1988 PLP 1233 (MLD)

This judgment will dispose of this appeal as also R.SA. No.665 of 1980 entitled "Muhammad Ramzan v. Abdul Malik etc." as the same arise out of one and the same judgment.

2. The land in dispute was owned by Ghulam Jillani who sold the same in favour of the appellant for Rs.19,500 through registered sale‑deed dated 20‑12‑1975. Two suits of pre‑emption were filed, one by respondent: No.1 Abdul Salam and the other by respondent No.2 Abdul Malik. Both are admittedly sons of the vendor and they claimed their superior right on this ground. The learned Civil Judge, Mianwali decided all the issues framed in the case in favour of the respondents and decreed their suits vide judgment dated 5‑10‑1978 on payment of Rs.19,500 to the extent of half and half as their right of pre‑emption was equal. The appellant filed two appeals which were dismissed by the learned District Judge, Mianwali, vide judgment dated 7‑4‑1980. The two R.SAs. have been filed to challenge the said judgments and decrees. I have perused the record and have heard the arguments.

3. The contest between the parties before me relates only to limitation. The findings of the learned Courts below on other issues are not challenged. No issue relating to limitation was framed by the learned trial Court. However, the learned appellate Court dealt with the said aspect but without framing an issue. The learned appellate Court decided only the point of limitation as no other point was raised before him. The point relating to limitation is a mixed question of fact and l law. Although the parties had produced evidence in regard to the said question of fact yet I thought it proper to frame an issue in this respect vide order dated 10‑2‑1988. The issue is as under:‑ "Whether the suits of Abdul Salam and Abdul Malik are time‑barred?" Although the parties did not wish to produce any evidence or additional evidence on the same yet I allowed an adjournment so that the learned counsel could consult their clients and then. make a statement. On 16‑2‑1988 the learned counsel for the parties stated that they did not want to produce any more evidence on issue No.8‑A framed on 10‑2‑1988.

4. The sale‑deed Ext.D.1 was registered on 20‑12‑1975. Abdul Salam respondent No.1 had filed his suit even before that date on 15‑11‑1975. Abdul Malik respondent No.2 filed his suit on 20‑12‑1976. Therefore, if the limitation is to run from the date of registration of the sale‑deed i.e., 20‑12‑1975 the suits of both the respondents would be within time. It may be added that Abdul Salam I respondent No.1 filed the suit even before the said registered sale‑deed. If the date of registration is taken as starting point for limitation his suit filed on 15‑11‑1975 was premature. But that makes no difference because his suit became mature when the sale‑deed was registered on 20‑12‑1975. Therefore, he cannot be l non‑suited on the ground that he filed a suit before the sale was completed k through registered sale‑deed dated 20‑12‑1975. The claim of the appellant is that the sale was made and completed long before the sale-deed Ext.D.1 was executed and registered and that the appellant took physical possession of the land under the sale long before the said registration. Therefore, the point which requires determination is whether the limitation will run front 20‑12‑1975, the date of registration or from any earlier date. Article 10 of the Ist Schedule to the Limitation Act, 1908 applies to the case even according to the learned counsel for the parties. Its first part permits the starting of limitation from the date a purchaser takes physical possession of whole of the property under the sale sought to be impeached. The words "under the sale" are very important. An oral sale can be completed with payment of whole of the price and with delivery of possession of whole of the land. When such a sale becomes complete in this manner it requires nothing more to be done. This means that when an oral sale has been completed no sale‑deed in respect thereof is required to be executed or registered. A sale‑deed is executed and the same is got registered only because the sale has not been made and completed prior to it. In the present case the sale‑decd Ext.D.1 was executed and registered on 20‑12‑1975. This in itself shows that no sale had been made or completed prior to the said date. Therefore, the Ist part of Article 10 of the Limitation Act relating to completion of sale through delivery of possession applies to a sale which is oral and has been completed without execution and registration of a sale=deed. Accordingly in this case the sale was made and completed on 20‑12‑1975 and the limitation will start from the said date.

