MUHAMMAD HASSAN Versus LIAQAT ALI KHAN

The appellants purchased the suit‑land for a consideration of Rs.14,000 vide Mutation No.1566 attested on 11‑3‑1972. The respondent claiming to be the son of the vendor Mst. Naziran filed a suit on 9‑3‑1973 seeking possession of the suit‑land by pre‑emption. The suit was resisted by the appellants inter alia on the ground that it was barred by time as according to the appellants the price had been paid and possession delivered to them on 5‑3‑1972 when the mutation was entered. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree, dated 5‑5‑1976. A first appeal filed by the respondent was heard by a learned Additional District Judge, Kasur who allowed the same and decreed the suit on 10‑6‑1977. The appellants filed R.S.A. No.455 of 1977 in this Court which was allowed on 25‑10‑1978. The respondent filed Civil Appeal No.136 of 1979 which was allowed by the Supreme Court of Pakistan on 22‑11‑1983 and the case was remanded to the learned District Judge to decide the appeal without being influenced by the observations of this Court. Somewhere the records were lost and were reconstructed. The first appeal was then heard on the basis of reconstructed record by the learned District Judge. Kasur who allowed the appeal and decreed the suit on 23‑7‑1987.

2. Learned counsel contends that the evidence on record has beer misread by the learned District Judge while reversing the findings of the learned trial Court on the question of limitation. No one has turned up fog the respondent although he has been issued registered P.C. notice for today.

3. I have gone through the record of this case. The plea stand specifically taken in the written statement that the sale price was paid on 5‑3‑1972 and possession was taken over. In the rejoinder/replication the appellants stated that on 5‑3‑1972 only sale agreement had taken place while the sale was completed on 11‑3‑1972 and only Rs.10,000 were fixed and I paid as consideration. Issue No.1 was framed in the following terms:‑‑

(1) Whether the suit is barred by limitation? OPD

The appellants produced Ranjha, D.W.1, Nizam D.W.2 Suraj Mal, D.W.3 and himself appeared as D.W.4. Out of this evidence only the statements of Nizam and Suraj Mal and defendants/appellants could be retrieved. Nizam has stated that the bargain was settled at Rs.14,000 which were paid and possession was delivered and mutation was got entered with the Patwari. Not a single question was put to the witnesses in cross‑examination (available at page 34 of the learned trial Court's reconstructed file). Suraj Mal had opted to remain silent on the question of possession. Muhammad Hussain, appellant has stated as D.W.4 that Rs.14,000 were paid to the respondent and on the same date the possession was obtained and the mutation was got entered. I find that what to speak of cross‑examination even suggestion has not been given to the appellant that possession was not delivered as stated by the appellant. Needless to refer to the settled legal position that where a portion of statement of a witness is not challenged in cross‑examination, then it shall be deemed that, the party against whom the evidence is being given accepts the same.

4. Coming to the rebuttal, if it can be called that, only Liaqat Ali, respondent had entered the witness‑box as P.W.1. In his examination‑in chief he has not said a word about the possession. In his cross‑examination he makes the following admissions:‑‑

Since in his statement the respondent has not opted to define the (WAKT-E-BAI) we have only the version of the appellants that the sale had been completed on 5‑3‑1972 when price was paid arid possession was taken over.

5. Thus the appellant not only was successful in proving the duly pleaded case and thus discharging the onus of the said Issue No.1 but his evidence went unrebutted. On the other hand, it stood admitted by the respondent that the possession was taken by the appellant as he claims.

6. I may here refer to another interesting aspect of the case. The learned District Judge has proceeded to widen the scope of the issue and the question involved in the controversy by stating that it was the burden of the appellant that he had taken the possession and that he had so taken the possession to the notice and knowledge of the respondent. I wonder as to on what basis the learned District Judge has made the said statement of law and I particularly wonder as to who made the grievance before the learned District Judge about the absence of knowledge The replication of the respondent and his statement as P.W.1 do not at all spell out a case of lack of knowledge. I do not find any complaint in the pleadings or the evidence of absence of notice regarding possession. The learned District Judge, I am constrained to say has deliberately misread the evidence on record.

7. As a result of the above discussion this R.S.A. is allowed. The judgment and decree dated 23‑7‑198 7 of learned District Judge, Kasur are set aside while that dated 5‑5‑1976 passed by the learned trial Court dismissing the suit of the respondent are restored leaving the parties to bear their own costs.

H.B.T./M534/L Appeal allowed.