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Regular Second Appeal No.890 of 1979, decided on 13th June, 1984.

---S.30--Limitation Act (IX of 1908), S.10--Limitation--Sale of agricultural land--Starts from date of attestation of mutation or from date of taking physical possession under sale (and not under agreement to sell), whichever earlier--Possession as tenant or prospective buyer is immaterial for purposes of limitation.

Gullan v. Muhammad Ramzan and others P L D 1962 B.J. 33 and Allah Ditta and others v. Syed Mehdi and others 1982 C L C 1645 ref.

---S.12--Right of pre-emption --Susceptibility of suit land to exercise of right of pre-emption-- Right of--Land transferred by Settlement Authorities under Martial Law Regulation No.89--Such transfer, held, was not subject to provisions of Colonization of Government Lands (Punjab) Act, 1912 at time of sale--Hence pre-emptible.

Gyan Singh v. Gyan Singh and another A I R 1923 Lah. 654; Fazal Din v. Sadiq Khan and others P L D 1982 Lah. 725 and Bashir Ahmad Kothria v. Sardar Muhammad and others P L D 1973 Notes No.81 at p.114 ref.

---S.12--Superior rights of pre-emption-- Claimed on ground that plaintiff was owner in estate of village while vendee was stranger- Vendee succeeded in establishing that he had exchanged land from other village to that of plaintiff's village before institute in of latters' suit for pre-emption-- Allegation of transaction having been ante-dated not proved--Plaintiff, held, did not possess better right of pre-emption against vendee at time of institution of suit on account of latter being owner in estate.

---S.100--Plaintiff's suit for pre-emption decreed and upheld in appeal--Finding of Courts below reversed in second appeal--Contention that High Court cannot interfere with lower Courts unanimous finding of fact in second appeal not accepted--Held: High Court is not expected to entertain a second appeal on ground of erroneous findings of fact, but when lower Courts have arrived at a material mistaken assumption, High Court has jurisdiction to come to its own conclusion- Lower appellate Courts finding of fact is binding on High Court only when it is honest, is arrived at on facts uninfluenced by extraneous considerations, is based on correct appreciation of material on record and is based on evidence and not on surmises and conjectures.

Akbar Ali Shah and 3 others v. Muhammad Shah and 4 others 1982 S C M R 286; Abdul Majid and others v. Khalil Ahmad P L D 1955 F C 38; Ata Muhammad Khan v. Mst. Khanzadi and others P L D 1976 Lah. 909; Mst. Bibi Jan v. Habib Khan and another P L D 1975 S C 295; Muhammad Afsar and 7 others v. Allah Ditta and 13 others 1970 S C M R 118; Bharpura v. Diwan Chand AIR 1940 Lah. 329; Vedachala Chattiar v. Ameena Bi Ammal and others A I R 1944 Mad 121 and Bhojraj v. Sita Ram and others A I R 1936 P C 60 ref.

Sardar Sami Hayat for Appellants.

Mian Nisar Ahmad for Respondents.

Dates of hearing: 30th May, 3rd, 4th and 13th June, 1984.

Agricultural land measuring 123 kanals and 15 marlas situate in village Thakar Singwala, tehsil Dipalpur, District Sahiwal (now Okara) was sold by Mst. Hameeda Begum, through her general attorney Col. Basmir Ahmad, in favour of Muhammad Siddique etc. appellants herein for a sum of Rs. 31,000, through mutation No. 21, dated 18th February, 1967, Ch. Muhammad Masood Akhtar Khan, respondent herein, filed a suit for possession of the aforesaid land by pre-emption on 17-2-1968, claiming the right of pre-emption to be superior on the ground that he was owner in the estate of village Thakar Singhwala while the vendees were strangers. The suit was resisted by the vendees, who pleaded inter alia that the suit was time-barred as the vendees were in possession of the suit land under the sale since May, 1964 and that as the land was situated in colony area and was subject to Colonization of Government Lands (Punjab) Act, 1912, the same was, therefore, exempted from pre-emption and further that the vendees were also owners in the estate as before the institution of the suit they obtained land measuring 40 kanals in the revenue estate of village Thakar Singwala by exchange from one Muhammad Hassan to whom they gave their land situated in village Shah Yakka through exchange deeds dated 25-1-1968 and 29-1-1968. Mutations in respect of exchange were attested on 15-2-1968 (about the land situated in Shah Yakka) and 16-2-1968 (about the land situated in village Thakar Singhwala). In his replication, the pre-emptor/ respondent contended that mutations in respect of the alleged exchange were in fact attested after filing of the suit by him but the same were ante-dated with the connivance of the Revenue Officers.

