Babu MUHAMMAD AZAM and others vs MUSHTAQ AHMAD and others

' SHAFIUR RAHMAN, J.--The petitioners who were vendees of village immovable property and defendants in the suit, seek leave to appeal against the judgment of the Lahore High Court, dated 23rd of November, 1988, whereby their revision petition was dismissed and the pre-emption claim made by the respondents and decreed by the two Courts was allowed to stand.

2. The controversy centered round the question of limitation. The petitioners' contention was that the sale was oral and that under the sale, possession had been obtained by the vendees in August, 1979. The suit instituted on 13-12-1980 being after more than one year was barred by time. A document, unregistered in nature, dated 29-1-1980 was placed on record to show that the transaction had been completed five months before the execution of that document. The case of the pre-emptors on the other hand was that the transfer of possession had taken place in or about January when this document was executed but the date of completion of the transaction was collusively shown to be five months earlier to the execution of that document.

3. The trial Court after considering the oral as well as the documentary evidence recorded a finding of fact in the following words:- "The defendants have failed badly to prove that the suit property was transferred to them in August, 1979. The story narrated by the witnesses is fabricated because the vendor came to say Fateha but he started selling his house and after ten minutes he not only took money from the vendee defendants but also the possession of the suit property was transferred to them. It is humanly impossible. Under the Transfer of Property Act read with Limitation Act the time and limitation run from the possession of the suit property which is normally calculated on the basis of registered sale-deed, decree of a civil Court or attestation of mutation. In the present case none of the modes of transfer of property were adopted and a simple unregistered document was prepared between the parties. The vendee defendants should have been vigilant about their rights but they have failed to do so. The vendee defendants have failed to prove that the possession of the suit property was taken in August, 1979 so the issue is decided against the defendants."

' The suit of the pre-emptors was decreed subject to their depositing the balance of the pre- emption money.

4. An appeal was taken to the District Judge who discussed at great length oral and the documentary evidence led before and after the remand of the case earlier and affirmed the finding of the trial Court in the following words:- "It has become very much clear from the narration of the aforesaid piece of evidence produced by the defendants that they could not prove that in fact, they took the possession of the disputed house in August, 1979 in order to defeat the pre-emptor that he had not filed this suit within the period of limitation. It is an admitted position that the transaction of sale was not registered and no mutation was sanctioned. Only the agreement on 29-1-1980 was executed in which it was written that possession had already been delivered to the vendee but nowhere stated as to when. The defendants have failed to prove that the suit of the plaintiff was not within time. I, therefore, uphold the finding of the learned Civil Judge, under this issue."

5. The revision petition was dismissed in limine in the following words:- "On the existing records, it has been rightly held that pre-emption suit was not barred by limitation.

I see no good reason to differ. Except for point of limitation, no other point was urged. Civil revision is without substance. It is dismissed in limine.

6. Maulvi Sirajul Haq, Advocate, the learned counsel for the petitioners contended that the document Exh. D.1, dated 29-1-1980 was admittedly the source of the knowledge of the pre- emptors, of the sale. It mentioned the completion of the sale five months earlier to the execution of the document. The pre-emptors had, therefore, the notice of the starting point of limitation and they could not take the execution of the document itself as the starting point of limitation.

According to the learned counsel, there has been a misreading of the document Exh. D.1 by the District Judge in so far as it has been held that the document does not indicate the date of transfer of possession of the property under the sale. The discrepancies in the oral evidence have been also pointed out to establish that the evidence led by the pre-emptors was more discrepant and untrustworthy. Finally it has been contended that the High Court has invoked an incorrect law for determining the period of limitation in the case.

7. After hearing the learned counsel for the petitioners and going through the record, we find that none of the grounds invoked by the learned counsel for challenging the finding of fact is tenable.

The completion of the entire transaction in August, 1979 without any writing between the parties in the nature of receipt or Memo. Of Transfer of possession coupled with an execution of the document reciting such payment and transfer on 29-1-1980 and promising the registration of the transfer deed, all show that an unusual course was adopted in order to keep away or defeat the pre-emption claims. The unusual and abnormal conduct has been taken note of by the Trial Court and sustained by all the Courts. The legal question as to which period of limitation is attracted to the case is of no avail to the petitioners because they have not been able to satisfy the one year test. The oral evidence with regard to transfer of possession under the sale being unreliable and the document containing an admission by which third parties are not bound, the claim of the plaintiff-pre-emptor was not shown to be barred by time and has rightly been decreed by the Courts.

8. No question of law arises in the case for further examination and leave to appeal is, therefore, refused.

' Leave to .