P L D 1969 Peshawar 178 (PLP)

This is an appeal from the judgment and decree of the Senior Civil Judge, Kohat, with appellate powers, dated 26‑2‑59, whereby he accepted the appeal of defendant‑respondents and set aside the judgment and decree of the Civil Judge, Ist Class, Kohat, dated 22‑11‑58, in favour of the plaintiff‑appellants. The graver in this appeal is to set aside the judgment and decree of the lower appellate Court and to restore that of the trial Court with costs throughout.

2. This appeal has been filed as further appeal under section 31 of the N.‑W. F. P. Courts Regulation, 1931, but subsequently re‑numbered as second appeal on promulgation of the West Pakistan Courts Ordinance, 1962. In view of the rule enunciated in Muhammad Gul and others v. Mst. Gul Marjan and others (P L D 1964 Pesh. 187) this appeal will be heard and disposed of as further appeal under section 31 of the N.‑W. F. P. Courts Regulation, 1931.

3. Gulla Jan vendor, was the owner of 55/252 shares in the land Khasra Nos. 3367/550 and 551, measuring 58 kanals and Khasra No. 558, measuring 21 kanals 16 marlas total 79 kanals 16 marlas. His share comes out to be 17 kanals 10 marlas of the land situated in village Thathi Nasratti, Tehsil Karak. Nur Nawaz and Abbas Khan, sons of Shahbaz and the other plaintiffs are entered as co‑sharers in this land. The share of Gula Jan co‑sharer was in possession of Abbas Khan plaintiff as a tenant, according to the entry in the Girdawari Exh. P. 1/4 of the year 1954., according to the jamabandi of the year 1954‑55 (copy Exh. P. 1/1) Khasra Nos. 3367/550 and 551, measuring 58 kanals, barani, have been shown in the column of cultivation, half in possession of Abbas, son of Shahbaz plaintiff and the re maining half in possession of Gula Jan as co‑sharers. By way of private settlement through a jirga vide receipt (copy Exh. D. 2/1) Abbas Khan plaintiff surrendered the land of the share of Gula Jan in his (Abbas's) possession to Gula Jan on 22‑12‑

55. Thus Gula Jan vendor assumed physical pos session of his share of 17 kanals 10 marlas in the suit Khasras, measuring 79 kanals 16 marlas. On 29‑1255 Gula Jan by an oral sale transferred his share of 55/252 in the suit land along with shamilat in favour of Muhammad Piao and Sarfraz defendant‑vendees allegedly for Rs. 2,

500. One Ramzan got this entered in the roznamcha of the Patwari on behalf of Gula Jan on 29/12/55. It was reported to the Patwari that the sale consideration of Rs.2,500 has been paid and the possession has been transferred to the vendees. Mutation No. 43027 (copy Exh. P. W. 1/3) to this effect was entered by the Patwari on 29‑12‑

55. On 26‑1‑56 Gula Jan vendor along with Muhammad Piao and Sarfraz vendees appeared before the Revenue Officer and admitted the receipt of the sale consideration of Rs. 2,

500. In this order dated 26 1‑56 on the mutation the revenue officer has noted that the vendor stated that in this area of 17 kanals 8 marlas the vendees had started construction of houses. In this order it is further noted that Nur Nawaz son of Shahbaz (plaintiff No.1) objected that the sale consideration was in fact Rs. 525 and the amount of Rs. 2500 as price of the land has been entered to save the sale from pre‑emption. He stated before the revenue officer that he has already given notice to the vendees to stop the construction of the houses. The revenue officer concluded that the vendees are in separate and physical possession on the site and that a tatimma of the site be prepared. Ultimately on 14‑3‑56 the mutation of sale of 55/252 shares along with shamilat share out of Khasra Nos. 3367/550, 551 and 558, measuring 79 kanals 16 marlas for Rs. 2,500 in favour of Muhammad Piao and Sarfraz vendees was attested.