2. The parties were put to trial on the following issues:----

(1) Whether the suit has not been correctly valued for the purposes of court-fee and jurisdiction OPD

(2) If issue No. 1 is not proved, then what is the correct valuation O.P. Parties.

(3) Whether this Court has not the jurisdiction over the suit land OPD

(4) Whether the suit land is not susceptible to pre-emption OPD

(5) Whether the suit is barred by time OPD

(6) Whether the right of pre-emption of the plaintiff is superior to that of the defendant OPP

(7) Whether the plaintiff had the knowledge of the sale of the suit land If so, what effect OPD

(8) Whether the plaintiff is entitled to reduction in price as alleged in para 5-A of the plaint If so, how much OPP

(9) Relief .

3. After recording the parties, evidence, the learned trial Court, vide its judgment dated 19-11-1977, decreed the suit of the plaintiff respondent on payment of Rs.25,900 as he was allowed reduction of Rs.5,100 on account of cost of trees which were allegedly removed by the vendees-appellants from the suit land unauthorisedly.

4. Feeling aggrieved, the appellants preferred an appeal which was dismissed by a learned Additional District Judge, Sahiwal, on 24-10-79; except that instead of Rs.5,100 the pre-emptor was allowed reduction of Rs.600 on account of cost of the trees allegedly removed by the appellants from the suit land. Hence the present regular second appeal.

5. The findings of the learned lower Courts on the questions of limitation, susceptibility of the suit land to the exercise of right of pre-emption and the alleged better right of pre-emption of the pre-emptor have been challenged.

6. On the point of limitation, it has been vehemently argued on behalf of the appellants that although mutation in respect of the suit land was attested on 18-2-1967 but the appellants were actually in physical possession of the suit land since 1964, under an agreement to sell. Under Article 10 of the Limitation Act, as also under section 30 of the Punjab Pre-emption Act, in a case of a sale of agricultural land, period of limitation starts from the date of attestation of mutation or from the date on which the vendee takes, under the sale, physical possession of any part of such land, whichever date is earlier. In the present case, the sale has taken place through mutation No. 21, which was attested on 18-2-1967. The agreement to sell was no doubt executed in 1964 and was duly registered but the actual and physical possession, contemplated by Article 10 of the Limitation Act and section 30 of the Punjab Pre-emption Act, should be under the sale and not the agreement to sell. Muhammad Siddique, one of the vendees appellants, while appearing as D W 1 stated that at the time of execution of the agreement to sell dated 12-5-1964, a sum of Rs.30,000 was paid to the vendor while the remaining Rs.1,000 were paid to the vendor on 18-2-67, when the mutation was attested. Thus the sale was completed on 18-2-1967 when the mutation was attested and entire sale price was paid. Possession as tenant or prospective buyer is immaterial for the purposes of limitation. In Gullan v. Muhammad Ramian and others P L D 1962 (W.P.) Baghdad-ul-Jadid 33, it was observed:----

"The words 'under the sale' which occur in section 30 of the Pre-emption Act, are very significant and indicate clearly that possession of the purchaser must have been obtained in pursuance of the sale made in his favour and that if prior to the date of the sale he was in possession of any part of the land sold that possession cannot be deemed to be under the sale and, hence, time would run from the date of attestation of the mutation and not from any earlier date".

