MUHAMMAD ASLAM vs KHUDA DAD

SHAFI-UR-REHMAN, J.--These two civil appeals arise out of two pre--emption suits, the vendor, the vendee and the pre-emptor being the same, the transactions of sale are different, raising a common question of law, namely, whether the suits instituted were within time.

2. In Civil Appeal No. 87/74, Muhammad Sharif, the vendor and Khudadad, the vendee went to the village Patwari on 11-2-1967 and reported the sale of land measuring 2 kanals 19 marlas bearing Khasra-No. 5179/932 in village Kharoka, Tehsil Jhelum for a sum of Rs. 5,000. A mutation was entered the same day, but was checked on 16-2-1969. It was attested in the presence of the vendor and the vendee on 13-3-1969. The appellant Muhammad Aslam filed the suit on 14-3-1970 claiming the land on payment of Rs. 1,475 only.

3. In Civil Appeal No. 88/74 Muhammad Sharif reported on 12-3-1969 the sale of 1 kanal 10 marlas land bearing Khasra No. 5181/933 in the same village for a sum of Rs. 5,000. The mutation was checked by the Girdawar on 13-3-1969 and on the same day it was attested. Muhammad Aslam filed the civil shit on 14-3-1970 pre-empting this sale claiming the land on payment of Rs. 750.

4. A number of issues were framed on the pleadings of the parties but the one now requiring determination is whether the suit is barred by limitation in view of the preliminary objection. The case of the vendee was that he had obtained possession of the land even before the sale was reported to the Patwari and the mutation was attested. The trial Court found with regard to the mutation entered on 11-2-1967 that it could not have remained pending so long for attestation and the likelihood was that it was entered alongwith the other sale mutations in the year 1969. It was further found that as the land in dispute was shown to be in possession of tenant-at-will it was not possible, in the absence of the statement of that tenant-at-will to admit readily his ouster and substitution by vendee. Entry in the Khasra Girdawari made by the Girdawar in Rabi 1968 showing that the vendee had taken possession under the sale was rejected on the ground that the Patwari had stated that no such entry was made by him as long as Khasra Girdawari remained in his charge. Hence giving a finding on this issue against the vendee and finding the other issues in favour of the plaintiff-respondent, except that of price of the land the two suits were decreed.

5. The District Judge while deciding the vendee's appeals against the judgment and decree reversed the finding of fact holding that there was evidence which showed that possession under the sale had been obtained more than a year before the institution of the suit. The suits were therefore held to be time-barred. The appeals were accepted and the two suits were dismissed.

6. The effort of the appellant purchaser to assail the judgment of the District Judge in second appeals failed in the High Court on 15-11-1973.

7. Leave was granted by this Court in these two appeals to examine whether the entries of Khasra Girdawari, so made by the Girdawar Kanungo could have presumption of truth.

8. The question as to when the vendee had come into possession of the land under the sale was and continues to be a question of fact. The entries of the Khasra Girdawari which were made use of by the District Judge in recording this finding of fact did show in respect of both the disputed Khasras that the vendee Khudadad had come into possession of the land as a purchaser and was in its possession as owner on 8-4-1968. This entry was made by the Girdawar on his usual checking which took place on 8-4-1968. A copy of the Khasra Girdawari was placed on record and admitted in evidence without any objection with regard to its proof or admissibility by the appellant.

Notwithstanding the fact that the Khasra Girdawari remains in the custody of the Patwari who is supposed to make the initial entries with regard to cultivation, crop, tenure, etc. The Qanungo has a duty to perform, and it is one of supervising and verification of those entries with a view to ensure their correctness. If the Girdawar finds the situation on the ground different from what is contained in the notes made by the Patwari, he has the authority to make correct entry and to direct consequential action. He performed exactly this duty in these cases. The Patwari was directed to enter the mutation of sale. As the mutation registered could not be made available at that time it could not be verified that at least one mutation had already been entered on 11-2-1967.

9. The learned counsel for the appellants has attempted to demons--trate that the Qanungo in making this entry did not follow the circular reproduced on page 473 of the Land Record Manual published in 1972 which restricted his supervision to the change in cultivation reported by the Patwari. This circular did not in terms apply to the situation now before us because the Patwari had not reported the change, and it was the Girdawar who found during the verification and supper vision that a change had taken place. In a situation like this ordinarily the Patwari should have followed what is provided at page 469 "when no change in the cultivating occupancy has occurred in the Kharif the Patwari should make a stroke of the pen across the oblong space provided for changes in the Khasra from the right hand top corner to the left hand bottom corner, and another diagonal from the left hand top to the right hand bottom corner, if no change has occurred in the Rabi." If according to the Patwari no change had taken place in cultivation in Rabi 1967 he should have put across a diagonal from left hand top to the right hand bottom corner. He did not do so.

The Girdawar on his inspection recorded the change. The District Judge noted that "besides the entries of Khasra Girdawari even in Roznamcha Karguzari there was a note to the effect that the possession had been obtained by the appellant-vendee in Rabi 1968".

10. As regards the presumption of correctness attaching to the entries of the Khasra Girdawari no doubt it is not of the same degree and statutory force as exists for the entries of annual revenue record under section 44 of the Punjab Land Revenue Act or under section 52 of the West Pakistan Land Revenue Act. The fact, however, remains that if the entries of theKhasra Girdawari are shown to have been made by the officials charged with a duty in the matter, in the ordinary course of their business, a presumption of their correctness and regularity will arise under section 114 of the Evidence Act. It was such a presumption which was recognised in Ghulam Hassan and others v.

Sarfaraz Khan (PLD1956SC(Pak.)306), limiting it' to the actual date when Girdawari was done. In the cases before us the Patwari while inspect--ing the crop on 30-3-1968 did not show continuity in possession of the occupant during the preceding Kharif crop. The Girdawar while inspecting the crop and supervising the work of the Patwari on 8-4-1968 supplied the omission by noting change in possession under the sale and gave a not with regard to it in the diary. The presumption so raised with regard to the vendee coming into possession of both the properties on 8-4-1968 when these entries were made remained unrebutted. The District Judge and the High Court were justified in giving effect to it. The pre-emption suits instituted on 14-3-1970 were clearly time-barred. These appeals are, therefore, dismissed with costs.