (No,220) was entered by the Patwari on 18-5-1956 and was sanctioned by the Revenue Officer on 30-10-1956. The controversy surviving before the High Court was whether the earlier sale of 1951 should be considered to be non-existent for the purpose of limitation or else it should start running from 30- 10-1956 when the subsequent Mutation No,220 was sanctioned for the first time. It was held that even from the Patwari's report Exh.D-1, it was abundantly clear that the respondents had been in continuous possession of the land since 1951, therefore, it was held that the suit was barred by time having been brought in 1957, and rightly so, because the Courts had consistently held therein that the vendee had been in possession of the land since 1951. In the instant case all the three Courts have concurrently come to the conclusion that the petitioner has miserably failed to substantiate his plea that he had taken the possession of the land on 13-2-1967 when the mutation under pre- emption was entered. In the precedent case of Muhammad Malik (supra) again from Lahore jurisdiction, the learned Single Judge had rightly declined interference in the second appeal in the finding that the sale in favour of Ghtilani Rasool vendee therein had taken place on or before 10-6- 1966 which was a date earlier than the actual attestation of mutation under pre-emption. In the case in hand, however, as stated earlier, the three Courts have concurrently held that the appellant had not been able to adduce convincing evidence that he had taken possession of the land on the day when he reported the matter and the mutation was entered. We are, therefore, of the considered view that the precedent cases sought to be relied upon by the learned counsel for the appellant are not attracted in the instant case.
10. In the case of Imam Ali Shah (supra) referred to by a learned counsel for the respondents, it was held that since the vendor therein himself was not in actual physical possession of the land, he was not in a position to deliver its physical possession to the vendee and that any agreement with the tenant with regard to future adornments would not satisfy the requirement of law for the relevant purpose. In Gharib Shah's case (supra), the contention of the preemptor that attestation of mutation was complete when the statement of the vendor therein was recorded in token of attestation of sale and that formal order of sanction of mutation was not necessary for the 'relevant attestation' when it was held that the operative part of 'attestation of sale' in, that case was 9-1-1975 and that being so, the suit filed on 7-1-1976 was within limitation. In this precedent it was held by the learned Division Bench of this Court that the date on which the statement of the vendor is recorded on the mutation in token of entry of sale is not the date of attestation of mutation and that the date of attestation of mutation for the purpose of pre-emption is the actual date of attestation of mutation by the Revenue Officer. The latest authority of this Court in the case of Ghulam Sarwar (supra) has set at rest the controversy raised before us. The plea of the vendee therein that he had taken possession of the land on 10-6-1972 when the bargain was struck and had paid a sum of Rs,10,000 as earnest money to the vendor, therefore, limitation started running from that date and the suit instituted by the respondents more than one year thereafter was hit by the bar of limitation was not entertained. In this context the reliance was also placed by the vendee on the recital in the receipt dated 10-6-1972 the sale agreement dated 10-7-1972, entry in the 'Rozenamcha Waqiati' dated 10-7-1972 and the statements of the parties to the sale referred to in the order of the Revenue Officer on the sale mutation were held to be not of a nature and character as was required to establish the actual delivery of physical possession which was intended to serve as a notice to all the prospective pre-emptors. It was, therefore, held that the position taken by the learned counsel was factually incorrect as the matter was placed before the Revenue Officer on 20-3-1972 and not on 20-7-1972. It was accordingly ruled that as the mutation was sanctioned on 24-7-1972, therefore, the limitation started from that day and not from 20-7-1972 as has been contended.
11. In the instant case, it appears, the mutation was actually attested on 26-2-1968, although the mutation was entered on 13-2-1967 and the statement of the vendor was recorded on 15-2-1967. It would thus be seen that if the terminus a qua is the date of the attestation of mutation, then the suit is plainly within time. But the case of the respondent was that he had taken actual possession of the land on 13-2-1967 when the mutation was entered. The evidence adduced by the appellant in support of this plea was considered by the Courts including the High Court who have concurrently found that this plea has remained far from proved. We find that concurrent findings of the three Courts are not shown to suffer from any legal infirmity of the kind warranting our interference in this appeal.
12. There is no merit in this appeal which is hereby dismissed. The parties are, however, left to bear their own costs.