This is vendees second appeal in a pre-emption matter. The facts giving rise to the present appeal may briefly be noted.
2. Mst. Zainab Bibi owned land in dispute measuring 161 Kanals, 11 Marlas. She sold it to appellants Nos. 1 to 4 and Allah Ditta respondent No.2. Mutation of sale (No.349) was entered on 3-8-1988. The statement of the parties regarding transfer of possession and passing of sale consideration were recorded on 15-8-1968 and the mutation was attested on 23-2-1969. Respondent No. 1 herein pre- empted the sale on the ground that he was owner of the estate. The suit was filed on 20-2-1970.
3. The suit was contested by the appellants, inter alia, on the ground that it was barred by time, that the appellants and respondent No.2 were also owners of the estate and fad equal right to defend the sale in their favour. Respondent No.2, however, confessed judgment. Necessary issues were framed, the suit was tried and decreed vide judgment dated 9-7-1973. The appellants herein took an appeal before the learned District Court which was dismissed on 16-12-1979.
4. The learned counsel for the appellants has raised two contentions. Firstly, that possession under the sale having been transferred on 15-8-1968, the suit filed on 22-2-1970 was barred by time ands secondly that the appellants had made mutation by way of an oral gift (Exh.D.1) before the institution of the suit, anti, therefore, they could defend the sale in their favour. Also that since the sale was divisible, the appellants could defend the sale in their favour.
5. On the other hand, the learned counsel for the respondents has contended that there was no evidence on the record that actual physical possession was transferred to the appellants on 15-8- 1968. He next contended that the mutation of gift (Exh.D.1) being relied upon was attested on 27-5- 1970, while the suit has already been filed on 20-2-1970 and that Allah Ditta, one of the donees has clearly disowned any gift made by Mukhtar Ahmad, the donor.
6. I have considered the submissions made by the learned counsel for the parties. As far as question of limitation is concerned, except the recital in the disputed mutation of sale (Exh.P.1) there is no other evidence on the record that actual physical possession was transferred to the vendees- --appellants. Khasra Girdawari for Kharif 1968 which was relevant to establish this contention was not even produced by the appellants. Mukhtar Ahmed, appeared as attorney of the vendees but did not even claim that before possession was transferred to the vendees on 15-8-1968. Therefore, the contention of the learned counsel has no merit that the suit was barred by time.
7. As far as mutation of gift (Exh.D.l) is concerned, it was entered on 28-2-1969 in favour of the appellants and respondent No.2 but was rejected on 28-6-1969. The appeal of the donees was allowed on 12-5-1970 and the case was remanded to the learned Assistant Collector. The mutation was attested on 27-5-1970. It may be stated that respondent No.2 disowned that any gift was made. The fact remains that this mutation was attested after the institution of the suit. The contention of the learned counsel that even if Allah Ditta had disowned the gift to his favour, it stood established to the extent of the appellants and the transaction being divisible, they could defend the sale in their favour. The question has been determined against the appellants by the learned two Courts on the basis of the judgment of the Hon'ble Supreme Court in Abdullah and 3 others v. Abdul Rahim and others (PLD 1968 SC 140). A perusal of the mutation of sale shows that although the shares of the appellants and respondent No.2 were specified yet the sale consideration was paid in lump sum. Allah Ditta, respondent No.2 appeared as P.W. Had claimed to have paid Rs.5,000, representing the price of his share. The appellants and respondent No.2 had filed separate written---statements but none had so claimed therein. I am not persuaded to hold, merely on the basis of the assertion of respondent No.2 that the sale wasp, divisible. Judgment in the case of Abdullah (supra) was followed in Allah Yar and others v. Ghulam Jeelani and others (1996 SCM R 662).
8. The appeal is, accordingly, dismissed with no order as to costs.