' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal has been instituted by leave of the Court against the judgment, dated September 14, 1993 passed by the Lahore High Court.
2. Precisely stating facts relevant for disposal of instant matter are that appellants Din Muhammad and another obtained Mutation Entry No,4104, dated 15th October, 1973 in respect of land measuring 2 Kanals Khatha No,28/28, rectangle No,637 Killa No,5, Mauza Gunjial District Khushab (hereinafter referred to as the "suit land") for sale consideration of Rs,2,600. The respondent Subedar Muhammad Zaman son of Sultan instituted a suit for possession through right of pre- emption in respect of the suit land claiming that he has superior right of pre-emption on account of being a collateral of the vendor. Price of sale consideration was also disputed to be Rs,2,000 and not Rs,2,600.
3. Appellants contested suit inter alia raising preliminary objection to its maintainability as being barred by limitation in view of explanation that they had taken possession of suit land three years before attestation of the sale mutation and constructed residential house thereon for which they had spent considerable amount. The right of respondent to pre-empt the land was also denied and it was reiterated that the sale price was Rs,2,600.
4. The respondent filed replication to the written statement reiterating that sale had taken place on 15-10-1973 as is reflected in the mutation Order No,4104 attested on 15th October, 1973 whereas the suit was filed on 24th September, 1974, therefore, it is within time.
5. Learned trial Court struck as many as 9 issues including the one whether the suit is barred by limitation. Plaintiff/respondent led evidence of P.W. Rub Nawab son of Muhammad Hayat, Muhammad Zaman, (plaintiff), Faiz Muhammad Patwari, Abdul Ghafoor son of Sher Muhammad.
On the other hand appellants produced Haji Ahmad Yar son of Haji Ghulam Muhammad, Atta Muhammad son of Fateh Muhammad, Noor Muhammad Naqsha Navees, Din Muhammad appellant (defendant) (examined twice on 2nd June, 1975 and 17th June, 1978), Suleman son of Zaman, Alim Din son of Yar Muhammad, Alam Sher son of Khuda Yar, Noor Muhammad son of Ahmed Mian.
6. Respondent-plaintiff produced documentary evidence as well including (i) Mutation Entry (Exh.P.4) (ii) Roznamcha Waqyati. Mahal for year 1973-74, (Exh.P.5) whereas appellants produced documentary evidence including Khasra Girdawari Exh.D.2. Learned Civil Judge First Class/trial Court dismissed the suit of respondent vide Order/decree, dated March 15, 1979. However, in appeal the Court of District Judge, Khushab accepted the appeal, as a consequence whereof decree was passed in favour of respondent on 17th October, 1982. Against appellate order revision was filed by the appellants before Lahore High Court which was dismissed on 14th September, 1993 vide impugned judgment.
7. Leave to appeal was granted on 2nd April, 1995 to examine following contentions put forth by learned counsel for appellants:- "4. The land in dispute is part of Khasra No,637/5. Prior to 30-2-1970 the whole khasra had been described as agricultural land. However, from Rabi 1970 a part of it has been described as site of a house. The petitioner examined a number of witnesses to show that the house was constructed by him. The oral evidence when read with the entries in the Khasra Girdawari does prima facie lend some support to the claim of the petitioner that he had purchased the land in 1970, that is, about three years prior to the attestation of the mutation and taken physical possession thereof. That being so, his contention that the respondent's suit was barred by time requires consideration.
Leave to appeal is accordingly granted."
8. It is argued by learned counsel for the appellants that respondent (plaintiff) through his evidence has admitted that appellants (defendants) were in possession of the suit land prior to attestation of mutation entry, dated 15th October, 1973 as licensees on behalf of vendor. He further stated that contrary to the stand of the respondent it has been established on record through trustworthy evidence by appellants that they were in possession of the suit land in their own rights and to substantiate this fact they have produced on record documentary evidence i.e, Khasra Girdawari Exh.D.2 and if the oral evidence led by the appellants is read in conjunction with the documentary evidence in its real perspective no other conclusion can be drawn except that the appellants were in possession of the suit land to the notice of the respondent in their own rights but learned High Court had not appreciated this fact properly.
9. On the other hand learned counsel for respondent stated that as per contents of Roznamcha Waqyati (Exh.P.5) Muhammad Yar vendor sold the, suit land to appellants on 15th October, 1973 vide Integal No,4104 (Exh.P.4), therefore, the suit was filed within time from the date of attestation of mutation entries. He further contended that oral evidence produced by appellants suffers from material contradiction, as such rightly disbelieved by the District Judge as well as High Court.
10. As per section 30 of the Punjab Pre-emption Act, 1991, (hereinafter referred to as the "Act") period of limitation has been prescribed in the following manner:-- "30. Limitation.--The period of limitation for a suit to enforce a right of pre-emption under this Act shall be four months from the date --
(a) of the registration of the sale-deed;
(b) of the attestation of the mutation, if the sale is made otherwise than through a registered sale- deed;
(c) on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale deed or a mutation; or
(d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph
(b) or paragraph (c)."
