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Civil Petition No. 548 of 1980, heard on 5th March, 1985.

(Against the judgment and order of the Lahore High Court, Lahore, dated 30‑3‑1980 in R.S.A. No. 68 of 1978).

‑‑‑Art. 185(3)‑‑Punjab Pre‑emption Act (I of 1913), S. 30‑‑Suit for pre‑emption‑‑ Limitation‑‑Mutation of sale entered on 20‑1‑1971 and sanctioned on 31‑12‑1975‑‑Sale completed on 27‑12‑1972 after statement of some vendors‑‑Change of possession admitted in statement of vendors/ vendees but not reflected in Khasra Girdawari‑‑Suit for pre‑emption instituted on 2‑1‑1974‑‑Plea that suit being time‑barred or premature, was not competent, not sustained‑‑Plaintiff‑respondent being tenant of portion of suit land, learnt about sale only when vendee demanded share of produce from him‑‑Possession under sale thus not having changed, suit found to be instituted within prescribed period of limitation‑‑Decree upheld in second appeal affirmed‑‑Leave to appeal refused.

Kamal Mustafa Bokhari, Senior Advocate Supreme Court instructed by Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner.

Sh. Izhar‑ul‑Haq, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Respondents.

Date of hearing: 5th March, 1985.

The petitioner who is a defendant vendee in a pre‑emption suit seeks leave to appeal against the judgment of the Lahore High Court, dated 30‑3‑1980 whereby the claim of the plaintiff- respondent was decreed and his objection with regard to the suit being barred by time was rejected by the trial Court which was upheld in the first appeal by, the Additional District Judge and by the High Court in the second appeal.

A mutation of sale was entered in the register of mutations on 20‑1‑1971. The Revenue Officer recorded the statement of some of the vendors on 27‑12‑1972 and the mutation itself was sanctioned on 31‑12‑1975. A suit for pre‑emption was, however, instituted on 2‑1‑1974. The objection of the petitioner was that the suit was neither in fact nor shown to be within time. His case based on the admission of the parties to the sale was that the change of possession of the land had taken place on 29‑1‑1971 or in any case by 27‑12‑1972. The trial Court found that this change of possession was contained only in the admission of the vendee and the vendor and not reflected in the Khasra Girdawari. The same view was taken by the first appellate Court and in the High Court. The claim was adjudged to be in time and the suit was decreed.

The learned counsel for the petitioner has drawn our attention to the plaint wherein the sale is shown to have been completed on 27‑12‑1972 and the suit was not shown to be within one year of it and a specific objection had been taken that neither the plaint disclosed that the suit was within time nor was in fact it was within time. The Courts in determining the question of fact had omitted to keep this defect of the pleadings in view and should have given effect to the objection and held the suit to be not competent and within time.

A suit pre‑empting the sale could be instituted under section 30 of the Pre‑emption Act within a year of the taking over possession of the property purchased by a vendee or of the attestation of the mutation. In this case the attestation of the mutation itself took place subsequent to the institution of the suit while the change of possession had taken place as admitted by the vendee and some of the vendor on 21‑9‑1971. In either case, therefore, a suit was incompetent barred by time if change of possession was taken to be the date of cause of action and premature if the attestation of the mutation was taken to be the date.

The defect pointed out in the plaint has been explained by the attorney of the plaintiff‑respondent when he appeared as a witness. The plaintiff‑respondent was tenant of a portion of the land which was the subject‑matter of the suit and when the vendee asked of a share in the produce of the land it was then that he learnt about the sale itself and it was at that time that he instituted the suit and it was within one year of it. All the three Courts have held that possession under the sale had not changed and this statement of the plaintiff- respondent has not received an effective rebuttal. In the circumstances, we find that there is no further legal question to be examined in this Court. Leave to appeal is, therefore, refused.

M.I.

Leave refused.

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