5. The evidence produced ay the appellant consists‑of his solitary statement as D.W.5 and Khasra Girdawari Ext.D.3 (also on file as Ext.P.2). The appellant claims that he came into possession of the land in dispute in July, 1973 and also claims that the sale was made and completed through payment of whole of the price and through delivery of possession of whole of the land at that time. However, there is nothing on record to support his said contention. The learned counsel for the appellant wants to make use of the .statement of Ghulam Muhammad Khan PW.1 and of Ghulam Jillani, vendor DW.4 produced by Abdul Malik pre‑emptor, respondent No.2. The evidence of these witnesses does not support the case of the appellant either in regard to the payment of price or in regard to the delivery of possession. PW.1 states that the business of sale was struck in 1974. He says that a sum of Rs.5,000 was paid as earnest money at that time and the remaining amount was paid afterwards. He does not state as to when the remaining amount was paid. DW.4 states that a sum of Rs.14,000 was paid to him afterwards, i.e., after the first payment because he states that the remaining amount had been paid to him as earnest money. Therefore, according to PW.1 and DW.4 the price was paid in two instalments. The first instalment was paid at the time when the alleged bargain was struck but they do not know or at least do not state as to when the remaining payment was made. However, the appellant as DW.5 contradicts them and states that whole of the price was paid at one and the same time and that only 8 to 10 days thereafter he got the sale‑deed registered. He has clarified that he was busy in those days and could not get the sale‑deed registered for 8 to 10 days. As such according to him no payment was made prior to 8 and 10 days before 20‑12‑1975. This would mean that no payment was made by him to the vendor DW.4 in 1974 or in 1973. Again, when DW.5 states that he could not get the sale‑deed registered for 8 to 10 days as he was busy it means that it was agreed that the sale will be made and completed through a registered sale‑deed. This aspect of the case proves that no payment of price was made by the vendee to the vendor to complete the sale either in 1973 as alleged by the appellant in his written statement or in 1974 a alleged by PW.1 and DWA. His statement suffices to prove that the bargain of sale was struck only 8 to 10 days before the sale‑deed was registered on 20‑12‑1975 and that it was agreed that the sale will be made and completed through a registered sale‑deed. On this ground as well the limitation will start from 20‑12‑1975 and not from any earlier date.

6. In the two written statements, one filed in reply to the original plaint and the other filed in reply to the amended plaint, the appellant took a definite plea that he was a tenant in the land in dispute and on the sale being made in his favour he became its owner in possession. Although his plea of tenancy was not proved from the record and he did not even press the same at any stage and even as DW.5 yet for the purpose of physical possession as an owner it will be taken that his possession under the sale commenced from the date when the sale was completed. The evidence of Ghulam Muhammad PWA, Abdul Salam PW.2, Ameer Hussain DW.3 who admittedly was a tenant in the land in dispute, read with Khasra Girdawari Ext.P.3 shows that the appellant is in continuous possession of the land in dispute since Kharif, 1974 and there is no denial of this fact. If at the time of delivery of possession to the appellant whole of the price had been paid to the vendor and had it been agreed that it will be an oral and not a sale through a registered sale‑deed the limitation would have run from the date of his possession. But, as already said, the appellant was never in possession of the suit land under the sale before the sale‑deed was registered. So is claimed by him in the said two written statements filed by him. He stated that he had purchased the land for Rs.19,500 through registered sale‑deed on 20‑12‑1975. Therefore, it does not lie in his mouth now to say that he came. into possession of the land under the sale prior to the said date. Therefore, the point of possession also does not help the case of the appellant. Accordingly issue No.8‑A is decided against the appellant. The findings of the learned appellate Court on this point are, therefore, confirmed.

7. The appeals are dismissed. However, in the circumstances of the case the parties shall bear their own costs throughout. S.Q./M‑671/L Appeals dismissed.