Similar view has been expressed in Allah Ditta and others v. Syed Mehdi and others, 1982 C L C 1645. In Gyan Singh v. Gyan Singh and another, A I R 1923 Lahore 654, the plaintiff brought a suit for pre-emption within a year from the date of the mutation in question but more than a year after the date of the alleged oral sale while the defendant-vendee had been in possession before the sale in the capacity of a tenant. It was held that limitation must run from the date of mutation. Since in the present case, the appellants admittedly took possession under the sale after the attestation of mutation' of sale on 18-2-1967, on which date they paid the complete sale price, period of limitation would start from that date. The plaintiff's suit which was instituted on 17-2-1968 has, therefore, rightly been held to have been instituted within time.

7. The second plea regarding susceptibility of the suit land to the exercise of right of pre-emption, raised on behalf of the appellants, is also without substance. In the circumstances of the under consideration case, the suit land was, admittedly, transferred in favour of Mst. Hameeda Begum, the vendor, by the Settlement Authorities, under Martial Law Regulation No. 89. This land cannot, therefore be said to have been subject to the provisions of the Colonization of Government Lands (Punjab) Act, 1912, at the time of its sale by Mst. Hameeda Begum in favour of the appellants. In Fazal Din v. Sadiq Khan and others, 1982 S C M R 1126, it was held that sale of the land held by the vendor partly as a result of allotment by the Settlement Authorities and partly by way of purchase under the provisions of Martial Law Regulation No. 89 was pre-emptible. Similar view was expressed in Fazal Din v. Sadiq Khan and others, P L D 1982 Lahore 725.- In Bashir Ahmad Kothria v. .Sardar Muhammad and others, P L D 1973 Note No. 81 at p. 114 it was held that sale o1 the land covered by para. 12 of the Scheme for the Disposal o1 Surrendered Land, as contained in Martial Law Regulations 89 and 91 of 1961 was not exempt from pre-emption by virtue of notification No. 196-B, dated 28-2-1944 issued by the Punjab Government, exempting lands to which Punjab Colonization of Government Lands Act, 1912, is applicable.

8. In' order to prove that they were already owners of land in the estate of village Thakar Singhwala, prior to the institution of the suit by the respondent, the appellants-defendants examined D.W. 5 Habib Ullah Patwari, D.W. 6 Rashid Ahmad Lambardar of village Shah Yakka, D.W. 7 Muhammad Hassan from whom they obtained land in village Thakar Singhwala D.W. 8 Fateh Din Lambardar, D.W. 10 Muhammad Zakariyya Tehsildar, D.W. 13 Muhammad Rafique Goraya, Magistrate 1st Class, Sahiwal, D.W. 15 Peerzada Khalid Majid, Tehsildar and Muhammad Siddique one of the appellants, also came into the witness-box as D.W. 11. Reliance has also been placed on Exh. D.3, copy of entry of Patwari's Roznamcha Waqiati, dated 15-2-1968, Exh. D. 4, copy of mutation No. 51, Exhs. D. 5 and D. 6, copies of exchange deeds and Exh. D. 9 copy of mutation No. 26, dated 16-2-1968, whereby the appellants obtained land by way of exchange in village Thakar Singhwala from Muhammad Hassan.

9. D.W. 5 Habib Ullah Patwari deposed that in February, 1968, he was posted in village Shah Yakka and the report regarding exchange was entered in his Roznamcha on 15-2-1968, by the concerned parties. He certified Exh. D. 3, as the correct copy of this report. He further deposed that on the basis of the report, he entered mutation No. 5, copy whereof is Exh. D. 4. Rashid Ahmad Lambardar, D.W. 6, stated that the vendees and Muhammad Hassan exchanged land. Muhammad Hassan gave land to the vendees in village Thakar Singhwala while the vendees gave him land in Shah Yakka. In respect of this exchange, two exchange deeds, Exhs.D.5 and D.6, were executed. This witness signed the deeds as a marginal witness. This witness also identified the parties at the time of recording the report in Patwari's Roznamacha. He also identified them at the time of attestation of mutations. He, of course, admitted that he was closely related to the vendees. Muhammad Hassan, D.W. 7, testified that exchange deeds, Exhs. D. 5 and D. 6, were executed between him and the vendees. He gave land to the vendees in village Thakar Singhwala in exchange of their land in Shah Yakka. He also stated that mutations were duly entered and sanctioned. Fateh Din Lambardar, D.W. 8, deposed that he signed exchange deeds, Exhs. D. 5 and D. 6, as a marginal witness. He was also present at the time of attestation of mutations. Muhammad Zakariyya, D.W. 10, stated that he attested exchange deeds, Exhs. D. 5 and D. 6, in his capacity as a Magistrate/ Gazetted Officer, as at the relevant time he was posted as Tehsildar Dipalpur. Muhammad Rafique Goraya, D.W. 13, deposed that in 1968 he was posted as Naib-Tehsildar Dipalpur and on 15-2-1968 he attested mutation No. 51 (copy Exh. D. 4), whereby Muhammad Hassan obtained land in exchange from the vendees in village Shah Yakka. Peerzada Khalid Majid, D.W. 15, stated that in 1968 he was posted as Additional Naib-Tehsildar, Dipalpur and in that capacity he attested mutation No. 25 dated 16-2-1968 (copy D. 9), whereby Muhammad Hassan gave land in exchange in village Thakar Singhwala to the vendees.

