P L D 1993 Lahore 777 (PLP)

The land in suit was sold by Rao Sarey Ali Khan etc. to the vendee defendants, Muhammad Hussain and others, respondents herein, by a deed of sale executed on 30-8-1975 and registered on 3-10-1975. The plaintiff, Muhammad Amin, appellant herein, sued to pre-empt the sale. The suit was decreed by the learned trial Court's judgment dated 7-12-1981. On the defendants' appeal, the learned Additional District Judge, Sialkot, dismissed the suit on the ground that the suit was barred by time. The only question in this regular second appeal by the plaintiff is whether the learned Additional District Judge was right in so holding. ?

2. According to the sale-deed (Exh.D.1), the land in suit consists of land measuring 228 Kanals comprising the whole of Khewat No.75, land measuring 3 Kanals 3-1/2 Marlas being 1/2 of 6 Kanals 5 Marlas comprising Khewat No.94, land measuring 2 Marlas bcing 1/8th share of 17 Marlas comprising Khewat No.96, and land measuring one M--,-Ia being 1/8th of 7 Marlas comprising Khewat No.97, the total being 231 Kanals 7 Marlas according to the record of rights for the year 1971-72. The sale-deed (Exh. D.1) shows also that the sale was made in specific shares to each of the vendee defendants, 2/34hares in favour of Muhammad Hussain, 1/3 share in favour of Mst. Surayya Begt--zn and 1/3 share in favour of Muhammad Nazir, Muhammad Majid and Muhammad Saleem. The We-deed also recited that the defendants had been placed in possession and that it was now for them either to cultivate the land themselves or to cultivate it through tenants. The total sale price was Rs.1,75,000; out of it, Rs.40,000, it was said, had been received by the vendors as advance and the remaining amount o Rs.1,35,000 was to be paid before the Registering Officer.

3. This suit was instituted by the plaintiff on 2-10-1976. It was said para. 7 of the plaint that cause of action for the suit had accrued t the plaintiff on 30-8-1975, but as the sale-deed had been registered o 3-10-1975 the period of limitation had started running against him with effect from 3-10-1975 and the suit had, therefore, been brought in time.

4. The defendants contested the suit by filing a written statement. Ii para.7 of their written statement, they were content to say that the plaintiff ha no cause of action against them. Their preliminary objection No.2, however was that the suit was barred by time. They did not state the ground on which they thought that the suit had not been brought timeously. They did not refer to the recital in the sale-deed about the delivery of possession; nor did they said that the delivery of possession had taken place on 30-&1975 when the sale deed (Exh.D.1) was executed.

5. On issue No.5 which was whether the suit was within time, the finding returned by the learned trial Judge was that the sale took place on 3-10-197 and as the suit had been brought within one year of that date, it was with time. Before the learned trial Judge, it was argued on behalf of the defendant that as the plaint as originally presented was deficiently stamped, "the plaintiff cannot be allowed to make up the deficiency of the court-fee at this stage because the suit had been brought barred by time". The learned Civil Judge dismissed that contention saying that the suit had been correctly valued an correct court-fee had been paid when the plaint was originally presented.

6. Before the learned Additional District Judge also, it was assumed that the sale ?deed had been executed on 30-8-1975 and that it was "formal registered" on 3-10?1975. Argument presented on behalf of the defendant however, was that there was a recital in the deed of sale (Exh.D.1) that the sale was complete when the deed was executed and that the possession had Nee delivered to the vendees on that date i.e. on 30-8-1975 and "now they at the option could cultivate this land themselves or could induct tenants in the property". The argument therefore, was that physical possession had bee delivered to the defendants under the sale on 30-8-1975. Relying upon Ran Gopal v. Dr. Baikunth Nath Sharma (AIR 1947 Allahabad 252), the learned Additional District Judge held that "time for filing a suit for pre-emption start running from the date of the execution of the sale-deed and delivery o possession and not from the date of registration of the sale-deed on a late date" and that since "the delivery of possession under sale had taken place i the instant case on 30-8?1975 and this was the starting point for the purposes o limitation", the suit was barred by time. The learned Additional District Judge held, also that "the property was capable of physical possession becomes clear when we find in unambiguous terms the recitals in the. sale-deed Exh.D.1 that the possession had been delivered to the vendees and they at their option could cultivate this property themselves or they could induct tenants and that the vendors would have no objection in this regard".