' As far as instant case is concerned it is not covered by category (a) because admittedly there is no registration of the sale-deed; whereas claim of the appellants is that they took over possession of the suit .Property much prior to attestation of Mutation No,4104, dated 15th October, 1973, as such, their case is covered by category (c). The respondent has emphasized in the plaint that knowledge was acquired by him when mutation was attested, therefore, he has instituted the suit within stipulated period as per category (b) of the above provision. It is an undisputed fact that in the plaint respondent had not disclosed that appellants were in physical possession of the property but when he produced evidence, a clear departure was made from the stand taken in the plaint by pleading that appellants were in possession of the property as licensees on behalf of vendor and subsequently they entered into a sale transaction to purchase the property which was in their possession, as such no sooner they got attested mutation entry he instituted the suit to enforce his right of pre-emption within stipulated period.
In this context first of all it is to be observed that respondent/plaintiff cannot be conveniently allowed to make departure from his stand taken by him in the plaint because as per law of pleadings i.e, under Order VI, rule 7, C.P.C. Departure from pleadings is subject to amendment, if so desired by the plaintiff, with the permission of the Court. As such without seeking amendment by the respondent from the Court, he cannot be allowed to set up a new case for obtaining relief as prayed for Contrary to the stand of respondent in plaint, appellants at the time of filing written statement had categorically pleaded that they are in possession of suit property much prior to the attestation of mutation entry in their favor and they restricted themselves to it till the last.
Inasmuch as when evidence was led by them, they endeavoured to establish that their possession on the suit land was, as of owners much prior to attestation of mutation entries in their favor, as they had been utilizing the same. Therefore, the stand of the appellants' prima facie even without discussing the evidence available on record is considered consistent.
11. Be that as it may, the onus to prove that the suit was within time as upon the respondent/plaintiff who approach the Court for a decree in his favor, as it has been held in AIR (34) 1947 Lahore 322.
Relevant portion from the judgment is reproduced here below for sake of convenience:-- ' "the burden lay heavily on the plaintiff to show how he brought a suit within time, either under Article 10 of Limitation Act, 1908 or under section 30 of the Punjab Pre-emption Act, 1913."
' The respondent had reckoned the period of limitation from the date of attestation of mutation entry in favour of appellants; whereas appellants case is that limitation will run against them from the date when they took over physical possession of the suit property. The respondent/plaintiff mainly relied upon Mutation No,4104 dated 15-10-1973 (Exh.P.4) and Roznamcha Waqyati, dated 28th September, 1973 (Exh.P.5. Learned Judge in Chambers of High Court has mainly taken into consideration both these documents to conclude that the suit filed by respondent was within time.
It seems that learned Judge was mainly impressed by the word used in Roznamcha Waqati, "Imroz" {{URDU TEXT}} and had construed that as this report was given by the vendor Muhammad Yar son of Lal on 28th September, 1973, therefore, it means that the sale had taken place on that very day.
But the word Imroz has not been considered/read conjunctively with the remaining portion of the statement because perusal whereof indicates that on the said date i.e, 28th September, 1973 he appeared before Revenue Officer and stated that he had sold his property to appellants Din Muhammad and Amir Abdullah sons of Said Muhammad, Caste Darkhan. This statement does not contain the word as to when the property was sold by him to the appellants. Merely mentioning the word, today, would not be sufficient to conclude that the sale had taken place on that very day because in such-like situation language probably should have been that he has sold his property to appellant on that very day when he appeared before the Revenue Authorities for making statement. It is also to be noted that in 'Mutation Entry No,4104 Exh.P.4 it has also not been stated that the transaction of sale took place on the day when entry/report was made in Roznamcha Waqyati. Therefore, in our opinion the entries both in Exh.P.4 and Exh.P.5 have not been correctly interpreted in order to draw inference that what was the date when the property was sold to appellants by vendor Muhammad Yar son of Lal. The respondent/plaintiff to discharge the onus also placed reliance on the oral evidence led by him. In this regard statement of Subedar Muhammad Zaman plaintiff may be referred who in unequivocal terms admitted that prior to sale a Kotha was existing in which the appellants were residing. He further states that prior to attestation of mutation, appellants were occupying the land with the permission as licensees, where they were running the business of carpenter. In view of such statement of respondent no doubt is left to infer that it was in the knowledge of respondent that appellants were in occupation of the property. Thus, it is a strong reason to believe that the respondent. To provide a justification that his suit is within time had taken this afterthought plea but its benefit cannot be extended to him because an obligation was upon him to have first of all averred in the plaint that appellants were in possession of the suit property as licensees of Muhammad Yar Son of Lal. Non-disclosing this important fact by him leads us to draw presumption against him that he concealed this important fact intentionally because if he would have himself admitted that prior to institution of the suit appellants had constructed a room (Kotha) on the suit property then the appellants in written statement may have offered better explanation about raising the construction of room to justify their possession as owners and they had also defended the suit of respondent in a more befitting manner. Thus, in view of this factual position, if the documents heavily relied upon by respondent i.e, Exh.P.4 and Exh.P.5 as well as the oral statement made by him is kept out of consideration, it can be safely