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Civil Revision No. 25 of 1981, decided on 7th July, 1981.

‑‑S. 30 and Civil Procedure Code (V of 1908), S. 115‑Suit for possession through pre‑emption‑ Limitation‑Physical possession of land not banded over to purchaser at time of sale transaction‑ Held, limitation for purpose of pre‑emption will start from date of attestation of mutation.‑[Limitation].

.‑‑S. 115‑Revision‑‑Courts below applying their mind to factual and legal aspect of matter and giving cogent reasons in support of their decision after properly reading evidence‑Case, held, not fit for interference under S. 115, C. P. C.

Hameed Azhar Malik for Petitioners.

This civil revision arises from the judgment and decree of the learned Additional District Judge, Muzaffargarh, whereby he on 2nd November, 1980 had dismissed the appeal of the petitioner against the judgment and decree dated 10th January, 1978 passed by the learned Civil Judge 1st Class, Muzaffargarh, who had decreed the suit for possession through pre‑emption filed by Syed Muhammad Mehdi and Latif Hussain (respondents) against the petitioners/defendants.

2. The facts giving rise to this petition are that Syed Muhammad Mehdi and Latif Hussain as rival pre‑emptors filed suit for possession through pre‑emption in respect of land measuring 9 kanals 7 marlas situated in Chak Rohari, tebsil and district Muzaffargarth sold through mutation No. 180 sanctioned on 21st April, 1974 for a consideration of Rs. 8,000. The pre‑emptors claim their respective preferential right of pre‑emption against the petitioners/defendants.

On 10th January, 1978 the trial Court decree the suit filed by the res pondents against the petitioners in terms of Order XX, rule 14, C.P.C. The suit was decreed in favour of Syed Mehdi respondent No. 1 against payment of Rs. 8,000 and the decretal amount was to be deposited upto 10th February, 1978 failing which his suit shall stand dismissed. In the alterna tive decree in favour of respondent No. 2 for the same amount to be paid till 28th February, 1978 failing his suit, too, shall stand dismissed. The petitioners filed an appeal against the judgment and decree passed by the trial Court which was dismissed by the learned Additional District Judge on 2nd October, 1980 hence this revision petition.

3. The learned trial Court had framed the following issues :‑

(1) Whether both the suits are correctly valued for the purposes of court‑fee and jurisdiction O.P.P.

(2) Whether both the suits are time‑barred OPD

(3) Whether both the suits are for the benefit and at the expense of the vendees O.P.P.

(4) Whether Syed Muhammad Mehdi, the rival pre‑emptor has waived his right O.P.P. ,

(5) Whether both the pre‑emptors have superior right of pre‑emption qua the vendees, if so, what is their position inter se O.P.P.

(6) Whether the ostensible sale price of Rs. 8,000 was fixed in good faith or paid O.P.D.

(7) Market value O.P.P.

(8) Whether the vendees have effected improvements upon the land in suit, if so, to what extent and effect O.P.D.

(9) Relief.

llsstlts Not. 1 and 2 were decided against the petitioners. While deciding issue No. 5, it was held that Syed Muhammad Mehdi respondent No. 1 bad the first preferential right. So far as issues Nos. 6 and 7 are concern ed, sale price mentioned in the mutation was admitted by the pre‑emptors, issues were disposed of accordingly.

4. Learned counsel for the petitioners submits that the suits were clearly barred by time. He explains that the sale was effected on 3rd October, 1972 when this transaction was got entered in the mutation by Hassan Ahmad and Mst. Kaneez the vendors and that the possession was delivered to the petitioners on that date. However, the mutation was sanctioned on 21st September, 1974. Learned counsel submits that the suits having been filed on 20th September, 1975 were thus clearly barred by time. Reliance is placed on the entry in the mutation and khasra girdawari Annex : D‑1.

5. 1 have considered the arguments and have gone through the mutation No. 180 as well as, khasra girdawari Annex. D1. I find that Hassan Ahmad on whose report the transaction of the sale was entered in the mutation in the last column of the document was not produced to. support the entry and the same thus cannot be taken into consideration. Khasra girdawari Annex. D1 shows that in Kharif 1972 and 1973 the and was under cultivation of one Muhammad Ali as a tenant. It appears from the khasra girdawari that on 3rd October, 1972, i.e. Kharif 1972 and Rabi 1973, the suit land being in possession of tenant was not capable of physical possession and that the petitioners were not delivered the physical possession of the suit land, and the limitation would, therefore, start from the date of attestation of the mutation, i.e. 21st September, 1974 and suit having been brought on 20th September, 1975 was well within time.

No other point has been urged by the learned counsel. I find that both the Courts below have applied their minds to the factual and legal B aspect of the matter, given cogent reasons in support of their decisions and have properly read the evidence. It is not a fit case for interference under section 115, C. P. C.

M.Y.H. Petition dismissed

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