7. When I first heard learned counsel for the parties, learned counsel for the appellant argued that the learned Additional District Judge was wrong in non-suiting the plaintiff solely on the basis of the recitals in the sale-deed (Exh.D.1) as to the delivery of possession. Learned counsel for the defendants, respondents herein, was however, of the view that the learned Additional District Judge had rightly relied upon the recitals in the deed; in his opinion, there was other evidence also to support the view taken by the learned Additional District Judge; that evidence consisted of the testimony of Shahab Din (P.W3) and Muhammad Hussain one of the defendants as D.W.9. He was also of the view that the law laid down in Ram Gopal case (AIR 1947 Allahabad 252) fully supported the view of the learned Additional District Judge.

8. In Ram Gopal case, the learned Courts below had found as a fact that physical possession was obtained by the vendee immediately after the execution but before the registration of the sale-deed. The learned trial Court however held that possession was not taken under the sale-deed because prior to registration there was no valid sale. In the first appeal, the learned District Judge took a different view. He held that under section 47 of the Registration Act, a registered document operates from the time from which it would have commenced to operate if no registration had been required or made and not from the time of its registration and that consequently the operation of the sale took effect from 29-3-1943 and the vendee must be held to have obtained actual physical possession under the sale from that date". It was in these circumstances, that it was held that "time runs from the date of delivery of possession and not from the date of registration". This, precedent case was, therefore, an authority for its own facts and was, therefore, wrongly, invoked for the view taken by the learned Additional District Judge. As has been seen, the learned Additional District Judge thought that the -recital in the sale-deed (Exh.D.1) as to the delivery of possession was sufficient evidence of the fact of the delivery of possession on 30-8-1975 when the deed was executed. This view, it must be held, is insupportable in law. As was held in Khushi Muhammad v. Abdul Shakoor (1987 SCMR 1473) a recital in the sale-deed is by itself not sufficient to establish the delivery of possession. As regards the oral evidence of Shahab Din (P.W.3) and Muhammad Hussain, defendant (D.W.9), what they said was that they had been cultivating the land from the date of sale. This was not supported by any documentary evidence, such as the Khasra Girdawri or Jamabandi. The learned Additional District Judge had not taken that evidence and rightly in my view into consideration. It must be held, therefore, that the learned Additional District Judge was wrong in holding that the physical possession of the land had been taken by defendants on 30-8-1975.,

9. While examining the sale-deed (Exh.D.1), I noted the following facts. The deed had been presented for registration before the registering officer on 30-8-1975. The proceedings before the Sub-Registrar of that date show that the parties had appeared before him and had admitted the execution and completion of the deed, that the remaining We consideration, Rs.1,35,000 was paid by one of the. vendees to the vendor; that the parties were duly identified before the registering officer and that these proceedings had culminated with the following order of the registering officer. therefore, re-heard the learned counsel iox7 the -parties on the 'question whether these proceedings were proceedings under sections 50, 52, 58 and 59 of the Registration Act and whether the deed must be taken to have been registered within the meaning of section 60 of that Act on 30-8-1975.

10. Learned counsel for the plaintiff argued that sections 52. to 61 of the Registration Act must be read together. He relied heavily upon the provisions of section 61 of the said Act and contended that a document is not registered till the endorsements and certificate referred to and mentioned in sections 59 and 60 of the said Act have been copied in the registration book.

11. Section 59 of the Registration Act requires the Registration Officer to affix the date and his signature on all endorsements made under sections 52 and 58, relating to the same document and made in his presence on the same day. Subsection (1) of section 60 of the said Act provides:-- "After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word 'registered', together with the number and page of the book in which the documents have been copied". Subsection (1) of. section 61 requires that endorsements and certificate referred to and mentioned in sections 59 and 60 shall be copied into the margin of the Register-book and the copy of the map or plan (if any) mentioned in section 21 shall be filed in Book No.1" and subsection (2) of section 61 says:-- "The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the game for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in section 52."