4. On 12‑3‑57 Malik Reshmin and Sher Ali Khan, son of Reshmin, instituted a suit (No. 156 of 1957) for pre‑emption in respect of the sale by Gula Jan out of the suit land against Muhammad Piao and Sarfraz defendants. This suit was compromised between the parties and a decree of 9 kanals 1.2/3 marlas with Shamilat out of the suit Khasra Nos., was passed in favour of the plaintiff‑pre‑emptors.

5. On 13‑3‑57 Nur Nawaz and Abbas Khan, sons of Shahbaz Khan along with three others plaintiffs brought a suit (No. 158/1 of 1957) for pre‑emption in respect of the same sale against Muhammad Piao and Sarfraz defendant vendees 1 and

2. On 12‑7‑57 Malik Reshmin and Sher Ali pre‑emptors of Suit No. 156 of 1957 were arrayed as defen dants 3 and 4 in this suit. Sher Ali has since died and is represented by his legal representatives. This suit was con tested by all the defendants and the following issues were framed :‑ (1) Whether the suit is time barred? (2) Whether the suit is not maintainable in its present form? (3) Whether plaintiffs are estopped from bringing this suit? (4) Whether defendants 1 and 2 have made any improve ments, if so, of what value and whether they are entitled to any compensation ? (5) What is the effect of the decree in favour of defen dants 3 and 4 on the present suit? (6) Whether Rs. 2,500 have been paid or fixed in good faith? (7) What is the market value? (8) Whether the transaction in dispute is pre‑emptible? (9) Whether plaintiffs have got a preferential right of pre‑emption. (10) Relief.

6. Mr. Muhammad Inam Khan, Civil Judge, Kohat, by his judgment and decree dated 12‑11‑58, held the decree obtained by defendants 3 and 4 to be a nullity and granted the plaintiffs a decree for possession of the suit land by way of pre‑emption, on payment of Rs. 1,200 only. The defendant vendees were directed to remove the superstructure within a period of two months and that in case otherwise the plaintiffs shall be entitled to have it removed by applying to the Court.

7. Muhammad Piao and Sarfaraz defendant‑vendees along with Reshmin and Sher Ali defendants challenged this judgment and decree in appeal before the Senior Civil Judge, Kohat. The plaintiffs (decree‑holders) had also filed cross‑objections. The learned Senior Civil Judge by his judgment and decree dated 26‑2‑59 held the suit of the plaintiffs as time‑barred, and therefore accepted the appeal, set aside the judgment and decree of the lower Court dismissing the plaintiffs' suit with costs throughout. The cross‑objections of the plaintiff respondents in respect of the market value were accepted and the market value of the suit land was held to be Rs. 1083‑9‑

9. The plaintiff pre‑emptors have filed this appeal.

8. The learned counsel for the appellants, argued at length that the learned appellate Court was wrong to hold the suit of the plaintiff‑appellants as barred by limitation, and that the learned trial Civil Judge had rightly held the plaintiffs' suit within time from the attestation dated 14‑3‑56 of mutation No. 43027.

9. The learned trial Civil Judge on issue No. 1, regarding limitation, observed :‑ "As stated above the sale has been effected on the basis of mutation No. 43027 attested on 14‑3‑