concluded that respondent had failed to discharge the burden to establish that the suit is within time. Contrary to the evidence led by respondent, appellants evidence qua pleading appears to be more consistent, coherent and confidence inspiring. As it has been observed hereinabove that from the very beginning their case is that they were in possession of the property in their own rights, and respondent had also not disputed this position. It would mean that he himself was aware about the status of appellants to remain in possession of the property namely that they had not only occupied the suit land but had also raised construction on it. It may be noted that raising of the construction is not possible unless they have attained the right of ownership or they had obtained permission from the owner. So far their stand is concerned they claim their possession as owners but the respondent firstly concealed the fact of their possession in the plaint but subsequently in his statement he accepted that they are in possession of the property as licensees but he failed to substantiate this plea by producing trustworthy evidence. At this juncture reference to Khasra Girdawari Exh.D.2 may not be out of context because its perusal reveals that both the appellants have been shown in possession of the property at least from October, 1970 onward and they had raised construction on it. Contents of this documents also get corroboration from the oral testimony of appellants as well as three witnesses produced by them before the trial Court namely Haji Ahmad (D.W.1), Atta Muhammad (D.W.2) and Din Muhammad (D.W.3) but their statements have not been believed as per observations made in the impugned judgment by the High Court without assigning cogent reasons. It is also important to note that the assertions made by these witnesses in their examination-in-chief that appellants were in possession of the property much prior to the filing of suit has not been challenged in cross- examination, therefore, their statements stand prove to the extent of establishing that the appellants were in possession in their own rights as owners of the suit property to the notice and knowledge of the respondent but he did not file the suit within the prescribed period despite acquiring clear knowledge about it.
' Mr. S.M. Tayyab, learned counsel for appellants stated that as appellants were in possession of the property as owners, therefore, attestation of mutation entry Exh.P.4 in their favour on 15th October, 1973 would not bring the suit of respondent within time. In support he placed reliance on the case of Sher Muhammad v. Rajada and another (PLD 1981 S.C. 591). As per facts of this case possession of the property was handed over under the sale as back as in 1951 but mutation entry was attested subsequently, therefore, within this background it was held that the sale was concluded in 1951 when under the sale the possession was delivered to vendees and they came to be recorded as in possession under the sale. It then became a preemptible transaction and the mere non- attestation of the mutation as such could not postpone the effect of the sale or entitle the pre- emptor to an enlargement of the time, for the infirmity did not attach to the sale as such but to the incidence of Agricultural Income-tax Act and its payment alone. Where possession had been so obtained and there is a public notice of it in the manner in which it has taken place in this case the limitation would start from the date the vendees came into possession of the land and the suit was evidently beyond time.
' Learned counsel also placed reliance on the case of Allah Yar and another v. Raja and another (1989 SCM R 802). In this case as well question for consideration was as to whether' suit for pre- emption was within time. Similar facts of this judgment with the case hand are that there too, possession was delivered prior to attestation of mutation and when mutation was attested vendor Ghulam Rasool appeared and stated that he had sold his property to Allahyar and others vendees.
This Court considering his statement alongwith report of Patwari, and the fact during course of cross-examination nothing could be extracted from his statement, held that prior to attestion of mutation entry as the possession of the suit land was with the vendee, therefore, the suit is barred by time. As we have observed hereinabove that in the instant cae as well prior to attestation of mutation entry Exh. P/4 and Roznamcha Waqyati Exh.P/15, entry in respect of the possession of appellants had been made in Exh.D/2 (Khasra Girdawari) and as discussed hereinabove the possession of the 'appellants had not been denied, therefore, applying the principle laid down in the reported judgment, we feel no hesitation in concluding that appellants had acquired possession of the property as back as in the year 1970 when in Khasra Girdawari they were shown to be occupants of the property. Therefore, the suit filed by respondent after attestation of mutation entry was obviously barred by time.
' Learned counsel for respondent has also relied on 80 PR (1918) (Civil Judgments) page 269. In this judgment it was held that possession referred to in Article 10 of the Limitation Act must be possession under the sale sought to be impeached and such possession could only be taken in this case from 21st December, 1914 the date of the deed of sale, and it was held that suit was not barred by time. In our opinion the judgment is distinguishable from the facts of the instant case because as per admission of respondent, appellants were in possession of the property and they have raised katcha construction of Kohta over the same. But this fact has been concealed in the plaint as discussed hereinabove, therefore, inference would be that respondent had the knowledge that possession of appellants was under sale but intentionally correct facts were not disclosed to bring his suit within time. Learned counsel also relied on AIR 1923 Lahore 654, AIR 1924 Lahore 394 and PLD 1981 Lahore 502. But these cases are distinguishable on facts in view of the discussion made hereinabove.
For the foregoing reasons, the appeal is allowed, impugned judgments, dated 14th September, 1993 passed by Lahore High Court, Lahore and District Judge Khushab, dated 17th October, 1982 are set aside; consequently order/decree of trial Court, dated 15th March, 1979 is maintained.. However, the parties are left to bear their own costs.