2002 PLP 489 (CLC)

On 14‑7‑1982, the suit land was sold by Dullah in favour of Haji Muhammad, respondent through a registered sale‑deed. The petitioner herein filed a suit to pre‑empt the said sale on 26‑5‑1983. The suit was contested by the respondent/vendee, inter alia, that the same was time -barred. After framing necessary issues, the learned trial Court recorded the evidence produced by the parties. On appreciation and consideration of the evidence, the suit was decreed vide judgment, dated 9‑5‑1985. On an appeal, filed by the vendee, the learned Appellate Court framed an additional issue and remanded the case to the learned trial Court for decision afresh. This order of remand was challenged by the petitioner before this Court when his revision petition succeeded and the remand order was set aside. As a result of the above, the appeal, filed by the vendee, was heard by a learned Additional District Judge, Gujrat, who accepted the same on 16‑10‑1991 by holding that the suit filed by the petitioner was time‑barred. This revision petition is directed against the same.

2. Learned counsel for the petitioner contends that the suit has wrongly been held to be time‑barred by the learned Additional District Judge, Gujrat and the view so taken by him is, not only based on misreading of evidence on record but also contrary to the view taken in the connected matters decided by this Court and the judgment of the Honourable Supreme Court of Pakistan.

3. The learned counsel for the respondents in an endeavour to support the judgment of the learned Appellate Court, contends that the sale was complete on 11‑12‑1974 as the entire payment had been made and the possession was transferred to the vendee, the suit filed on 25‑6‑1983 was time‑barred. According to him the sale‑deed, dated 14‑7‑1982 was wholly irrelevant for computing the period of limitation.

4. The plea of the respondent that the suit was time‑barred had reference to agreement to sell (Iqrar Nama), dated 11‑12‑1974 Exh.D.W.1/1 in which a recital appeared as to the payment of price and transfer of possession. Admittedly, the formal sale‑deed was executed on 14‑7‑1982 (Exh.P.1 or EXh.D.W.1/2) which was in pursuance of a decree of specific performance, granted by the trial Court on 6‑6‑1982. The suit in this case by the petitioner was filed on 26‑5‑1983. On considering the evidence on the record Issue No.2 which was "as to whether the suit was time‑barred" was decided by the trial Court against the defendant/vendee computing the period of limitation from 14‑7‑1982 i.e. the date of sale‑deed. The said finding has, however, been reversed by the First Appellate Court by taking the view that on 11‑12‑1974 when the agreement to sell was executed the whole price had been paid and possession transferred, the sale was complete on that date and the period of‑limitation for suit would be computed from that date. It may be observed that although there was a recital as to payment of price and transfer of possession in agreement to sell, dated 11‑12‑1974, yet it was not a "sale" as the vendor was only a temporary allottee at that time, that seems to be the reason that the document was also captioned as "Iqrar Nama". The perusal of the contents of the sale‑deed, dated 14‑7‑1982, Exh.P.1, also leads to the same. There appears a clear recital therein and that: It clearly showed that the sale was being completed and finalized in praesenti on 14‑7‑1982. While considering the question of limitation which had arisen in Civil Revision No.476 of 1988 (arising out of an other agreement of sale of similar type, dated 11‑12‑1974 in favour of another vendee) Mudir A. Sheikh. J. (as his Lordship then was) took the view in judgment, dated 9‑6‑1990 as follows:‑‑ "Learned counsel for the petitioner faced with this situation attempted to argue that the period of limitation in this case prescribed for filing the suit has started on 11‑12‑1974 when possession of land was delivered to the petitioner at the time of execution of agreement of sale, therefore, the suit should have been filed within one year from the said date under Article 10 which provides that in case of physical possession of land was ‑delivered under the sale to the vendee the period of limitation was to start from the said date of delivery of possession. I am afraid the argument is wholly untenable. Under Article 10 of the Limitation Act the suit is to be filed within one year from 'the date of delivery of the possession of land under the sale to the vendee. It has already been held that agreement dated 11‑12‑1974 was not sale of the land ‑in itself but was merely an agreement whereas the sale of the land was made when the sale‑deed was executed and registered on 14‑7‑1982, therefore, the possession of land earlier delivered to the petitioner under agreement of sale cannot be construed to be delivery of possession under the sale. It is firmly settled that if a vendee is already in possession when the sale was made his possession could not lie treated to be possession under the sale. This view finds support from judgment reported as Abdul Aziz v. Hafiz Muhammad Abdullah and others 1984 CLC 300." It may be mentioned that the view taken by the learned Judge (supra) and in other petitions of like nature was upheld by their Lordships of the Supreme Court in C.Ps. Nos.605‑L to 609‑L of 1990 and the petitions for leave were dismissed on 19‑12‑1990. The same factual and legal position obtain in the present case inasmuch as the wording and contents of agreement to sell, dated 11‑12‑1974 in the instant case and the agreement subject‑matter of Civil Revision No.476 of 1988 are almost identical. The construction placed by the Additional District Judge on agreement, date4 11‑12‑1974 in his judgment in the present case is untenable and result of misreading of the same which is also contrary to the view taken by this Court in Civil Revision No.476 of 1988 and affirmed by their Lordships of the Supreme Court. The judgment, dated 16‑10‑1991, impugned herein, is thus, not legally sustainable. In view of the above, this petition is accepted. No order as to costs. Q.M.H./M.A.K./I‑73/L Revision allowed.