12. For his contention, learned counsel for the plaintiff, appellant herein, cited Ram Saran Lall and others v. Mst. Domini Kuer and others (AIR 1961 Supreme Court 1747). For the contrary view, learned counsel for the .defendants referred to Muhammad Meherali Mondal v. Muhammad Karam Ali Sarkar PLD 1965 Dacca 305.

13. It has been seen that the land in suit was comprised of the whole of Khewat No.75, 1/2 of Khewat No.94, 1/8 of Khewat No.96 and 1/8 of Khewat No.97. There is, therefore, no doubt that the provision applicable was Article 10 of the First Schedule to the Limitation Act. Under that Article, time begins to run "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". As a part of the land was comprised of shares, this was a case in which the subject of the sale did not admit of physical possession. It must follow, therefore, that time began to run against the plaintiff when the instrument of sale was registered". In the Supreme Court of India case, namely, Ram Saran Lall and others v. Mst. Domini Kuer and others, the sale was governed by the Islamic Law of Pre-emption. The deed of sale was executed on January 31, 1946; it was presented at the registration office for registration on the same day, it was left with the Registrar in the registration office for the necessary entries and copies being made. On February 7, LW, the receipt granted by the registration office to the Pandevs (they were the vendors) was made over by them to the purchaser who thereupon paid the balance of the price as stipulated in the deed. I On February 9, 1946, the documents were copied in the Registrar's books and thereupon the registration became complete as provided in section 61 of the Registration Act. It was noted that under the Mohammadan Law, "the right of pre-emption arises only out of a valid, complete and bona fide sale; that "one of the requisites before the right of pre-emption can be exercised is the preliminary demand by the pre-emptor and that such demand must be made after the completion of the sale". It was held by the High Court that the plaintiffs "were not entitled to enforce the right of pre-emption because they had not made the preliminary demand after the completion of the sale as the law required them to do". This was, therefore, not a case under Article 10 of the Schedule to the Limitation Act and the question before the Supreme Court of India was i not when an instrument of sale is registered within the meaning of that Article. It was argued by learned counsel for the plaintiff, that in taking that view, the High Court had overlooked section 47 of the Registration Act the effect of which was to make a registered document operate from the time from which it would have commenced to operate if no registration thereof had been required and not from the time of its registration. In that behalf, it was observed that the object of section 47 of Act was to decide which of the two or more registered documents is to have effect. "The section applies to a document only after it has been registered. It has nothing to do with the completion of the registration and therefore nothing to do with the completion of a sale when the instrument is one of sale". The case of Muhammad Meherali Mondal v. Muhammad Karam Ali Sarkar PLD 1965 Dacca 305 cited by the learned counsel for the defendants, respondents herein, appears to be directly in point. The question that fell for consideration, there was "when a document is considered as registered". As neither of the parties had succeeded in placing before Salahuddin, J. (as he then was) sitting singly, a decision of any Superior Court of Pakistan on that question, Salahuddin, J. referred the question to a larger Bench and it was thus that the case was placed before a Division Bench. It was held that the language of section 60 of the Registration Act 'admits of no doubt that it is the certificate in compliance with the provisions of this section that makes a document, a registered document. The document cannot be regarded as registered before the certificate is endorsed thereon and signed, sealed and dated in terms of section 60, nor has it to wait for acquiring the character of a registered document till after compliance with the other provisions that follow section 60". Support for this contention was received from a Privy Council case Muhammad Ewas v. Buj Lal (ELR 1 AIL 465~ The learned Judges were, therefore, unable to accept the contention that "unless and until the provision of section 61 is complied with the document cannot be regarded as having been registered". The case from the Indian jurisdiction referred to above, namely, Ram Saran Lall and others v. Mst. Domini Kuer and others was also considered. That case it was observed, was concerned with the completion of the registration. 14. 1 respectfully adopt the view of the Dacca High Court and hold than the deed in this case was registered on 30-8-1975 and that the time had begun to run against the plaintiff from that date. As the suit was instituted on 2-10-1976, it must be held to be barred by time.

15. In the result, the appeal is dismissed but the parties are left to bear their own costs. AA./M-1113/L???????????????????????????????????????????????????????????????? appeal dismissed.