1997 PLP 1616 (CLC)

This revision 'petition,is directed against the judgment and decree dated 13‑2‑1985 passed by the learned Additional District Judge, Khushab, whereby the appeal of the respondent was accepted by reversing the judgment and .decree dated 29‑6‑1983 passed by the learned Civil Judge Ist Class, Jauharabad. Consequently, the suit of he was decreed.

2. The respondent instituted a suit for possession through pre‑emption of land measuring 160 Kanals situated in Mauza Roda, Tehsil and District Khushab on the ground of her being the real daughter of the vendor, a joint owner in the Khata. The land in dispute was sold by Muhammad Sher to his brother, the petitioner, late Matta Khan The trial Court framed as many as seven issues, The learned Civil Judge 1st Class, Jauharabad, dismissed the suit of the respondent vide judgment and decree dated 29‑6‑1983 as barred by time and under stamped at the time of its institution. The appeal of the respondent was, however, accepted and the suit was decreed vide the impugned judgment and decree passed by the learned Additional District Judge, Khushab, by reversing the findings on issues Nos.2 and 3.

3. It has been argued by both the learned counsel for the late petitioner (now represented by his legal heirs) that the learned appellate Court acted illegally and with material irregularity causing grave mis‑carriage of justice in accepting the appeal of the respondent by reversing the judgment and decree dated 29‑6‑1983 passed by the learned trial Court. They further contended that the learned appellate Court failed to taken into consideration the material evidence on reccord on' Issue No.3 which resulted in misreading and non?reading of the evidence on record. The learned counsel submitted that there was an unimpeachable evidence on record to prove that the petitioner got the physical possession of the suit land on 11‑10‑1980 comprised of specific Khasra numbers in the physical possession of the vendor. They argued that Article 120 of the Limitation Act was wholly inapplicable in this case as there was a special provision of Article 10 of the Limitation Act governing the period of limitation in this case. It was, therefore, contended that the findings of the learned appellate Court Issue No.3 were not sustainable at all. The learned counsel referred to Exh.D‑1, Exh.D‑2, EXh.D‑6 and the statement of the respondent who appeared as P.W.2 stating that the petitioner was in physical possession of the disputed property for the last 2‑3/4 years.

4. On the other hand, the learned counsel for the respondent submitted that the learned appellate Court recorded its findings after proper consideration of evidence on records adduced by the parties and that Article 120 of the Limitation Act was the only provision which was attracted to the facts and circumstances of this case. He further argued that no exception could be taken to the filing of the suit within six years of the sale in dispute or passage of decree. He stated that the property in dispute was a joint undivided property of which both the present petitioner Matta Khan and the father of the plaintiff/respondent were the co?sharers and that each co‑sharer was to be deemed to be always in possession of the property in dispute. He relied on the judgment in the case of Barkhurdar v. Muhammad Razzaq (PLD 1989 SC 749) in support of his contention that the period of one year of limitation was attracted only where either the sale was followed by attestation of mutation or with the delivery of physical possession of the land sold or where the sale was effected by a registered instrument but not in other cases which were to be governed by Article 120 of the Limitation Act providing period of six years. 5.???????? 1 have considered the arguments of the learned counsel for the parties and have also perused the record. I find that the suit for possession through pre?emption was filed by the respondent before the learned Civil Judge on 3‑1‑1982 whereas the mutation of the sale of the land in dispute had been sanctioned by the Revenue Officer on 28‑1‑1982. Therefore, the date of attestation of mutation was not relevant in this case as provided by subsection (1) of section 30 of the Punjab Pre‑emption Act, 1913. Now, the question arises as to whether the period of limitation of one year as provided for in subsection (2) of section 30 of the Punjab Pre‑emption Act and/or Article 10 of the Limitation Act, 1980, is applicable? The provisions of Article 120 of the Limitation Act being a residuary Article come into play only if the provisions of section 30 of the Punjab Pre‑emption Act or that of Article 10 of the Limitation Act are not attracted. In a case where the sale is effected by a registered sale‑deed or where the physical possession of the whole of the property sold is taken by the vendee, the period of one year is prescribed by Article 10 of the Limitation Act for filing the pre‑emption suit. It is only where Article 10 of the Limitation Act is not applicable the provisions of section 30 of the Punjab Pre‑emption Act, providing for one year as the period of limitation from the date of attestation of mutation or from the taking of physical possession of any part of the sold land under the sale become applicable. But both under Article 10 (ibid) or section 30 (ibid), the period of one year is prescribed for filing a pre‑emption suit whereas under Article 120 of the Limitation Act a period of six years is provided where no other period is prescribed by law.

