1980 PLP 152 (CLC)

Karam Dad and another v. Ali Muhammad and others 31 P R 1913 gel. Sirl Thakar Ji Maharaj and another v. Sujjan Singh and another ,4 I R 1939 All. 158 ref. Shamim Abbas Bokharl for Appellants, M. A. Gohar for Respondent No.

1. Date of hearing : 21st February,. 1979. The only point involved in this second appeal from the concurrent decisions of two Courts below in a suit for possession by pre-emption is one of limitation.

2. Mst. Sharifan Bibi sold her share in the land in a joint khatas spread over several khasra numbers in favour of Muhammad Hanif respondent (2) by means of mutation attested on 25th of August 1969 (P-5). Barkat, respondent (i) filed suit on 4th of June 1970 to pre-empt the sale impleading Muhammad Hanif vendee as the sole respondent. Abdul Majid appellant (1) appeared before learned Civil Judge on 15th of September 1970 to represent informally that Muhammad Hanif the original vendee had already transferred the land in favour of the appellants in recognition of their superior rights of pre-emption. On 14th of January 1971 Barkat respondent (1) applied for amendment of plaint so as to implead the appellants as defendants - in the suit. The application was accepted same day and amended plaint was filed on 21st of January 1971. The appellants resisted the suit denying the pre emption right of Barkat respondent (1) and also pleaded limitation. The respondent was eventually adjudged to have superior right for purchase of land qua the appellants. The plea of limitation raised by the appellants was turned down with the view that suit for possession through pre-emption against subsequent vendee was governed by Art. 120 which provides a period of six years. Consequently, the suit was decreed in favour of respondent No. 1 on payment of Rs. 10,000, the recorded sale price. Findings of learned trial Judge only on the issue of pre-emptive rights of respondent No. 1 were challenged unsuccessfully in appeal before learned District Judge. Learned counsel for the appellants conceded that the decision of superior rights of the pre emptor was a decision on a question of fact which could not be challenged or displaced in second appeal. The question of limitation alone has been reagitatsd on the side of the appellants. It should be conceded that there is no bar against raising the point of limitation in second appeal although abandoned in first appeal before learned District Judge

3. Learned counsel for the appellants argued that the original vendee, respondent No. 2 had transferred the land in favour of the appellants long before expire of limitation of one year by means of mutation attested on 27th of January 1970 (D 3). The appellants were necessary parties inasmuch as the suit could not proceed in their absence. Decree in favour of Barkat respondent (1) without impleading the appellants should have been inexecutable in law. The suit was liable to be dismissed on the score of limitation as the appellants were impleaded as defendants after expiry of limitation of one year which has to be counted from 25th of August 1969 the date of original sale of land by the vendor in favour of Muhammad Hanif respondent (2). The contention does not have the least force in it. There are three provisions bearing on the question of limitation in suits for possession by pre-emption. Article 10, Limitation Act which prescribes period of limitation of one year is attracted where the whole of the property sold admits of physical possession by the purchaser at the time of sale. If the property does not admit of actual possession, then limitation is from the date of registration. This article does not apply to the instant case as the property which was a part of joint khata did not admit of physical possession nor the sale was evidenced by registered document. The next provision will be section 30 of the Punjab Pre-emption Act to be looked into which also provides limitation of one year for suit of pre-emption for agricultural land or of immovable property to be reckoned from the date of attestation of mutation. The suit was filed by Barkat respondent (31 P R 1913) against the original vendee within the period of limitation. The suit of the respondent had reference to the first sale. Right of pre -emption had accrued to him in respect of that sale to which the appellants (subsequent vendees) were not party. Article 120 will apply in case of re-sale although made by the original vendee during the period of limitation,, of one year. It will be unnecessary to dwel on the point any further as it stands decided by judgment of higher authority. Precisely, this point was considered in a Full Bench judgment of Punjab Chief Court in Karam Dad and another v. Ali Muhammad and others (1). It was held that suit against subsequent vendee was governed by article 120 and the starting point of limitation was the date of re-sale by the first vendee. This judgment was followed by Allahabad High Court in Siri Thakar Ji Maharai and another v. Sujjan Singh and another (A I R 1939 All. 158).

4. In the result, I hold that the question of limitation was rightly decided by the learned trial Judge. The appeal is dismissed. K. M. A. Appeal dismissed.