MUHAMMAD RAMZAN Versus ABDUL SALAM

ORDER

ALI HUSSAIN QAZILBASH, J .‑‑This is a petition for leave to appeal against the judgment of a learned Single Judge of the Lahore High Court, dated 22‑3‑1988.

2. The facts are that the petitioner purchased land measuring 4 kanals 7 marlas situate in Mauza Yarukhel Pakka, Tehsil and District Mianwali, through a registered sale‑deed on 20‑12‑1975. Before the registration of the sale‑deed the petitioner was delivered possession of the suit land on the receipt of the sale consideration of Rs.19,500 in Kharif 1974. Two suits by the two respondents, who are brothers inter se, were filed in the Court of the Civil Judge, 1st Class, Mianwali, for possession of the suit land through pre‑emption. Abdul Salam (respondent No.1) filed the suit on 15‑11‑1975 i.e., before the registration of the sale‑deed, whereas Abdul Malik, the second respondent, filed the suit on 20‑12‑1976. On the pleadings of the parties the learned trial Court framed as many as nine issues and after recording the necessary evidence, vide its judgment dated 5‑10‑1978, decreed the suits of respondents Nos.l and 2 in equal shares on payment of a sum of Rs.19,500. The appeals filed by the petitioner before the learned District Judge, Mianwali, were dismissed on 7‑4‑1980. The petitioner then approached the High Court through two Regular Second Appeals bearing Nos. 368 and 665 of 1980 challenging the judgment and decree passed by the learned District Judge. It was during the proceedings in the two appeals when the learned Judge of the High Court framed an additional issue on 10‑2‑1988 which is as under:

"Whether the suits of Abdul Salam and Abdul Malik are time barred?"

Presently we are concerned with this issue only. '

3. The learned Judge of the High Court while dealing with the above issue held the suits of the respondents as not barred by time with the following observations:‑

"Although his plea of tenancy was not proved from the record and he did not even press the same at any stage and even as D.W.5 yet for the purpose of physical possession as an owner it will be taken that his possession under the sale commenced from the date when the sale was completed. The evidence of Ghulam Muhammad P.W.1, Abdul Salam P.W.2, Ameer Hussain D.W.3 who admittedly was a tenant in the land in dispute, read with Khasra Girdawari Exh.P.3 shows that the appellant is in continuous possession of the land in dispute since Kharif, 1974 and there is no denial of this fact. If at the time of delivery of possession to the appellant whole of the price had been paid to the vendor and had it been agreed that it will be an oral and not a sale through a registered sale‑deed the limitation would have run from the date of his possession. But, as already said, the appellant was never in possession of the suit land under the sale before the sale‑deed was registered. So is claimed by him in the said two written statements filed by him. He stated that he had purchased the land for Rs.19,500 through registered sale‑deed on 20‑12‑1975. Therefore, it does not lie in his mouth now to say that he came into possession of the land under the sale prior to the said date. Therefore, the point of possession also does not help the case of the appellant."

4. Mr. Muhammad Hanif Niazi, learned counsel for the petitioner, has vehemently contended that the above finding of the learned Single Judge is palpably wrong. He drew our attention to the sale‑deed executed by the vendor in favour of the petitioner and registered on 17‑12‑1975, wherein it has been admitted by the executant (vendor) that:

He further took us through the Khasra Girdawaris EXhS.P.l to P.3 wherein the petitioner has been shown to be in possession of the suit land since Kharif 1974 and through the statements of Ghulam Muhammad P.W.1, Ghulam Jilani D.W.4, who is father of the pre emptors/respondents, and Muhammad Ramzan petitioner and submitted that all the above evidence has established beyond any shadow of doubt that the petitioner had obtained the possession of the suit land under the oral sale and thus the suits are barred by time.

5. After considering the arguments of the learned counsel for the petitioner in the light of the record we think he has been able to make out a case for further examination. Leave is, therefore, granted on the present record with the direction to file all necessary documents by both the parties. Security Rs.5,000. Status quo to be maintained subject to the payment by the petitioner half of the produce to the respondent without prejudice to the case of either party.

M.I./M‑531/S Leave granted.