P (PLP)

In order to appreciate this argument one has to go into the history of the sale of this land. It was on the 14th of August, 1945, that the patwari entered mutation No. 3696, to the effect that the property in suit had been sold in lieu of Rs. 300 by Zarab Khan in favour of Kamal Khan. The mutation came up before the Revenue Officer for attestation on 19th August, 1945. The vendor, i.e., Zarab Khan stated that the transaction between him and Kama) Khan was that of exchange and not of sale. Kamal Khan on the other hand produced a certain document which he called a receipt dated 9th November 1943, and said that the contract was that of a sale and not of an exchange. One Ramzam Khan also butted in' and stated that he was in possession of the property sold and was in its possession in his own right. The Revenue Officer did not attest the mutation and ordered that the land be measured, The mutation again came up before the Revenue Officer for ‑the same purpose on 6th March, 1946, when Zarab Khan admitted the sale, but Ramzan Khan and Kamal Khan' could not come to 4 agreement as regards the measurement of the land at the spot. The attesta tion of the mutation on account of this dispute was again postponed. Finally the Revenue Officer took up this mutation for attestation on 8th April, 1.948, and he recorded therein that Kamal Khan was in possession of this land since October, 1945. Since the vendor admitted the sale he attested the mutation on that date in favour of Kamal Khan. In the khasra girdawaris which have been placed on the record, the kind of the land in 1943 is noted as 6 kanals banjar qadim, and 3 kanads bantaa. The possession of Kamal Khan, the vendee, started from October, 1943, and 6 kanals of the land was prepared for cultivation in 1945. Wheat was cultivated in it in 1946, but after the wheat was reaped the kind of land is entered again as banjar‑qadim. Wheat, however, was again sown in 4 kanals of this land in 1947, and from that date upto the present time this land has continuously remained culturable, and shown in actual occupation of Kamal Khan. The learned trial Court found that the vendee had taken possession of the property sometime in March, 1946, and the limitation started from that date onward, and the suit having been brought on the 8th of April, 1949, was barred by time: The learned lower appellate judge, however, came to the conclusion that there was no proof that the sale of the property took place in 1943. He opined that it took place by an oral agreement some time later on; and the vendee was already in possession. Apart from that he held that at the time of the alleged sale the kind of land was described as banjar‑qadim, and was, therefore, incapable of being physically possessed. He found that the land being incapable of physical possession, limitation would start from the date of the attestation of the mutation, which was the 8th of April, 1948, and the suit having been brought on the date mentioned above was well within time. Section 30 of the Punjab Pre‑emption Act applies to all those cases which are not provided for by Article 10 of the Second Schedule of the Limitation Act, and in the case of a sale of agricul tural land or of village immovable property the time of one year is to be reckoned from the date of attestation, if any, of the sale by a Revenue Officer having jurisdiction in the register of mutation maintained under the Punjab Land Revenue Act, or from the date on which the vendee takes under the sale physical possession of any part of such land or property, whichever date 'shall be the earlier. The facts narrated above clearly go to show that Kamal Khan took possession of the property in 1945, if not earlier. It is true that before 1945, the kind of the property was mentioned as 6 kanals banjar‑qadim and 3 kanals banna, and as such it was not capable. of physical possession, but it became culturable land in 1945, and the fact, that it was so made by Kamal Khan, the vendee, cannot be denied, because it has been conclusively passed by the Revenue Record placed on the file. The question‑ for determination is whether in 1945, Kamal Khan took possession of the property under, the sale and the limitation therefore would run from that date onward, on this possession was not under the sale, because at the time of the actual sale the property was not capable of being physically possessed. Article 10 of the Limitation Act runs as under :‑‑ " To enforce a right of ‑pre‑emption whether the right is founded on law or general usage or on special contract one year from the time when the purchaser takes under the sale sought to be impeached, physical possession of the whole of the property sold, or, where the subject of the sale does not admit of physical possession when the instrument of sale is registered." In this Article it is specifically mentioned that the property in order to be physically possessed must be capable of being so possessed presumably at the date of the sale. The words " does not admit 'of physical possession" do not occur in section 30 of the `Punjab . Pre‑emption Act, and their omission from this section cannot be without significance. In my view the reading of the two provisions of law, i.e. section 30 of the Punjab Pre emption Act, and Article 10 of the Limitation Act makes it abundantly clear that the property which is not capable of physical possession at the time of the sale may become so capable after the sale, and if it is possessed by the vendee on the date when it becomes capable of physical possession, this possession would be under the sale and the time would run from that date onward. In this view of the case limitation would start from 1945, when the vendee made the land culturable: It was at that time a clear notice to the whole world that he had purchased the land. The plaintiff should have, therefore, instituted a suit within one year of that event, and the suit having been brought about three and a half years later would be clearly barred by time. It was urged by the learned counsel for the respondent that the land in suit had been sold along with a share of shamilat and as such the Whole land would be presumed as not being Physi cally possessed. This would have been true if the case were governed by Article 10 of, the Limitation Act, because under that Article the time starts running from the date when the physical possession of the whole of the property sold is taken, and since the physical possession of the shamilat until it is partitioned cannot be taken, time would start running from the date of the registration of the document. Under section 30' of the Punjab Pre‑emption Act, however, time starts running even if possession of some part of the land sold is taken. It, therefore, follows that the vendee petitioner having taken possession of a part of the principal land will make the time to run immediately. It has already been held that the vendee took possession of a part of the land in 1945, The period of one year shall have to be reckoned from that date onward, and the suit having been brought more than one ‑year after that will be barred by time. Lastly basing his argument on the pronouncement of Almond J. C, in. Qadir Bakhsh and others v. Ujjagar Singh arid others, reported as 1934 Pesh. L. J. p. 103, the learned counsel for the respondent contended that a wrong decision on a question of limitation is not a material irregularity in the exercise of jurisdiction, and so even if I hold that the decision of the lower appellate Court is wrong, still I have no jurisdiction to take up‑this question on the revision side, and set aside the judgment of the lower appellate Court on that score. I am, however, of the opinion that where the point of limitation urged in revision is one of law only, the facts being not in dispute, the High Court can interfere if it finds that the lower appellate Court has misapprehended the law. In the case before me there is no dispute with regard to the facts of the case. The learned lower appellate Court in my view has misapprehended the law, and that in itself amounts to a material irregularity, entitling me to interfere on the revision side. As a result of the above discussion I hold that the plaintiff's suit was barred by time. I consequently accept the revision petition, set aside the judgment of the learned lower appellate Court, and restore that of the learned trial Court, dismissing the plaintiff's suit. In view of the law point involved in the case, I leave the parties to bear their own costs throughout. Orders announced. K. M. A. Petition accepted.