' Land measuring 9 Kanals and 9 Marlas comprising of Khasra Nos.891, 803 and 804, in village Khasala Kalan Tehsil and District Rawalpindi, was purchased by the petitioner, in consideration of Rs,5,000, vide mutation No,228, attested on 18-8-1971.
2.To pre-empt this sale, Muhamamd Safdar, respondent herein, filed a suit for possession through pre-emption, on the plea of superior right of preemption, being collateral of the vendor and owner of the village estate.
' The suit was resisted by the petitioner, on the ground that the same was barred by time, as, according to the petitioner, the possession was given before the sale. He also claimed compensation for the improvement allegedly made in the land.
3. The suit was dismissed by the learned Civil Judge, on 27-3-1980. In appeal, the judgment was reversed and suit decreed by the learned Additional District Judge Rawalpindi, on 15-6-1982. The judgment of the first appellate court, has been called in question, in this revision.
4. Learned counsel for the petitioner argued, that the possession was delivered under the sale, before the attestation of mutation of sale and that the suit was not within time. He submitted, that the petitioner produced evidence, in the form of D.W.1 and D.W.2, who proved, that the possession was given 3-3/4 years before recording of their statements and in that way, the suit was not within time.
5. Learned counsel contended, that petitioner filed an application, in the trial Court, to the effect that the plaintiff-pre-emptor was a minor but the same was not disposed of. Learned counsel further submitted that the evidence of the petitioner on the question of possession was not specifically cross-examined and the same should be deemed to have been accepted. Lastly learned counsel submitted, that the learned trial Court had recorded well-reasoned judgment which could not be interfered with in appeal.
6. In rebuttal learned counsel for the respondent, submitted that the petitioner had not specifically given the date of the alleged delivery of possession, in the written statement and instead a vague objection was taken without giving necessary particulars. Learned counsel submitted that no evidence to prove transfer of possession under the sale, with notice to the public was produced.
Learned counsel further submitted that the respondent was major and was born in 1947. He submitted, that neither in the statement nor in the evidence, the petitioner ever pleaded that the respondent was a minor. He also produced the original Identity Card No,214-47-08435, of the respondent to show that the respondent was born in 1947 and was thus major, at the time of filing of the suit. Learned counsel lastly submitted that findings of fact recorded in appeal, has not been shown to be suffering from any misreading of the evidence on record.
7. The submissions made by learned counsel for the parties have been given due consideration in the light of the evidence on record.
8. The suit was filed by the respondent, on the ground of being collateral of the vendor. Pedigree- table was produced as Exh.P.2 and Exh.P.3. Oral evidence, in the form of P.W.1 and P.W.2 was also produced, to prove, that the respondent was collateral of the vendor and was also owner of the village estate while the petitioner did not hold either of the qualification. The superior right of the respondent was, therefore, established, beyond doubt which even otherwise, has not been disputed in the course of hearing of this revision petition.
9. As regard the plea of limitation, the same is not well founded. The perusal of the written statement indicates, that the petitioner had vaguely taken an objection of limitation without specifying the particulars thereof. In para 1 of the preliminary objections, it was claimed that the name of the respondent/plaintiff was not correctly given which required amendment and if amendment was made the suit will become barred by time. In para I of the reply on merits, it was stated that the suit was not within time. Neither any date of the alleged delivery of possession under the sale was given nor material particulars were mentioned. Admittedly, the sale took place through mutation No228, attested on 18-8-1971, while the suit was filed on 2-9-1972 i.e, within one year from the date attestation of mutation. Under section 30 of the Punjab Pre-emption Act, the sale being through mutation, the suit could be filed within one year from the attestation of mutation, unless it is proved that the possession was delivered under the sale prior to the attestation of mutation. To non-suit the pre-emptor on the plea of limitation, it had to be proved, by affirmative evidence, beyond any shadow that the physical possession was delivered to the vendee, under the sale, with a notice to the person concerned. In "Waris Ali and two others v.
Ghulam Rasul and another" (1979 CLC 533), it was held that the former owner who part with the property in favour of some other person, in a manner, that the same should be a notice to all concerned. It was ruled that an admission by the vendor at the time of making report to Patwari or in his statement before the Revenue Officer but the possession has been surrendered earlier may be of some use between the parties, to the transaction only but it cannot be extended to bind a stranger i.e, the pre-emptor. It was further observed that in pre-emption suit, to raise a plea that the suit will be barred by limitation it has to be proved by affirmative evidence and establish beyond shadow of doubt that physical possession had been delivered to vendee and taken over by the vendee under the sale.
10. In the present case, the petitioner has not produced affirmative evidence, to prove that the physical possession had changed hand, with a notice to all concerned. Not only, that such a plea had not been raised in the written statement that the pre-emptor had the knowledge of transfer of possession but also, in the evidence led, the petitioner, has failed to show, if the transfer of possession, took place, without knowledge of the pre-emptor. Except casual statement, that the possession was delivered before the sale, the witnesses produced by the petitioner did not urge, if any, overt act, attracting the intention of the public was ever done at the site.
10-A. In "Murid Hussain and another v. Muhammad Shafi and another" (1980 CLC 1753 Lhr), it was ruled, that to raise an objection of limitation, one has to prove that such development touching the sale of land of other property as would give a clear notice of transfer of ownership to prospective pre-emptor should have factually taken place. It was further observed that the delivery of physical possession to the vendee under the sale, should be one which is publicly demonstrated so as to serve a clear notice to the whole world that the vendee had purchased the land. The physical possession of the landed property pass from one person to another unless some practical and visible steps were taken to effect the change of possession and such steps must be proved by convincing evidence before one can succeed in defeating the pre-emptor on the ground that the latter had not pre-empted the sale within one year from the obtainment of physical possession.
11. Considering the facts of the present case, it is observed, that the evidence led by the petitioner, on the question of delivery of possession, lacks the inherent requirement of law and it could not be proved if the possession had taken place, on any date before the attestation of mutation of sale, or any visible act was done at the site, showing sale of land or transfer of possession under the sale, with a clear notice to the public including the prospective pre-emptor. So much so, the revenue record, such as Khasra Girdawari was not produced, to support the plea of change of possession.
This being so, the findings recorded by the learned appellate Court, to the effect that the suit was within time from the date of attestation of mutation and that the limitation could not be counted from the alleged delivery of possession, does not suffer from any legal infirmity or misreading of the record.
12. As regard the argument that an application was filed to plead minority, it is observed, that no such plea was raised in the written statement. It was never the case of the petitioner that the respondent was a minor. It is also observed that even in the evidence it was never claimed that the respondent was a minor. The statement of the petitioner, who appeared as P.W.3 shows, that he did not allege the petitioner to be a minor or raise any objection to the maintainability of the suit on this account. Throughout the trial, the petitioner never pressed this point which appears to have been waived, as is demonstrated by the evidence led. Even in the first appeal, the petitioner never urged this point, while defending the judgment of the trial Court. Apart therefrom, the Identity Card, of the respondent shows that he was born in 1947 and, therefore, he was major at the time when the suit was filed and, resultantly the objection does not carry any substance.
13. For the reasons above, there is no merit in this revision which is accordingly dismissed, leaving the parties to share their own costs.