P (PLP)

MUHAMMAD SHARIF, J.‑This is a Letters Patent Appeal by the vendee arising out of a pre‑emption suit. Or 8th March 1943 Qamar‑ul‑7aman in the company of Muhammad Sarwar reported to the patwari that lie had sold 103 kanals 15 marlas of land with a share in the shamilat to Muhammad Sawar for Rs. 2,500 orally on 1st March, 1943, arid had transferred possession. On the same day, the vendor presenter an application to the Revenue Officer that his statement regarding the sale might be attested, as he might not be present at the tune of the mutation. In this too, it was recited that the ful7consideratior money had been received and that the possession had been given to the vendee. It was also mentioned that the vendee would not be able to attend at the time of the mutation. This was done and signed by both the vendor and the vendee. The mutation was eventually sanctioned on 23rd March, 1943. On 22nd March 1944, one Firoz Khan brought a suit for pre‑emption claiming a superior right. Several pleas were raised by the defendants, challenging the superior right of the pre‑emptor and even the sale itself was denied. In the course of the suit, while the statement of the Patwari was being recorded, an application was presented by the vendor that the possession had passed on the 1st March 1943, and the suit was consequently barred. The vendee also put in a similar petition and a new issue 4 (a) " Had defendant No. 2 entered into physical possession of any part of the land sued for, under the sale on 1st March 1943, and is the suit, therefore, time barred added. The learned Sub‑Judge fount in favour of the plaintiff and held that there was no reliable evidence that physical possession under the sale had passed to the vendee on 1st March. 1943. The suit was decreed. On appeal, the learned District Judge agreed with the findings of the first Court on all points, except the question of limitation. He held that the possession and passed on 1st March 1943 and the suit for pre‑emption was brought beyond time. He, therefore, accepted the appeal and dismissed the suit. The plaintiff pre emptor filed a second appeal to this Court. The learned Single Judge, who heard the appeal, by his order of 3rd June 1948, held that there was no proof of " physical possession " of any part of the land in suit having passed on 1st March 1943 and the terminus a quo was to be calculated from 23rd March 1943 i.e., the date of attestation of mutation. He, therefore, accepted the appeal and restored the decree of the trial Court. It is against this decision that a Letters Patent Appeal had been filed by the vendee. It was strenuously contended that the learned Single judge was not justified in interfering with the finding of fact by the District judge, that the possession had passed on 1st March 1943, and the suit was, therefore, barred by limitation. There was no clear finding by the learned District judge than " physical possession " over any part of the property in suit, was transferred on 1st March, 1943. Reference was made to the mutation and the khasra girdawari. In the mutation, as already mentioned, there was an allegation that the possession had already passed on 1st March 1943, and this was supported by the statement made by the parties to the sale, on 8th March 1943. The khasra girdawari was prepared on 24th March 1943, and the vendee's possession was recorded therein with reference to the mutation sanctioned on 23rd March, 1943. The learned District judge held as follows : " The combined effect of the entries in the mutation papers must, I think, be held to be that the sale was effected and completed on 1st March 1943 and that possession has passed to the vendee before the transaction was reported to the Patwari on 8th March 1943, and certainly before the sanction of the mutation on 23rd March, 1943. This being the case, the plaintiff's suit which was‑not filed until 22nd March 1943, must in my opinion, fail on this ground alone ". All that was found by the learned District judge, was, that possession had passed to the vendee before the transaction was reported to the patwari on. 8th March 1943. It was nowhere found that " physical possession" had actually been delivered by the vendor to the vendee before 8th of March 1943. The real question, as shall presently appear, was whether " physical possession" had been transferred over any part of the property forming the subject matter of sale, by Qamar‑ul‑Zaman in favour of Muhammad Sarwar. There was, therefore, no finding of fact on the matter in issue, which would have precluded a further inquiry into the question of " physical possession " in second appeal. Moreover, the written statement of Muhammad Sarwar dated 17th August 1944, filed in the suit for declaration instituted by Qamar‑ul‑Zaman, his vendor, regarding the same property, was not at all taken into consideration. It appears that after the preemption suit by Firoz Khan had been instituted, Qamar‑ul‑Zaman brought a suit for a declaration challenging the very sale itself. It was admitted that the plaintiff i.e., Qamar‑ul-Zaman vendor, was still in possession of the property on account of near relationship, but the ownership had been transferred to himself and that the mutation had been properly attested and sanctioned and the sale was for consideration and binding upon the plaintiff. Muhammad Sarwar wanted to get out of this admission in his written statement, by saying, that he had after the sale, entered into possession, but was subsequently die possessed. This, however, does not find corroboration from any other material on the record. The so‑called finding of fact by the learned District judge, was, therefore, vitiated and the learned Judge in Chambers was perfectly within his right to examine the whole position de novo in the, light of the evidence produced in the case. The question of limitation may now be considered. A suit for pre‑emption is governed by Article 10 of the Limitation Act. This is as follows:

