ALI ZAMAN vs YAQUB
This matter arises from a petition for leave to appeal against the judgment of the Lahore High Court, which upheld a pre-emption decree in favour of the respondent after reversing the trial court's dismissal of the suit on the ground of limitation. The core legal question concerned the correct starting point for the period of limitation in a pre-emption suit where mutation proceedings had been remanded and re-attested. The Supreme Court held that while the date of delivery of possession under a sale can be decisive for limitation—rendering the date of final attestation of mutation insignificant—the petitioner failed to substantiate the factual plea regarding the alleged earlier date of possession. Consequently, the High Court's view that limitation commenced from the date of final attestation of the fresh mutation order was unexceptionable. The key principle laid down is that the limitation period for a pre-emption suit is determined by the actual established date of possession under the sale, failing which it runs from the final attestation of the valid mutation order following remand.
- Does the period of limitation for a pre-emption suit start from the date of the final attestation of a mutation when an earlier mutation order was set aside and remanded?
- Does the date of delivery of possession under a sale override the date of final attestation of mutation for the purpose of computing limitation in a pre-emption suit?
ORDER
1. MUHAMMAD AFZAL ZULLAH, J: --Leave to appeal has -been sought; against the judgment dated 21st June, 1989, of the Lahore High Court whereby; the petitioner's Civil Revision arising out of a pre- emption decree in favour of respondent, was upheld. The suit for pre-emption was dismissed on ground of limitation. The appeal Court reversed the decision of the trial Court. A learned Judge in the High Court on petitioner's Revision found that the period of limitation would start from the date of the final attestation of the mutation of sale---because, earlier wrong order of mutation was set aside and the said case was remanded for fresh decision in accordance with law.
2. Although the learned counsel states that the detailed reasons for remand of the mutation proceedings are not available but the first order passed on 16-9-1974 was set aside and a fresh order of attestation of mutation was passed on 4-2-1976 which held the field throughout. In these circumstances learned counsel contended that the question of limitation should have been decided with preference to the first order dated 16-9-1974 and not the second order dated 4-2- 1976. In this behalf he relied upon Sher Muhammad v Rajada and another (PLD 1981 SC 591).
3. However, after carefully going through the same the learned counsel admitted that the essential ratio in the said case was the delivery of possession under the sale. Accordingly he tried to show that in this case also the date of possession under the sale being 19-5-1974, the suit subsequently filed after the attestation of mutation on 4-2-1976 was time-barred. Learned counsel is right that in case the date of possession under the sale is found or established to be 19-5-1974, the date of final attestation of the mutation would lose significance. But on going through the impugned judgment as also the evidence in this behalf, we find no substance in the argument of the learned counsel on this factual aspect of the case. The lower two appeal Courts also, it seems did not accept the petitioner's plea in this behalf. Otherwise also the view taken by the High Court being unexceptionable, (See Gharib Shah and others v. Zarmar Gul (PLD 1984 SC 188), leave is refused.