P L D 1956 (W (PLP)

The question is, if at the time of the sale, the subject of the sale was not capable of being physically possessed, will the limitation of one year start running after the vendee sometime later takes the physical possession of the whole of that property or 'any part of it ? This question is certainly not free from difficulty. In this case, however, we feel that it is not necessary to express our view on it one way or the other. The facts are that by 44 unregistered sale deeds, written on 3rd November 1950, the four vendors sold 1/44th share in 11 Khasra numbers, measuring 18 Kanals 10 Marlas, in lieu of Rs. 99‑15‑0, by each sale‑deed, in favour of Sher Afzal Khan and Shah Wali Khan. In seven deeds it was mentioned that the entire consideration shall be paid to Mukarram, the previous mortgagee. In ten other sale deeds it was stated that the consideration thereof would be paid to Samand Khan and others, who were also the previous mortgagees of the land in question. The consideration in respect of the rest of the sale deeds was admitted to have been received by the vendors. The vendees paid the mortgage‑money to Mukarram on 21st February 1951, arid to Samand Khan etc, on 6th March 1951. Mutation on the basis of these sale deeds (No. 2881) was attested on 29th March 1951. Mukarram, the mortgagee, on 17th March 1952, brought a suit for possession, by pre‑emption of 11 Kanals 16 Marlas of land bearing Khasra Nos. 820, and 828, 5/48th share of 54 Kanals 17 Marlas of land, bearing Khasra Nos. 860, 866, 1403, 1405, 862, 1393, 1395 and 1007 and lastly 65/768th share of 9 Kanals 6 Marlas of land, bearing Khasra Nos. 1396 and 1404, on payment of Rs. 2,

000. The suit was contested by the vendees on several grounds inter alia that it was barred by time. The learned trial Judge found all the issues in favour of the plaintiff, except those relating to limitation and valuation. Since he found that the plaintiff's suit was barred by time, he dismissed it, but left the parties to bear their own costs. On appeal the learned Additional judge held that the suit was well within time, and he consequently granted a decree to the plaintiff for possession by pre‑emption of the suit‑land on payment of Rs. 3,700, with proportionate costs of the two Courts. The vendees have come up on further appeal to this Court. It is conceded that the land at the time of the sale was not susceptible of physical possession, partly because some of the land was under mortgage and it was only the equity of redemption, which was sold, and partly on account of the fact that the land sold was, a share of an undivided holding. It is, however, argued by the learned counsel, appearing for the vendees, that Khasra No. 828 was mortgaged with Mukarram, the plaintiff, and it was redeemed and taken possession of by the vendees on 21st February 1951, and, therefore, the time should start running from this date, and not from the date of the attestation of the mutation. The question which requires determination in this case thus is, whether it can be said within the meaning of section 31 of the North‑West Frontier Province Pre‑emption Act of 1950, that if a vendee by redeeming a mortgage takes physical possession of the mortgaged property, then he takes the physical possession of such property under the sale and the time starts running from that date own-wards ? No direct authority has been cited before us. A mortgage, apart from the mortgagor, can be redeemed by any person who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same as well as by any surety for the payment of the mortgage‑debt or any part thereof, and also by any creditor of the mortgagor who has in a suit for administration of his estate obtained a decree for sale of the mortgaged property (vide section 91 of the Transfer of Property Act). The reason for fixing the terminus a quo of limitation from taking the possession of the property by the. vendee is that the taking of such possession under a sale is an overt act, which constitutes a sufficient publi cation of the transfer to all the world. If a certain person re deems a certain mortgage, can it be said with any amount of cer tainty that he has redeemed the mortgage only because he is the vendee? In view of section 91 of the Transfer of Property Act quoted above, the answer to the above question will certainly be in the negative. The redemption of the mortgage by a person, therefore, will not by itself be a notice to the whole world, that a transfer in his favour has taken place. The vendees, therefore, by redeeming the mortgage and coming into possession of the property could not by reason of that fact alone be said to have occupied any property under the sale. The result is that the judgment of the learned Additional judge that the time starts running from the date of the attestation of the mutation, because the property was not capable of being physically possessed, is correct in law, and must be upheld. There is no other point argued before us. The further appeal is, therefore, dismissed with costs. A. H. Appeal dismissed.