To enforce a right of One year When the purchaser takes pre‑emption, whether under the sale sought to the right is founded on be impeached, physical law, or general usage, possession of the whole or on special con- of the property sold, or, tract. where the subject of the sale does not admit of physical possession, when the instrument of sale is registered. This Article obviously applies to those cases where the sale is evidenced by a registered instrument. The period of limitation is to commence from the time when " physical possession " of the whole of the property has been obtained and where this has not been done, or the subject of sale is not capable of being physically possessed, the date of the registration of the sale would be the starting point. Article 10 in its present form, has a history of its own. In the Limitation Act of 1859, the word used was " possession ," which was interpreted to mean " such possession as the property was capable of ". In the Act of 1871, this was changed to " actual possession " and there was a great divergence of judicial opinion, as to whether actual possession included constructive possession or not or whether it was confined in its meaning to tangible possession. This uncertainty was removed in the Act of 1877 and the phrase " physical possession " was introduced. The second alternative as `to the date of the instrument of the sale, was also added for the first time in the Act of 1877. This is repeated in the Act of 1908. Their Lordships of the Privy Council in I. L. R. 24 All. 17 at page 25 observed :‑ " The word ` physical' is of itself a strong word, highly restrictive of the kind of possession indicated ; and when it is found, as is pointed out by the High Court, that the Legislature has in successive enactments about the limitation of such suits gone on strengthening the language used, first in 1859 prescribing ` possession' then in 1871 requiring ` actual posses sion,' and finally in 1877 substituting the word `physical' for ` actual ' it is seen that that word has been very deliberately chosen and for a restrictive purpose. Their Lordships consider that the expression used by Stuart, C. J., (1 All. 311 F. B.) in regard to the words ` actual possession ' is applicable with still more certainty to the words `physical possession ' and that what is meant is a `personal and immediate ' possession ": But for section 30 of the Punjab Pre‑emption Act of 1913 the sale, not made by a registered instrument, would have been subject to the residuary Article 120 of the Limitation Act. Section 30 may now be quoted. Section 30 :‑ ‑ In any case not provided for by Article 10 of the Second Schedule of the Indian Limitation Act, 1908, the period of limitation in a suit to enforce a right of pre‑emption under the provisions of this Act shall, notwithstanding anything in Article 120 of the said schedule, be one year ; (1) in the case of a sale of agricultural land or of village immovable property, from the date of the attestation (if any) of the sale by a Revenue Officer' having jurisdiction in .the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee take under the sale physical possession of any part of such land or property whichever date shall be the earlier; (2) in the case of a foreclosure of the right to redeem village immovable property or urban immovable property ; from the date on which the title of the mortgagee to the property becomes absolute ; (3) in the case of a sale of urban immovable property, from the date on which the vendee takes under the sale physical possession of any part of the property. Both under Article 10 of the Limitation Act and section 30 of the Punjab Pre‑emption Act, the question of "physical possession " becomes of great importance ; because that is the starting point of' limitation ; under . Article 10 when physical possession of the whole of the, property has been obtained and under section 30 of the Punjab Pre‑emption Act when " physical possession " of any part of the property sold has been taken and where this has not been done, the starting point of limitation shall be the date of the instrument registered under the former and the date of the attestation of mutation under the latter. The conception of possession in a legal sense, has been discussed in Chapter IX of the Elements of Law by Dr. Markby. In para. 356 it is noted " It is not necessary in order to obtain possession, that the purchaser should step on to the land at all. If it is near at hand,. and the seller points it out to the buyer, and shows that the possession is vacant, and signifies his desire to hand it over to the buyer, whilst the buyer signifies his desire to receive it, enough has been done to transfer the possession. The physical possibility of the buyer dealing' with the thing exclusively as his own, which is all that is necessary, exists, whether he thinks proper to use it by stepping on to the land or not ". The use of the adjective " physical " to " possession ", connotes something more than a mere judicial conception of " possession ". It is something visible and tangible. It is some what akin to what Dr. Markby describes in paragraph 353 as " the corporal seizure or apprehension of the thing possessed by the possessor, and that, in all cases where this corporal contact does not exist, there is not a real, but only a fictitious possession." The expression " physical possession " was deliberately emphasized in the case of transactions subject to the right of pre‑emption. The law presumes registration of instrument, which, can, on a proper search, be ascertained from the registration books, and the attestation of mutation, which usually takes place in the presence of an assembly of villagers, as constructive notice of a fact, having taken place, and in their absence, the other thing, which could give notice to persons of a change, having taken place, in the ownership of the property, could only be the change, in the " actual possession " of the property, to which the right of pre‑emption extends. As laid down in A. I. R. 1923 Lah. 654 " the question is really one of notice and as the potential Pre emptor received no notice whatever until the date of mutation, the limitation must be held to run from that date ". In this case, the vendee was already in possession, at the time of the sale, and it was impossible in the nature of things for him to take " physical possession under the sale. The same proposition was affirmed in A. I. R. 1925 LAh.

