5/4/2020 2001 M L D 360

2001 M L D 360

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMAMD BOOTA‑‑‑Appellant

versus

NAZIR AHMED ‑‑‑Respondent

Regular Second Appeal No.46 of 1983, decided on 23rd October, 2000.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑‑

‑‑‑S. 52‑‑‑Khasra Girdawari‑‑‑Entries‑‑‑Proof‑‑‑Entries in Khasra Girdawari reflect the position existing on

the date they were made and could not be related to back position.

Khadim Hussain and others v. Muhammad Nawaz Khan 1981 SCMR 1183 ref.

(b) Words and phrases‑‑‑‑

‑‑‑‑"Year"‑‑‑Meaning.

Wharton's Law Lexicon ref.

(c) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 30‑‑‑General Clauses Act (IX of 1897), S.2(59)‑‑‑West Pakistan General Clauses Act (VI of 1956),
S.2(70)‑‑‑Expression "year" ‑‑‑Defined‑‑ Limitation for pre‑emption suit‑‑‑Term "year" used in S.30 of
Punjab Pre emption Act, 1913, means a calendar year, whether it be a year of 365 days or a leap year of 366
days.

(d) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss.21 & 30‑‑‑Pre‑emption suit‑‑‑Limitation‑‑‑Suit was filed within one year of the date of attestation of
mutation‑‑Vendee failed to prove his possession over the suit land prior to the date of attestation of
mutation‑‑‑Trial Court decreed the suit whereas the Lower Appellate Court dismissed the same as having
become time‑barred‑‑‑Validity‑‑‑Lower Appellate Court' having misread the evidence while recording the
judgment, High Court found the suit within time and judgment and decree of the Lower Appellate Court
were set aside and that of the Trial Court restored.

Ch. Hafeez Ahmad for Appellant.

Ali Ahmad Awan for Respondent.

Date of hearing: 23rd October, 2000.

JUDGMENT

Nazeer Ahmad respondent filed a suit against Mst. Muhammad Bibi wife of Shukar Din on 5‑5‑1973 stating
that the land has been sold by the said Mst. Muhammad Bibi to him for a consideration of Rs.42,500 three
weeks before the institution of the suit and that a declaration be granted accordingly. On the same date, Mst.
Muhammad Bibi filed a written statement admitting the suit and also got recorded a statement that the suit be
decreed. Consequently, the suit was decreed on the same date i.e. 5‑5‑1973. Mutation No.921 was attested on
30‑6‑1975. On 30‑6‑1976, the appellant filed a suit for possession of the suit land by pre‑emption stating that
the land had been sold by Mst. Muhammad Bibi to the respondent for a consideration of Rs.2,000 and has
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5/4/2020 2001 M L D 360

fictitiously got recorded a sum of Rs.42,500 in the said mutation. The right claimed was that he is an owner
in the estate. The suit was contested by the respondent. In his written statement, he objected that the suit is
barred by time; that the suit is not correctly valued for purposes of court‑fee and jurisdiction; that the suit is
bad for partial pre‑emption and; that the appellant had waived his right. On merits, he asserted that he had
purchased the suit land for Rs.42,500. The following issues were framed:‑‑

Issues:‑‑

(1) Whether the suit is barred by time? OPD

(2) Whether the valuation of the suit for the purposes of court‑fee is not correct, if so, what is the correct
valuation? OP. Part.

(3) Whether the suit is bad for partial pre‑emption? OPD..

(4) Whether the plaintiff has waived his right of pre‑emption? OPD

(5) Whether the plaintiff has a superior right of pre‑emption? OPP

(6) Whether the sale price of Rs.42,500 was fixed in good faith or actually paid? OPD

(7) What is the market value of the suit land? OPP.

(8) Relief.

Evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment‑and decree,
dated 17‑3‑1977 subject to payment of Rs.42,500. Feeling aggrieved the respondent filed a first appeal which
was heard by a learned Additional District Judge, Sialkot. Before the learned Additional District Judge, only
the findings of learned trial Court on Issue No. l were challenged. The learned Additional District Judge
found the suit to be barred by time. Consequently reversed the finding of the learned trial Court on Issue No.
l and resultantly the suit was dismissed on 31‑10‑1982.

2. Learned counsel for the appellant contends that this was a case where the sale had been effected, by means
of a mutation attested on 30‑6‑1975 and the suit filed on 30‑6‑1976 was well within time prescribed by
section 30 of the Punjab Pre‑emption Act, 1913. Further contends that the evidence on record has been
misread by the learned Additional District Judge. Learned counsel for the respondent, on the other hand,
argues that even if the said argument of the learned counsel is accepted, the year 1976 was a leap year and as
such the suit having been filed on 366th day instead of the 365th day, is barred by time. The learned counsel
supports the impugned judgment and decree of the learned Additional District Judge.

