AHMAD KHAN Versus Mst. IRSHAD BEGUM

MIAN SAQIB NISAR, J.-- -The suet for the pre-emption, filed by the respondents predecessor Sheikh Manzoor Ahmed, was decreed by the learned trial Court vide judgment and decree, dated 31-7-1980; the appeal of the petitioner has finally failed on 27-3-2001.

2. Brief facts of the case as put forth by the petitioner's counsel today in the Court are that his client had purchased the suit-land measuring 52 Kanals, fully described in the plaint, in the year, 1969-70, from Gulla and Shera through an oral sale; he paid the total consideration of sale and was put in the physical possession of the suit property. Subsequently, the petitioner filed a suit for the declaration seeking the ownership of the property, in which Gulla and Shera, appeared and made a consenting statement, thus a consent decree, dated 26-5-1971 was passed and on the basis of this decree, the mutation of sale was attested in favour of the petitioner on 19-6-1973; Sheikh Manzoor Ahmed, the predecessor in interest of Respondents Nos.1 to 8, on 15-6-1974, filed a suit for the pre-emption against the petitioner, claiming the superior right of the pre-emption; the petitioner contested the suit, disputed the superior right of the pre-emption of the plaintiff and also took up the plea of the limitation, accordingly, issues were framed; parties were put to trial and the learned Civil Judge, vide judgment and decree, dated 31-7-1980, by returning his finding in favour of the respondent/plaintiff on the issue of the superior right and that of the limitation, against the petitioner, has decreed the suit; the appeal of the petitioner has also failed.

3. Today, the learned counsel for the petitioner, has not challenged the findings of the two Courts below regarding the superior right of the respondent/plaintiff, rather has only confined to the point of the limitation and has argued that the present case is covered by the provisions of Article 10 of the Limitation Act, 1993, as the petitioner had taken over the physical possession of the suit property under the sale in the year, 1969-70, when it was made, therefore, the limitation would run from 1969-70 and not from the date of the attestation of the mutation i.e. 19-6-1973. In support of his contentions, he has placed reliance upon the judgments reported as Rchmat Ali v. Mst. Allah Wasai and others (PLD 1992 Lahore 228), Muhammad Malik v. Mst. Razia Begum and others (PLD 1988 Lahore 45), Muhammad v. Allah Ditta (1990 CLC 765), Jangi v. Jhanda and others (PLD 1961 (W.P.) B.J. 34), K.S. Haji Ghulam Sarwar Khali v. Maulvi Abdul Hamid and others (PLD 1960 (W.P.) Peshawar 32), Allah Yar and another v. Raja and others (1989 SCMR 802), and Khurshid Ahmad and 4 others v. Syed Akhtar Hussain Gilani and 4 others (PLD 1991 SC 1070).

4. Learned counsel for the respondents has no cudgel with the above stated legal proposition, but states that there is no averment in the written statement that the physical possession of the property was taken over by the petitioner under the sale in the year, 1969-70; moreover, this fact has been proved through the documentary evidence; (it is for this reason that no issue about the change of the possession has been framed by the learned trial Court); the statement of Gulla, one of the vendors of the property cannot be accepted as worthy of belief because he is unable to answer many material questions in the cross-examination, and has deposed contrary to the facts of the ease; he also is the close relative of petitioner. It is also submitted that the petitioner has not produced the Khasra girdawaris to establish that the physical possession was taken over by him under the sale; neither the exact date, day, month or year of the alleged oral sale has been stated the written statement nor proved on the record through any positive evidence.

