FAZAL DAD through L.Rs. Versus MUHAMMAD YOUSUF

FAQIR MUHAMMAD KHOKHAR, J.--- The petitioners seek leave to appeal against judgment, dated 19-3-2001 passed by the Lahore High Court, Rawalpindi Bench in Regular Second Appeal No.825 of 1980.

2. The brief facts of the case are that Fazal Dad (predecessor-in -interest of the petitioners) instituted against the respondents, on 30-10-1976, a suit for possession through pre-emption of Haveli measuring 24 Marlas situated in Abadi Mauza Langah, Tehsil and District Chakwal. It was stated in the plaint that the suit property was owned and possessed by one Khan Bahadur who sold the same in favour of the respondents for a sum of Rs.1,000 about a month earlier to the institution of the suit. Fazal Dad (deceased) claimed his superior right of pre-emption on the grounds, inter alia, of being a cousin, collateral, legal heir of vendor and a co-sharer of the suit property. The Civil Judge, Chakwal struck as many as nine issues on divergent pleadings of the parties including Issue No.1 as to whether the suit was barred by time? OPD. The suit of Fazal Dad (deceased) was decreed by the Civil Judge, Chakwal vide judgment and decree dated 16-10-1977. The first appeal of the respondents was accepted and the suit of the plaintiff Fazal Dad was dismissed by the Additional District Judge, Jhelum by judgment and decree, dated 5-11-1980 on Issue No.1 late Fazal Dad filed Regular Second Appeal No.825 of 1980 which was also dismissed by the impugned judgment dated 19-3-2001 by the Lahore High Court, Rawalpindi Bench. Hence this petition for leave to appeal.

3. The learned counsel for the petitioners argued that the suit was filed almost within one month of acquiring the knowledge of the sale of the suit property. The findings of the Additional Sessions Judge as well as of the High Court were not sustainable at law. It was submitted that the sale of the property was actually made by the vendor Khan Bahadur about one month earlier than the institution of the civil suit when its possession was handed over to the respondents. The learned counsel contended that the suit was within time whether or not the provisions of section 30 of the Punjab Pre-emption Act, 1913 and Article 10 of .the Limitation Act, 1908 were made applicable. The learned counsel placed' reliance on the judgments in the cases of Ganesha v. Sadiq and another AIR 1937 Lah. 97; Legman v. Allah Diwaya and others PLD 1967 Pesh. 166; Ismail and others v. Inayat Ali and others 1989 MLD 3078 (Lahore) and Muhammad Ali and 8 others v. Jam Lalu PLD 1990 Lah. 190.

4. We have heard the learned counsel for the petitioners at length. The documentary evidence Exhs.D.2/1 to D.2/24 produced by the respondents clearly showed that the sale transaction of the suit property with delivery of possession had taken place in favour of the respondents in January, 1961. The D. W.1 Sher Dil respondent, D. W.2 Gulzar and D.W.3 Nawab Khan were consistent in their statements that the -suit property was sold by Khan Bahadur along with delivery of possession to the respondents long before the filing of civil suit by Fazal Dad deceased. Therefore, the statements of P. Ws. regarding some construction having been raised shortly before institution of the civil suit were rightly disbelieved by the First Appellate Court and the Lahore High Court. The findings of fact recorded by both the Courts on Issue No. 1 by appreciating the evidence of the parties do not call for any interference. The provisions of Article 120 of the Limitation Act even if applied would not advance the case of the petitioners. The judgments referred to by the learned counsel are not applicable to the facts and circumstances of the present case. The learned counsel for the petitioners could not point out any misreading or non-reading of material evidence on record. The impugned judgment does not suffer from any error of law or jurisdiction so as to call for any interference by this Court. This is not a fit case for grant of leave to appeal.

5. We do not find any merit in this petition and the same is dismissed accordingly.

S.A.K./F-11/SC Petition dismissed.