56. The suit has been filed on 13‑3‑

57. The suit is within year from the date of attestation of mutation. The counsel for the vendees has argued that they took physical possession of the suit land long ago and also raised construction on it. The land possessed by the vendees was previously in possession of the plaintiffs brother. The plaintiff as such was aware of the change of possession and also has been watching the construction without any objection by him, the suit stands time barred reckoned from the date of physical possession by the vendees. I would not deny the assertion of the defendants. Yet the point for considera tion is whether the possession of the defandants was under the sale. As stated above, the mutation was attested on 14‑3‑56, the land sold is a share in joint khata. The possession of the vendees on any particular portion of the khata does not make them exclusive owners of that portion as in partition proceedings the vendees being given another portion cannot be ruled out. Again, the sale was completed only and when the mutation was attested. The possession of the vendees prior to the attestation of mutation is possession in anticipation of the sale before actual comple tion of the sale. For the purposes of pre‑emption the starting point‑ in such cases would be when the sale becomes complete. Earlier possession by the vendees as such can afford no ground. Issue decided against the defendants." The learned appellate Court gave finding on this issue con versely and observed that it was evident from the order dated 26‑1‑56 on mutation copy Exh. P. 1/3 that the sale in favour of the three vendees was complete on 26‑1‑56, that Exh. P. 1/4, copy of the Girdawari, also shows that the defendant vendees were in possession in Rabi 1956 under the sale. "All this shows that the defendants‑appellants 1 and 2 (Muhammad Piao and Serfaraz Khan) vendees were in possession of a part of the suit land on 26‑1‑56 under the sale in dispute. In such circumstances, the plaintiffs respondents ought to have brought this suit for possession by pre‑emption within one year of 26‑1‑56 under section 31(l) of the N. W. F. P. Pre‑emption Act of 1950 but the plaintiffs‑respondents have brought this suit on 13‑3‑57 beyond one year of 26‑1‑56 and as such the plaintiffs‑respondents suit is time barred." Section 31 (1) prescribes a period of limitation of one year, "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 takes under the sale physical possession of any part of such land or property whichever date shall be the earlier". In the present case it has to be found out when the sale of the suit land was complete and whether the defendants vendees took physical possession of the part of land under the sale before the attestation of the mutation on 14‑3‑57 so as to attract the second part of section 31 (1) of the N. W. F. P. Pre‑emption Act, as found out by the learned appellate Court, or it is otherwise a case falling under section 31 (1), Part 1, of the Pre‑emption Act.

10. It cannot be disputed that Gula Jan vendor sold 17 kanals 10 marlas as his 55/252 shares out of the suit Khasra, numbers measuring 79 kanals 16 marlas. Physical possession has been defined as proper or tangible possession and it does not include constructive possession but means personal and immediate possession. It means such a possession as will enable a person to exercise complete physical control over the property. I t is the nature and condition of the property, as it existed at the time of sale which determines the capability of the property for physical possession. The question whether the subject of sale does or does not admit of physical possession, must be determined with reference to the date of the sale. In Girdawari (copy Exh. 1/4) it is shown that in Rabi 1954 Abbas, son of Shahbaz Khan (plaintiff No. 2) was a tenant‑at‑will on Batai suaim on behalf of Gula Jan co‑sharer with respect to Khasra Nos. 3367/550551‑vide receipt (copy Exh. D. 2/1) this Abbas Khan surrendered his possession on the share of land of Gula Jan on 22‑12‑55 in favour of Gula Jan. This receipt has been scribed by Shad Ali Khan D. W. 2 and is signed by Abbas Khan. Muhammad Piao vendee‑defendant has also thumb‑impressed the same. Sarfaraz (P. W. 1) plaintiff has stated in cross‑examination that this land was previously in possession of his brother Abbas Khan, who transferred the possession to Gula Jan. Gula Jan had given the land on batai to his brother. Shad Ali (D. W. 2) a school teacher and an independent witness testified that he is the scribe of the original receipt (copy Exh. D. 2/1). He stated that he has seen this land. This land was previously in possession of Abbas Khan, who gave the possession to Gula Jan, and on this account the receipt (copy Exh. D. 2/1) was scribed, that Abbas Khan had signed the receipt in his presence. From this evidence it is amply proved that the area sold by Gula Jan was given in physical possession to him on 22‑12‑

55. Shad Ali Khan (D. W. 2) has further stated that after the receipt (copy Exh. D. 2) was executed, Gula Jan sold the same land for Rs. 2,500 in his presence, and transferred the possession of the same piece so that the vendee may construct houses etc. on it. He also added that the defendants started their construction soon after it. D. W. 3 Gula Jan vendor stated that the suit land was in possession of Abbas Khan from whom he took posses sion and the receipt was scribed. After that he sold the suit land to the vendees for Rs. 2,500 and gave them possession. The defendants started construction over the same. In cross- examination he stated that the land had not been partitioned but he was in hissadari possession. He admitted that at the time of giving possession Master Sabib and Zarwali were present. According to the evidence of D. W. 2 Shad Ali Khan and D. W. 3 Gula Jan vendor, the suit land was sold after its possession was surrendered by Abbas plaintiff to Gula Jan co‑sharer. From the entries in columns 13 and 15 of the mutation No. 43027 (copy Exh. P. 1/3) it can be reasonably ascertained that this oral sale was completed on 29‑12‑

