1985 PLP 1966 (SCMR)

M.S.H. QURAISHI, J.‑‑The only question arising for consideration in this petition for leave to appeal is whether the recital in the sale‑deed as to the delivery of possession is per se sufficient to constitute the starting point of limitation. 2.The sale deed had been executed on 20‑9‑1971. It was registered on 22‑9‑1971 and the suit was filed on 22‑9‑1972. The relevant recital in the deed was : The case of the petitioners/ vendees was that in view of the provisions of section 47 of the Registration Act and Article 10 of the Limitation Act, time began to run from the date of delivery of possession, which was 20‑9‑1971, when the sale deed had been executed, and that as such the suit was barred by time. The petitioners, however, remained unsuccessful in all the three Courts below.

3. After a preliminary hearing of the petition, on 12‑5‑1985, notice was issued to the respondents, in response to which Muhammad Ayub respondent No.1 has appeared.

4. Since the benefit of section 47 of the Registration Act is available only to the parties claiming under the document, learned counsel for the petitioners did not press the provision of that section but based his contention on Article 10 of the Limitation Act. He however, was unable to cite any case law to support that a bare recital in the sale deed was sufficient evidence to establish the factum of possession having been delivered under the sale such as to bind a third party. In Dharam Singh v. Kirpal Singh A I R 1923 Lah. 31 it was held that a formal recital as to the delivery of possession, like a formal recital as to the price, which is to be found in nearly every deed, would be a very weak evidence even between the parties to the deed and that the vendor cannot be deemed to have delivered possession by the mere act of executing the deed. In Mehr Bakhsh v. Maula Dad P L D 1951 Lah. 113 where the only evidence to support the contention that actual physical possession had been made over on the date of the execution of the sale deed was the recital in the deed and the delivery of actual physical possession had not been otherwise proved, it was held that the period of limitation must be computed from the date of registration of the deed. Similarly, in the case of oral sale, the mere reporting to the Patwari that the vendor has relinquished possession and that the vendee has assumed possession was, in Thakur Singh v. Karam Singh A I R 1925 Lah. 165, not considered as proof of the fact that there was a giving and taking of physical possession, the reason stated being that "The law insists on physical possession because physical possession is visible to all concerned. It is a notice to all would‑be preemptors that a change has occurred in the enjoyment and possession of the all s it, question and puts them to inquiry whether there has been a Able Admittedly, in the instant case there is no independent evidence of possession having been delivered of the under the physical sale. The view taken by the Courts below that the property terminus a quo for limitation was the date of registration is, therefore not open interference. 5.Learned counsel next submitted that the question of the Sale being exempt from the pre‑emption law, which was subject‑matter of issue No.14, had not been dealt with by the High Court, though the point had been duly raised in para.5 of the revision petition. It appears from the impugned judgment of the High Court that the only question involved and discussed, was of limitation. That being so, the attack against the finding on issue No.14 is deemed to have been abandoned during the hearing of the revision before the High Court and, therefore, the finding cannot be permitted to be re‑opened now. 6.In the result, the notice is discharged and the petition dismissed. M.I. Petition dismissed.