Pakistan Case LawMUHAMMAD RAFI through Legal Heirs Versus NAWAB DIN
This petition for leave to appeal arose from a suit for possession through pre-emption filed by the respondent, Nawab Din, regarding a share in a joint Khata. The petitioner, Muhammad Rafi, challenged the suit on the grounds of limitation, arguing that physical possession was delivered on the date of the mutation entry, and contested the respondent's superior right of pre-emption. The core legal questions were whether the suit was time-barred and whether the plaintiff had established a superior right of pre-emption. The Supreme Court held that because the subject matter was a share in a joint Khata, the property was not capable of physical possession at the time of the mutation entry. Consequently, the limitation period commenced from the date of the attestation of the mutation, not the entry date, rendering the suit within time. Furthermore, the Court found the petitioner had failed to challenge the respondent's superior right in the written statement or during cross-examination. The Court affirmed the High Court's judgment, establishing that for joint Khata shares, limitation runs from the mutation's attestation date.
- Does the limitation period for a pre-emption suit involving a share in a joint Khata run from the date of the mutation entry or the date of attestation?
- Is a suit for pre-emption barred by time if filed within one year of the attestation of the mutation for a share in a joint Khata?
- Can a defendant challenge a plaintiff's superior right of pre-emption on appeal if it was not denied in the written statement or during cross-examination?
MUHAMMAD MUNIR KHAN, J---This petition for leave to appeal which is directed against the judgment dated 16-54993 of the Lahore High Court, Lahore, arises from the facts that on 21-2-1975, Nawab Din (respondent) filed a suit for possession through pre-emption of the land measuring 14 Kanals 17 Marlas i,e., 1/2 share of Khewat No, 133, Khatuni No,201, Jaranwala, on the basis of being real brother of the vendor and co-sharer in the Khata, against Muhammad Rafi (predecessor-in- interest of the present petitioners namely, Mst. Nasreen Akhtar and 5 others), in the Court of Civil Judge, Jaranwala. The suit was resisted. Issues were framed. The plaintiff appeared as P.W.2 and produced Abdul Wahab (P.W.1) in support of his case. He also tendered Exh. P-1 (copy of the mutation), Exh.P.2 (copy of the Jamabandi) and Exh. P.3 (copy of the Khasra Girdawari). In rebuttal, Muhammad Rafi (defendant) produced Rehmat Ali (D.W.1), Alauddin (D.W.2), Ahmad Din (D.W.3) and Ramzan (D.W.4). He himself appeared as D.W.5. He also tendered documents Exhs. D.1 to D.7. The Civil Judge dismissed the suit on 21-5-1976. The appeal filed by Nawab Din, respondent/plaintiff was accepted by the learned Additional District Judge, Faisalabad, and the suit of the plaintiff/respondent was decreed subject to the payment of sale price, on 16-1-1978. Feeling aggrieved thereby, Muhammad Rafi/defendant filed an appeal in the Lahore High Court, Lahore which was dismissed on 16-5-1993.
2.Learned counsel for the petitioners has raised the following points before us:--
3.We have carefully attended to the arguments addressed by the learned counsel for the petitioners. We find that the superior right of the petitioners was not specifically denied in the written statement. It was also not denied by Muhammad Rafi/defendant in his statement as D.W.5 Muhammad Rafi, in his examination-in-chief, stated that he was brother of the vendor and also co-sharer in the Khata, but he was not cross-examined on this point. Furthermore, the superior rights of the plaintiff was not challenged by the present petitioners before the High Court.
4.As regards point No, (i), we find that the sale, the subject-matter of the suit for pre-emption, was of a share in the joint Khata. As such, the land was not capable of admitting physical possession on 18-2-1974 when entry with regard to the transaction of sale was made in the mutation. This being the position, the limitation would run from the date of attestation of the mutation i,e., 26-2-1974 and not from 18-2-1974. The submissions made by the learned counsel for the petitioners are devoid of force.
5.We do not see any reasons to interfere with the well-reasoned judgment of the High Court. Accordingly leave to appeal is refused.
Judges on this bench
- Ajmal Mian2,984 judgments
- Muhammad Munir Khan2,344 judgments