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Civil Revision No. 334 of 1981, decided on 25th January, 1983.

-- S. 15-Limitation Act (IX of .1908), Art. 120-Limitation-Pre emptor filing suit within 8 years of sale on plea that he could not gain knowledge of sale Pre-emptor not stating so in his statement before court and record not showing that possession was not taken by vendees-Concurrent findings of courts below dismissing suit on issue of limitation maintained in circumstances of case.

Asif Saeed Khan Khosa for Appellant.

This Civil Revision arises from judgment and decree of the District judge, Muzaffargarb, whereby on 22nd February, 1981, he confirmed the judgment and decree dated 2nd June, 1980 passed by the learned Civil Judge, 2nd Class, Leiah, dismissing the suit for possession by pre emption filed by Ghulam Shabbir, petitioner/plaintiff against Mst. Amir Begum and Mst. Akbari Begum respondents.

2. The facts leading up to this revision in brief are that on 17th October, 1978 Ghulam Shabbir, petitioner, herein, filed a suit for possession by pre-emption against Mst. Amir Begum and Mst. Akbari Begum, respondents. It has been averred in the plaint that the suit land measur ing 4 marlas only was purchased by the respondents for Rs. 99 only from Syed Ghulam Abbas Shah through sale-deed dated 27th December, 1976, that the petitioner being real brother of the vendor, co-sharer in the Khata and Khewat had a superior right of pre-emption against the respondents and that the cause of action arose firstly, from 27th December, 1976, i.e. the date of the sale-deed; and secondly, from 10th April, 1978 when for the first time the petitioner gained knowledge of sale and thirdly, from one month prior to the institution of the suit when the respondents/defendants refused to surrender the land in favour of the petitioner. The rest on dents/defendants contested the suit by raising preliminary objection and denying the averments of plaint. On the pleadings the following issues were framed:-

(1) Whether the plaintiff has superior right of pre-emption qua the vendee/defend ants

(2) Whether the suit is not within time

(3) Whether the plaintiff has waived his right of pre-emption

(4) Whether the suit is correctly valued for the purposes of court-fee and jurisdiction.

(5) Relief.

Issues Nos. 1, 3 and 4 were decided in favour of the petitioner/plaintiff: Issue No. 2 was, however, found against the plaintiff and it was held that the suit was not within time, In view of its finding on issue No. 2 the trial Court dismissed the suit on 2nd June, 1980. Feeling aggrieved the petitioner herein, filed appeal before the learned District Judge, which was dismissed on 22nd February, 1981. Hence this revision.

3. Before me the learned counsel has assailed the concurrent finding of the learned Courts below on issue No. 2 by submitting that the sale having not been effected through mutation of registered sale-deed and the possession also not having been taken under the sale, Article 120 of the Limitation Act was applicable and as such the suit which was filed within 6 years from the sale-deed dated 27th December, 1976 was well within time.

4. After hearing the learned counsel and going through the record I find that according to the plaint Syed Ghulam Abbas Shah sold the suit land to respondent/defendant through sale-deed dated 27th December, 1976 the sale price being less than Rs. 100 the registration of the sale-deed was not legally required and that the ownership stood validly transferred through unregistered sale-deed dated 27th December, 1976. that in para. 6 which pertains to the cause of action the petitioner/ plaintiff has stated, although his case in the plaint was that he acquired knowledge on l0thi April, 1978 yet in his statement he did not state so, that before the Courts below the plea that Article 120 was applicable was not take before, and that there is nothing on the record to show that posses sion was not taken by the respondents/defendants at the time of the execution of the sale-deed." Since it is a suit for possession by pre emption I am not inclined to believe the statement of the petitioner plaintiff that the possession was not delivered to the respondents under the sale.

For all these reasons I do not see any reason to differ from the con current finding of the learned Courts below on issue No. 2.

6. For what has been stated above there is no merit in this revision the same is dismissed in limine.

M. A. K. Petition dismissed.

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