10. The plaintiff-respondent on the other hand examined P. W. 7 Khalil, P.W. 10 Allah Ditta and P.W. 11 Shamas-ud-Din. Khalil, P.W.7 disclosed that he was approached by the appellants-vendees for exchange of land 2/3 days after the institution of the suit by the respondent but he refused to accede to their request. He could not tell as to on what date the plaintiff had instituted the suit. Allah Ditta Nasim, P.W. 10, stated that six years earlier Muhammad Siddique vendee, accompanied by another person, approached this witness and asked him to sell stamp papers to them by ante-dating the date of sale. This witness did not oblige them. Shamas-ud-Din, P . W . 11, disclosed that he was asked by the Tehsildar to identify the vendees and Muhammad Hassan but he was told that an ante-dated mutation was being attested. He, therefore, refused to be a witness to such a

mutation. He admitted that he was from the brotherhood of the plaintiff-respondent.

11. It is noteworthy that the plaintiff-respondent himself examined one Bahadur as P.W. 9, who, against plaintiff's wishes, stated that he was the scribe of exchange deeds, Exhs. D. 5 and D. 6. This witness stated that on that day no licensed petition-writer was available and this witness wrote these exchange deeds on the shop of a commission agent. D.W. 11, Muhammad Siddique, one of the vendees, testified that exchange of lands between the vendees and Muhammad Hassan duly took place. Exchange deeds, Exhs. D. 5 and D. 6, were written on 25-1-1968. These deeds were also got attested by Muhammad Zakariyya, the then Tehsildar Dipalpur. Mutations, on the basis of these exchange deeds, were got attested on 15-2-1968 in respect of the land situate in Shah Yakka and on 16-2-1968 about the land situate in village Thakar Singhwala. The learned Civil Judge (trial Court) and the learned Additional District Judge have discarded the testimonies of D.W. 10, Muhammad Zakariyya Tehsildar, D.W.13 Muhammad Rafique Goraya Magistrate and D.W. 15 Peerzada Khalid Majid Tehsildar, on the ground that at the relevant time of attestation of the alleged exchange deeds aid mutations No. 51 and 26, Ghulam Mustafa son of Muhammad Siddique, one of the vendees was posted as Naib-Tehsildar under training at Dipalpur and these Revenue Officers colluded with him and ante-dated the mutations. Exception has also been taken by the learned Courts below to the fact that no report in Roznamcha Waqiati has been produced in respect of the land which the vendees obtained by exchange from Muhammad Hassan in village Thakar Singhwala. The learned Additional District Judge has not at all considered Exh. D. 3, copy of report of Patwari's Roznamcha Waqiati in respect of land in village Shah Yakka, whereby the vendees gave land to Muhammad Hassan in exchange of his land in village Thakar Singhwala. As against the statements of the aforementioned Revenue Officers and also the contents of Exhs. D.3 to D. 6 and D. 9, the learned lower Courts have placed reliance on the verbal testimonies of P.W. 7 Khalil, P.W, 10 Allah Ditta Nasim and P.W. 11 Shamas-ud-Din. Statement of P.W. 9 Bahadur, a witness produced by the pre-emptor, who testified in favour of the appellants, has not been considered and discussed. Ch. Muhammad Masood Akhtar, the pre-emptor/ respondent came into the witness-box as P.W. 5 but he did not utter a single word to say that exchange mutations were ante-dated.: It is not believable that three Revenue Officers two Patwaris aril two Qanoongos would stoop down so low and would act as such foolhardy that they would indulge in forgery and fabrication of the revenue record just at the behest of a youngster who was attached to tehsil office as a Trainee Naib-Tehsildar for the purposes of trainings. They very well knew that on account of forgery and fabrication of false revenue record they could be removed from service and also sent behind the bars. Presumption of due course is attached to all official acts. This presumption, of course, is rebuttable but by no stretch of imagination it can be said that in the present case presumption has been successfully rebutted by verbal utterances of three P.Ws., namely, P.W. 7 Khalil, P.W. 10 Allah Ditta and P.W. 11 Shamas-ud-Din, who have even not been supported by the pre-emptor/ respondent himself.