55. Again, according to the evidence of D. W. 2 and D. W. 3, the suit land came into possession of the defendant vendees 1 and 2 on account of the sale and that soon after it the vendees started construction over the area. This sale was confirmed by Gula Jan and the vendees on 26‑1‑56 before the Revenue Officer. The starting of construction over the area before 26‑1‑56 is also evident from the objection by Nur Nawaz pre‑emptor in the Jalsa‑i‑am on 26‑1‑56 before the Revenue Officer. In the Girdawari of Rabi 1956 an area of 5 kanals out of the Khasra Nos. 3367/550‑551 is shown as ghair mumkin abadi. From these facts and circum stances, it is proved that the suit area was in physical possession of Gula Jan vendor, the oral sale was complete on 29‑12‑55 Gula Jan transferred the possession of the suit area in favour of the vendees defendants, the vendees started construction of houses etc. over a portion of 5 kanals out of the suit area and the sale and the construction by the vendees were confirmed by vendor and vendees on 26‑1‑5E before the Revenue Officer in the presence of Nur Nawaz plaintiff pre‑emptor. In Sardar Ali and another v. Fazil and another (A I R 1923 Lah. 75) it has been held As a co‑sharer in a joint undivided property has a right to every part of that property until partition, what he sells is his share or a fraction of his share in the whole of that undivided property ; in other words, he sells (to the extent of his interest or a portion of his interest therein) the whole property, and if his assignee takes possession under the sale or any portion of that joint property, time begins to run under the second clause of section 30 of the Pre‑emption Act from the time of such assumption of possession. In Hussain Bakhsh Khan v. Hussain Bakhsh and another (P L D 1961 Pesh. 33) it has been ruled "Section 31 of the N.‑W. F. P. Pre‑emption Act, 1950 prescribes two periods of limitation for a suit for pre‑I emption, one year from the date of attestation of the mutation or, where property is capable of physical possession, one year from the date of physical possession whichever is earlier where evidence of physical possession of the vendee prior to the attestation of the mutation is clearly established limitation would run from the date of the physical possession.. A sweeping proposition that where the property sold is an, undivided share in a joint holding, the share sold is not capable of physical possession and as such limitation runs from the date of the attestation of mutation, cannot be; accepted. A co‑sharer's share in an undivided holding is capable of sale and can be capable of physical possession by the vendee. If there are two co‑sharers in an undivided holding and each is in cultivation of his own share an if one of them transfers his share to another person and puts his vendee into physical possession, the other co‑sharer has a clear notice of the change of possession. The physical possession of the vendee in that case serves as a notice to the other co‑sharer. It puts him on inquiry into the mew‑comer's right of entry into possession in the place of the original owner and, if, as a result of the inquiry, he learns that the new comer has entered into possession in the capacity of a vendee, that gives him a clear notice of the sale in his favour and he can on that information institute a suit for pre‑emption." Thus in the present case the limitation of one year will commence from the date when the sale was complete, when possession was transferred to the vendees under the sale which date is ascertainable, as 29‑12‑55 and was confirmed on 26‑1‑

56. The period of limitation of one year either from 29‑12‑55 or the latest from 26‑1‑56 had expired when the pre‑emptors instituted this suit on 13‑3‑

57. As such, the suit of the plaintiffs is held barred by time.

11. As a result of the above discussion, while maintain ing the judgment and decree of the appellate Court, I dismiss this appeal. Parties to bear their own costs. A. E./K. B. A. Appeal dismissed.