1992 PLP 843 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑‑The petitioners have moved this petition to review the judgment of this Court, dated 20‑2‑1991.

2. Learned counsel for the petitioners submitted that the suit of the petitioners was within time as the sale in question is not covered by Article 10 of the Limitation Act and section 30 of the Punjab Pre‑emption Act. He submitted that Art.120 of the Limitation Act would apply. This contention was also raised by the learned counsel while arguing the appeal and it was not accepted. As the case is covered by a specific provision, the residuary Article is inapplicable. The facts enumerated in the appeal clearly show that the second part of section 30(1) of the Punjab Pre‑emption Act would apply. The learned counsel submitted that second part of section 30(1) would apply when the sale is evidenced by mutation. We do not agree with the contention. The first part of section 30(t) relates to the attestation of the sale and second part relates to the physical possession. There is no reference in this provision that possession must be followed by attestation. The two parts of section 30(1) refer to two different situations. In the first part, the starting point for limitation is the attestation of mutation and in the second part, from the date of delivery of physical possession. The learned counsel submitted that word `the sale' in second part relates to the date of attestation of the mutation. This argument is devoid of force. It relates to `a sale' mentioned in subsection (1) of section

30. There is no ambiguity in the law. The language is clear, therefore, it does not sound to reason that if the mutation is followed by delivery of possession only then section 30 would be applicable. In this particular case, the date of sale is' 12‑9‑1966 when possession of the land was delivered to the vendee. As the vendor rescinded the powers of attorney, the respondent per force had to file a civil suit and obtained a decree. The sale for all practical purposes was made on 12‑9‑1966. The respondents throughout this period remained in possession of the suit land. The learned counsel has referred to Gharib Shah v. Zarmar Gul PLD 1984 SC 188 which is distinguishable.

3. The learned counsel set up a new plea in this petition. He submitted that the disputed land was in possession of a tenant before the sale, as such the sale does not admit of physical possession. He has referred to 1976 SCMR 362, AIR 1923 Lah. 194, AIR 1924 Lah. 302, and some other cases on. this point. His further contention is that one‑half share of Khasra No.109 was sold and where a share out of joint holding was sold, the sale did not admit of physical possession. He has referred to AIR 1923 Lah. 75; AIR 1930 All. 255 and some other decided cases in support of his contention. These contentions were not raised earlier. Even otherwise, there is no substance in these contentions. The two Courts have decided the case on merits against the petitioners. The High Court in para. 4 of the judgment has referred to the judgment of the District Judge which is reproduced below:‑‑-- "While deciding in favour of the respondents the learned District Judge has relied upon copy of the Jamabandi for the year 1967‑68 Exh. P.1, showing the respondents to be in possession of whole of Khasra No.108 and northern part of Khasra No.109, measuring 28 Kanals 16 Marlas. He has also relied upon the Khasra Girdawari, Exh. P.2 as well as D.2. According to the said documents whole of Khasra No.108 had been brought under cultivation by the respondents in Kharif 1967 and they were shown to be in possession thereof without payment of any rent Khasra No.109 (in part) was also in their self -cultivation since Rabi,1967."

4. The District Judge has observed as hereunder:‑‑-- "It is also to be noted that according to this agreement northern portion of Khasra No.109 was agreed to be sold to the appellants. Khasra Girdawari copy (Exh. D.2) has a map over it and this shows the position of the portion sold to the appellants. Karam Shah being the exclusive owner of Khasra No. 108/109 he could sell a specific portion of the latter Khasra and this has actually been done. Hence the land sold was a specific portion and so was capable of actual physical possession."

5. On the basis of these findings by the two Courts, the contention of the learned counsel is without substance. This petition has no force. The same is dismissed. AA./A‑876/S Petition dismissed.