6. Admittedly, the property in dispute is a joint undivided agricultural land. Both the vendee and the vendor were the co‑sharers of the land in dispute. As a result of arbitration proceedings, a decree in regard to the sale of the property in favour of the present petitioner was passed on 28‑9‑1980 by a learned Civil Judge. The revenue record. shows that the vendor was in physical possession of specific Khasra numbers/Khewat No.292 out of the joirit Khata which was sold and the physical possession thereof was delivered to the vendee on 11‑10‑1980 under the sale which was impeached by the respondent in suit for pre‑emption. This is borne out from Exh.D‑

1. The dispute of the factum of the delivery of physical possession of the suit property also came for determination before the Revenue Authorities. It was by order dated 18‑4‑1983 (Exh.D‑6) finally passed by the Commissioner, Sargodha Division, Sargodha, that the present petitioner was found to have taken over the physical possession of the property in dispute during Kharif 1980 onwards. The factum of the delivery of physical possession in October, 1980, was also corroborated by Khasra Girdawari Exh.D‑

2. Mutation of the property in dispute Exh.D‑3, copy of the consent decree Exh.D‑4, arbitration award Exh.D‑5 and the statement of the petitioner Matta who appeared as D.W.3. The respondent did not produce any cogent evidence to prove that the suit was within time. It was on the basis of preponderance of evidence led by the parties that the learned Trial Court rightly came to the conclusion that the suit by the respondent for possession through pre‑emption having not been filed within one year but after one year of the delivery of'the physical possession or that of the decree dated 28‑9‑1980 was hopelessly time‑barred. The findings of thelearned appellate Court on Issue No.3 are not sustainable at law inasmuch as the normal concept of Hisadari possession of the vendor in the property in dispute being a joint property was taken into consideration. The oral as well as the documentary evidence available on the record was misread or even not read in its proper prospective. It was not a case simplicitor of the challenge of sale by. decree. The decree dated 28‑9‑1980 merely gave a judicial recognition to the sale of the land in dispute. The question of the delivery of physical possession of the land in dispute under the sale was determinative and terminus a quo for computing the period of limitation under Article 10 of the Limitation Act. It is correct that normally in a case of sale of agricultural land of a joint undivided Khata there is no element of the delivery of physical possession. But in this case there is voluminous evidence on record to prove the vendor/co‑sharer was in physical possession of a specified Khasra numbers/Khewat out of the whole joint Khata which was sold by him to his brother, the petitioner and another co‑sharer. The physical possession thereof was also delivered. This was one of the exceptional cases where the entire Khata could not to be considered to be in physical possession of the petitioner/co?sharer. From the record it was proved that the vendor sold out and delivered the physical possession of a specific portion of the .joint Khata to the petitioner who was also a co‑sharer. It may also be mentioned that although each co‑sharer is to be deemed to be in possession of the whole of the joint property but cannot be deemed to be in physical possession of the whole property in every case. What is C relevant for the purpose of the present case is not the possession of the petitioner over the land in dispute as a co‑sharer but the actual delivery of the physical possession of the land in dispute by the respondent to the petitioner. 1, therefore, hold that land in dispute was capable of the delivery of the physical possession which was actually delivered to the petitioner by the vendor under the sale notwithstanding the petitioner being a co‑sharer in the property in dispute. In taking this view, I find support from observations made by a Division Bench of the Punjab Chief Court in the case of Bhawani Pershad v. Attar Singh and another (68 Punjab Record 1884). In that case, it was alleged that the suit property was common land but had already been divided and the vendor's share had been separated of and the same was in his exclusive possession before the sale. It was held that:‑ "If the above allegations were correct, the circumstances that the land was still recorded as an undivided holding would be no obstacle to the purchaser getting physical possession of the whole of the property sold." Similar observations were also made in the case of Sardar Ali and another v. Fazil and another (AIR 1923 Lahore 75) wherein it was held as follows:‑‑ "As a co‑sharer m 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 of 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.' ?I therefore, take the view that the property was in physical possession of the? vendor which was delivered under the sale to the petitioner in October, 1980. it filed by the respondent beyond the period of the one year was barred by G The suit time under Article 10 of the Limitation Act, 1980. The provisions? Article 120 of the Limitation Act being general in nature could not override the provisions of Article 10 ibid which is a special provision regulating the period of limitation for institution of a suit for pre‑emption being a case of delivery of the physical possession under the sale. The Hon'ble Supreme Court of Pakistan has held in the case of The State v. Zia ur‑Rahman and others (PLD 1973 SC 49 at 89) that it is well established rule of interpretation that where in a statute there are both general provisions as well as special provisions for meeting a particular situation, then it is the special provisions which must be applied to that particular case or situation instead of the general provisions. Therefore, the impugned judgment and decree dated 13‑2‑1985 passed by the learned Additional District Judge, Khushab, suffer from material irregularity and illegality causing miscarriage of justice. For the fore‑going re asons, this revision petition is accepted and the? impugned judgment and decree dated 13‑2‑1985 passed by the learned Additional District Judge, Khushab, are set aside. Consequently, the judgment and decree dated 29‑6‑1983 passed by the learned Civil Judge, Jauhraabad, are restored. There shall be no order as to costs. The respondent shall deliver the vacant possession of the suit land to the legal heirs of the petitioner on or before 30‑6‑1997 positively. The learned trial Court shall also ensure the delivery of the possession of the suit land to the legal heirs of the petitioner. A.A.IM‑376/L???????????????????????????????????????????????????????????????????????????????????? ??????????? Revision accepted.