12. As a result of thorough consideration and careful analysis of the parties evidence, I have come to the conclusion that the vendees/ appellants have been successful to prove that they became owners of the land in the estate of village Thakar Singhwala by 16-2-1968, i.e. before the institution of the suit by the respondent by obtaining land in exchange from Muhammad Hassan in lieu of their land situate in village Shah Yakka, Tehsil Dipalpur. The plaintiff thus did not possess a better right of pre-emption as against the vendees at the time of institution of the suit on account of being owner in the estate. The findings of the learned Courts below on this point are, therefore, reversed.

13. It has been vehemently argued on behalf of the respondent that the learned lower Courts have recorded a unanimous finding on the question of fact that mutations evidencing the transaction of alleged exchange were ante-dated and that this finding cannot be interfered with by this Court in second appeal, as under Section 100, Code of Civil Procedure, re-appraisal of the evidence by High Court is not permissible. It is true that High Court is not expected to entertain a second appeal on the ground of erroneous findings of fact as has been held in Akbar Ali Shah and 3 others v. Muhammad Shah and 9 others, 1982 S C M R 286. Basic authority on this point is the case of Abdul Majid and others v. Khalil Ahmad, P L D 1955 Federal Court 38. But, when the lower Courts have arrived at a material mistaken assumption the High Court has the jurisdiction to come to its own conclusion. In Ata Muhammad Khan v. Mst. Khanzadi and others, P L D 1976 Lahore 909, it was held that finding based on conjectures, not supported by evidence, based on misappreciation of evidence, without discussing and scrutinising testimoney of witnesses and mitigated by errors could not be treated as sacrosanct in second appeal. In Mst. Bibi Jan v. Habib Khan and another, P L D 1975 SC 295, it was observed:-----

"No doubt it has been consistently held that High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact howsoever gross or inexecusable the error may be, yet there is ample authority for the proposition that no sanctity attaches even to concurrent finding of fact based on misreading or misrepresentation of evidence as this would' clearly bring the case within the scope of clause (c) of Section 100, C.P.C.

There is abundant authority for the view that the inference of proper legal effect is necessarily a question of law on which a second appeal is competent."

Similar view was expressed in Muhammad Afsar and 7 others Allah Ditta & 13 others, 1970 S C M R 118. Bharpura v. Diwan Chand, AIR 1940 Lahore 329; Vedachala Chattiar v. Ameena Bi Ammal and others, AIR 1944 Madras 121 and Bhojraj v. Sita Ram and others, A I R 1936 Privy Council 60, also support the view that lower appellate Court's finding of fact is binding on High Court only when it is honest, is arrived on facts uninfluenced by extraneous considerations is based on correct appreciation of material on record and is based on evidence and not on surmises and conjectures.

14. In the light of the foregoing conclusions, the appeal is accepted, lower Courts judgments and decrees are set aside and the plaintiffs- respondent's suit is dismissed with costs throughout.

M. I. Appeal accepted.

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