165. The property at the time of the sale, was in the possession of a mortgagee and in the cultivating possession of a tenant under the mortgagee. The property was, therefore, incapable of being taken into physical possession by the vendee. It was held that " the law insists on physical possession because physical possession is visible to all concerned. It is a notice to all would‑be pre emptors that a change has occurred in the enjoyment and possession of the land in question and puts them to inquiry, whether there has been a sale. The mere reporting to the patwari that the vendor, has relinquished possession and that the vendee has assumed possession, is no proof that there was a giving and taking of " physical possession " within the meaning of section 30 of the Punjab Pre‑emption Act ". ' The term " physical possession " in Article 10 of the Limita tion Act, was explained in an earlier Full Bench judgment reported as 49 P. R. 1908. It was observed: " Property held by a tenant‑at‑will or by sufferance cannot be so taken possession of until the tenant is removed, and attornment to the purchaser is not enough to satisfy the words of the Article. It follows, therefore, that such property does not admit of physical possession within the meaning of the first part of the Article." The present case may now be judged in the light of the principles enunciated above. The property sold, consisted of 10 fields, out of which five were culturable and five waste land. Out of the culturable fields, two were with the mortgagee with possession and three were with the vendor, in which wheat crop was standing. It was conceded by the learned counsel for the appellant, that the fields other than the waste land, were not taken into physical possession by the vendee on, 1st March 1943 ; two were still with the mortgagee and the other three were covered with crop and if the khasra girdawari be taken to have trans ferred possession of the standing crop, that too was made on the 24th of March 1943. It was, however, vehemently argued that the mere pointing out of the waste land by the vendor to the vendee coupled with his expression of desire that the vendee might do with it anything he liked, was sufficient to transfer "physical possession " of the same. Reference in this connection was made to 97 P. R. 1917, and particular reliance was placed upon para. 356 of Markby's Elements of law. The three field numbers, of which physical possession was said to have been taken, were not unculturable baniar land. It was under cultivation in the previous harvest. The possession was said to have been delivered, by getting the tenants to attorn to the vendees and by pointing out on the spot each and every field which had been sold, and the Learned Judge followed 14 P.R. 1915, in which it was held, that to obtain possession of waste land, it was not necessary that the purchaser should step on to the land or get into corporal contact with it. All that was necessary was the physical possibility of the buyer dealing with the land exclusively as his own and in support of this proposition, Article 356 of Dr. Markby's Elements of Law was relied on 14 P. R. 1915 was not a case of pre‑emption. It was a case for setting aside a transfer under Hindu Law. The sale was made by a registered deed on 3rd August 1913. It was also found proved, that the revenue from kharif 1893 was paid to the lambardar by the vendee. The question that required determination was not one of " physical possession " but only of " possession " and the plaintiffs claim was held time‑barred, having been brought more than 12 years after the date, on which the defendant obtained possession of the land sold, such possession having been obtained on the date of the sale and having been since adverse to them. " Possession " was interpreted in its legal sense and for the purpose para. 356 of Dr. Markby's Elements of Law " It is not necessary in order to obtain possession, that the purchaser should step on to the land at all The physical possibility of the buyer dealing with the thing exclusively as his own is all that is necessary" was quoted with approval. With the utmost respect to the learned judges who decided 97 P. R. 1917, it may be pointed out in all humility, that " possession " in the legal sense is quite distinct from "physical possession " as contained in Article 10 of the Limitation Act or section 30 of the Punjab Pre‑emption Act which had the clear object of giving a notice to all persons concerned, that the former owner had parted with the property in favour of some other person. The mere admission by the vendor at the time of the report to the patwari or in a statement to the Revenue Officer, that the possession had been surrendered earlier, might be of some use and consequence to the parties to the transaction but could not be binding upon a stranger. The waste land comprising five fields was in .the same condition as before and no one could by a mere look, conclude that it had formed the subject‑matter of a recent transfer. As pointed out in A. I. R. 1925 Lah. 165, " the vendee might have taken possession by driving a plough through the land or by fencing it round " but there is no evidence that this was ever done. The land was or was not capable of physical possession. If it was, there must have been some concrete and visible taking of possession by the vendee in consequence of the sale in his favour, and if it was not ; the starting point of limitation, shall run from the date of mutation. The mere pointing out, even if believed to be correctly stated could not fulfil the necessary conditions of " physical possession. " The decision of the learned Single judge is correct and the appeal is dismissed with costs. K. M. A. Appeal dismissed.