P L D 1961 (W (PLP)

Allah Bakhsh for Respondents. Date of hearing : 24th March 1961. This is, a revision petition against the appellate order of the District Judge, Derajat dated the 4th of March 1957. By that order he dismissed the Plaintiff's appeal whose suit had been dismissed by the trial Judge by his order dated the 21st of December 1956,

2. The facts of this case briefly are, that one Fazal Ahmad, along with others, was a ca‑sharer in a khata, in total area of which was 1738 kanals 7 marlas. On the 29th of December 1954 he, went to the Patwari and stated that he had sold 1664/4126 share in this khata out of the two fields, bearing khasru Nos. 559/259/260 and 560/259/263, measuring 206 kanals 6 marlas to Hussain Bakhsh son of Jana, for a sum of Rs 5,

248. He also stated that he had received the entire sale money and had delivered possession to the vendee. This mutation was put up before the revenue officer on the same date, who ordered that if the possession is found to have been handed over to the vendee, a tatimma field should be. carved out and a tatimma number should be allotted to it.

3. On 12th of February 1955, it was again reported that the vendee was in possession of the land sold. The mutation came up before the revenue officer again on the 14th of June 1955, who stated in the order that the sale had been admitted by the vendor, that a tatimma field had been carved out of the two fields sold; and that possession over an area of 83 kanals 4 marlas was with the vendee. But the Girdawar was instructed to look further into this matter. This mutation again came up before the revenue officer on the 14th of September 1955. The revenue officer stated again in the order that Fazal Ahmad vendor had already admitted the transfer and the Girdawar had reported about the carving out of the tatimma field. He, therefore, passed the final order, sanctioning the transfer of the land to Hussain Bakhsh son of Jana for a sum of Rs. 5,248.

4. A pre‑emption suit was instituted by another Husain Bakhsh son of Hayat in respect of the sale on the 12th of September 1956, on the ground that he was a co‑sharer with the vendor and was entitled to pre‑empt the sale. To that suit many defences were raised. The pre‑emptor's right was challenged, waiver was also attributed to him, and the suit was stated to be beyond time The Sub‑Judge found that the plaintiff's suit was Beyond limitation prescribed by, section 3 of the N.‑W. F. P. Pre‑emption Act, and dismissed the suit. The Appellate Court was of the same opinion and he confirmed the decision of the trial Judge.

5. It was found by both the Courts below that possession was transferred to the vendee long before the mutation was attested. The Patwari was summoned and he stated that in the Girdawari of Rabi 1955, which in respect of this field took place on the 23rd of March 1955, the vendee was fund in possession. Wheat crop was found to have been cultivated by him. Section 31 of the N.‑W. F. P. Pre‑emption Act prescribes two periods of limitation for a suit for pre‑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. The two Courts found that property was capable of physical possession, and physical possession was taken by the vendee before the attestation of the mutation, in any case on the 23rd of March 1955, and the suit was instituted beyond time. As the finding is one of fact and the two Courts have concurred in it, it is binding now and cannot be disturbed in revision or even in further appeal, if the case had been here on the appellate side. There is force in that contention. The finding is undoubtedly one of fact and as the two Courts have concurred in it, it cannot be disturbed.

6. But there is, in my view as well, ample evidence on, the record in support of that finding. There is in the first statement of the vendor, which was made before the Patwari and the revenue officer on the 29th of December 1954, a clear admission by him that he had received the sale money and handed over possession to the vendee In the two subsequent orders which were made by the revenue officer, one on 14th of June 1955, and the other on 14th of September 1955, there is reference to the fact that possession had been previously transferred. The finding has, therefore, an anchorage in facts and evidence.

7. Against that it has been contended by the learned counsel for the petitioner that Fazal Ahmad's share was under lease with Nawaz Khan, and the lease had to expire in June 1956 and the property sold was not capable of physical possession. But the Patwari stated that Nawaz Khan was in possession as lessee from 1950‑51 to Kharif 1954. In Rabi 1955 the vendee came to be recorded in possession in the khasra Girdawari. If there was a lease in favour of Nawaz Khan, it terminated before sale in favour of the vendee.

8. Section 31 of the Pre‑emption Act requires only actual physical possession by the vendee. That physical possession is clear from the entry in the khasra Girdawari. It is also clear from the various statements made by Fazal Ahmad vendor before the revenue officer before the final attestation of the mutation. Evidence of physical possession of the vendee prior to the attes tation of the mutation has been‑clearly established and limitation was in this case to run from the date of the physical possession which was undoubtedly earlier than the date of the attestation of the mutation. The suit was, no doubt, clearly time barred.

9. An attempt was made by the learned counsel for the petitioner to show that where the property sold is an undivided share in a joint holding, the share sold is not capable of physical possession and limitation runs from the date of the attestation of the mutation. For this view he relied on A I R 1923 Lah.

74. The facts of that case are entirely different from the facts of this case, but a proposition of the type laid down in that ruling cannot be accepted as. a proposition of law. A co‑sharer's share in an undivided holding is capable of the 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 and 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 new comer's right of entry into possession in the place of the original owner and if, as a result of the enquiry, 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. A sweeping proposition of the tenor that t he sale of an undivided share in a joint holding is not capable of physical possession is difficult to accept. In some cases it may be so. Each case depends on its own facts.

10. The two Courts below have come to a concurrent finding that the vendee entered into physical possession of the land sold before the attestation of the sale mutation and the suit was time barred. That finding has foundation in evidence. In view of that concurrent finding, this petition cannot be entertained and is dismissed with costs. K. B. A. Petition dismissed.