5. Heard. In the written statement, the petitioner has not averred that any oral sale was made in his favour in the year, 1969-70 and the physical possession of the suit property was delivered to him under the sale at that time. It is vaguely stated in the preliminary objections of the written statement, that the suit is barred by time, without explicitly mentioning the factum of obtaining the physical possession of the property, so as to attract the provisions of Article 10 of the Limitation Act, 1908. Not only that neither in the written statement nor through the evidence, it has been proved the exact day, date, month or even the yeas when such oral sale took place and the possession was allegedly delivered to the petitioner.. It is settled law that no one can travel beyond the scope of his pleadings and lead evidence about the facts not set out in the plaint or the written statement. Though the petitioner has taken the objection of limitation, as preliminary objection, but in my view, without ? asserting and averring about the oral sale .and the delivery of physical possession thereunder, the petitioner could not lead evidence in this regard. The vague defence of limitation did not enable him to prove a case, which was not propounded in defence by giving adequate particulars. Moreover, Gulla, 'D.W.3, one of the vendors, in hi statement has not given the exact day, date, month or the year of the sale but only mentioned it to be 9-1/2 years ago; he in his statement has also admitted that he is the cousin of the vendee; strangely in the cross examination, he stated that he does not know, as to when Ahmed Khan, petitioner, filed the suit against him whether, it was 20 year; ago or 40 years; further he in reply to a question has deposed that at the time of the sale, the land was being cultivated by him and thereafter stated:--

There are inconsistencies in his statement, which goes to show that he was deliberately trying to misstate the facts. D.W.4, Zahoor has also failed to mention the requisite particulars of the alleged oral sale and most importantly that he was present at that time; he has vaguely mentioned that since the date of the sale, the petitioner is in possession of the property and the sale was made about 9-1/2 years ago; D.W.7 is the statement of Ahmed Khan and he deposed in the examination-in-chief that the sale was made 9 years ago. It may be pertinent to state here that the statement of all the petitioner's witnesses was recorded on 12-5-1979 and there is visible confrontation about the time of sale in these statements.

6. From the quality of the above oral evidence, it is not proved on the record that the change of physical possession took place under an oral sale prior to the mutation, which could put the respondents to a notice that the ownership of the property has changed, so that they could avail their remedy of pre-empting such sale within the period prescribed by Article 10. It' the petitioner was in cultivating possession of the suit-land, as alleged, he could have easily produce in defence the khasra girdawaris to show the change of the possession and the cultivation by him.

7. Learned counsel for the petitioner, has laid much emphasis on Exh.D-4, the consent decree for the declaration passed in favour of the petitioner and against Gulla and Shera, in which, he was declared to be the owner in possession, suffice it to say that the present respondents B were not party to that decree and such is not binding upon them. Even otherwise, because of the close relationship between the vendors and the vendee and admission made by the vendors in that suit, on the face of it, seems to be the result of a collusion and an abortive attempt to prevent the pre-emption action; moreover this consent decree was passed on 26-5-1971, whereas the mutation of sale was sanctioned on 19-6-1973 and it is not proved by the petitioner, if this decree was within the knowledge of the respondents, enabling them to initiate pre-emption action.

8. The other argument that the statements of D.W.3 and D.W.4, about the change of the possession, has not been subjected to the cross-examination, suffice it to say that the material particulars about the oral sale and the change of the possession, have not been given by them, they even have not stated, if they were present at the requisite occasion of the sale or the delivery of possession. Therefore, taken their examinations-in-chief alone would not positively prove about the two disputed factums. Besides, I am not convinced, that the cross-examination lacks in this behalf. If the argument of the petitioner's counsel is that no suggestion has been given to them, in my view, this was not required in the light of the cross-examination, which was conducted upon them.

In view of what has been discussed above, I am of the view that the petitioner has failed to prove either the oral sale allegedly made in 1969-70 or his taking over the physical possession under the sale at that time, resultantly, the suit brought by the respondents within one year from the date of the mutation was well within time and the findings of the Courts below though brief and not based upon much discussion of the evidence, are right and sustainable on the basis of the reasons given in this judgment.

In the light of above, this petition has no merits and the same is hereby dismissed.

F.B./A-200/L ?????????????????????????????????????????????????? ??????????????????????????????????? Petition dismissed.