3. I have gone through the trial Court records with the assistance of the learned counsel for the parties.

I find that in the first instance, the suit was filed by the respondent against the said vendor vide plaint
Exh.D.4. On the same day, written statement Exh.D.5 was filed and statement Exh.D.6 was recorded and the
decree Exh.D.2 was passed. Mutation No.921 is available on record as Exh.P.4. As per entries in column
No.14, the mutation was entered on 28‑6‑1975 on the report of respondent. The mutation was attested on
30‑6‑1975. As per Roznamcha Exh.D.1, the mutation was entered vide Report No.387, dated 28‑6‑1975. The
learned Additional District Judge has relied on the statement of Muhammad Sharif D.W.1 who is the
recorded tenant of the land to hold that the possession of respondent dates back prior to the attestation of
mutation Exh.P.4. D.W.2 Faqir Hussain has also stated that since February, 1975, the land is being irrigated
from his tubewell and that Sharif cultivates the land. D.W.4 is the attorney of the respondent who has stated
that the respondent had obtained the possession from the vendor under the sale and had cultivated some
crops and thereafter Sharif had started cultivating the land. The appellant appeared as P.W.1 and denied that
the respondent had been cultivating the land, three years prior to the sale. The learned trial Court has also
referred to document Exh.P.2. This is the copy of Register Khasra Girdawari for the period Kharif 1975 to
Rabi 1976. The entry for Kharif 1975 was made on 31‑10‑1975 showing respondent to be in self‑cultivating
possession while entry for Rabi 1976 was made on 11‑3‑1976 showing Sharif as a tenant under the
respondent. No document had been brought on record by the respondent to support the plea that he was in
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possession of the suit land at any time before the attestation of the mutation. He himself produced Exh.D.1
which is the report Roznamcha Waqiati and it was not narrated by him even at that time that he had
taken‑over the possession of the land. The document Exh.P.2 goes to show that for the first time, the
respondent came into possession of the land w.e.f Kharif 1975 i.e. on 31‑10‑1975.

4. The learned counsel for the respondent tried to argue that the entry in Kharif 1975 has to be related back to
Rabi 1975 i.e. point of time prior to attestation of mutation Exh.P.4. I am afraid this is not possible. By now it
is well settled that entries in the Khasra Girdawri reflect the position existing on the date they are made and
they cannot be related lack. Reference may be made to the case of Khadim Hussain etc. v. Muhammad
Nawaz Khan (1981 SCMR 1183).

5. The learned Additional District Judge has obviously failed to read Exh.P.2. Had he read the same, he
would have found that both the respondents as well as their tenant Sharif had made incorrect statements
which are not supported by Exh.p.2 as otherwise observed by the learned Additional District Judge in his
impugned judgment.

6. Coming to the said first contention of the learned counsel for the appellant. He has sought support from
the meaning/definition of the term year in Wharton's Law Lexicon. I am afraid, the said definition does not at
all help the learned counsel for the respondent when he tries to argue that the Year 1976 being a leap year,
the suit filed on 30‑6‑1976 was barred by time. I only need to reproduce here the definition from the said
Lexicon to answer the argument of the learned counsel:

"Year: 365 days, twelve calendar months, fifty‑two weeks and one day or in Leap Year, 366 days i.e.
fifty‑two weeks and two days:"

This means that whether it is a year of 365 days or a leap year of 366 days, it is a year and the prescribed
period of limitation for filing of suit for pre emption is one year from the date of attestation of mutation.
Section 2(59) of the General Clauses Act, 1897 (Federal) defines a year to means a 'year' reckoned according
to the British calendar. S.2(70) of the General Clauses Act, 1956 (Provincial) defines a 'year' to mean the
year reckoned according to the Gregorian calendear. Needless to state that the term British and Gregorian
with reference to the Calendar are synonymous. It also need not be stated that normally in Pakistan, we go by
the said British calendar. Thus the term 'year' used in section 30 of the Punjab Pre‑emption Act, 1913 would
mean a‑calendar year, whether it be a year of 365 days or a leap year of 366 days. Nothing, therefore, turns
on the said argument of the learned counsel, for the respondent.

7. Having discussed the evidence available on record, I find that the' learned Additional District, Judge has
misread the evidence while recording his impugned judgment. I, therefore, reverse the finding of the learned
Additional District Judge on Issue No. l and restore those of the learned trial Court. The R.S.A. is
accordingly allowed, the judgment and decree dated 31‑10‑1982 of learned Additional District Judge, Sialkot
is set aside while that, dated 17‑3‑1977 of the learned trial Court is restored. The parties are left to bear their
own costs.

Q.M.H./M.A.K./M‑376/4 Appeal allowed.

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