1989 PLP 1869 (CLC)

On issue No.4, the learned Additional District Judge found as follows:‑ "The defendant/appellant Muhammad Yusuf appeared as DW.7 and stated that he had constructed five houses before mutation was attested but the possession was passed on 12‑9‑1974 when the mutation was actually sanctioned. Therefore, it would be incorrect factually that appellant had assumed possession before attestation of mutation. The appellant had deposed that he built the rooms 6 or 7 years before he gave statement on 19‑7‑1971, that would mean since the mutation was sanctioned on 12‑9‑1974, construction had been completed before the defendants had purchased the property. The evidence on record, therefore, does not show that any improvement had been made after the sale."

7. In order to appreciate the respective contentions of the parties on the question of limitation it will be relevant to examine section 30 of the Punjab Pre emption Act which is as follows:‑ Section 30. "In any case not provided for by Article 10 of the Second Schedule of the Limitaiton Act, 1908, the period of limitation in a suit to enforce a right of pre‑emption under the provisions of this Act shall notwithstanding in Article 120 of the said Schedule, be one year:‑ (1)in the case of a sale of agricultural or of village immovable property, from the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such land or property, whichever date shall be earlier; (2)in the case of foreclosure of the right to redeem village immovable property or urban immovable property, from the date on which the title of the mortgagee to the property becomes absolute; (3) in the case of a sale of urban immovable property; from the date on which the vendee takes under the sale physical possession of any part of the property.

8. A bare analysis of Section 30 shows that it provides the period of limitation in respect of suit for pre‑emption which is not covered by Article 10 of the Limitation Act. It lays down the two dates for the purpose of computing limitation for suit of pre‑emption:‑ (i) the date on which the mutation of sale is attested by the Revenue Authorities; (ii) the date on which the physical possession of the land sold is taken by the vendee under the sale.

9. Section 30 lays down that if the land is susceptible of physical possession and the physical possession of land in dispute, is taken under the sale, then that date shall be taken as date of commencement for limitation.

10. As indicated above, section 30 places emphasis on the taking of physical possession under sale on the ground that the physical possession is visible to all concerned. The delivery of possession is noticed by all prospective pre‑emptors. The factum of simple reporting to Patwari that vendor has relinquished possession and the vendee has taken over the possession is no proof of giving and taking of physical possession within the meaning of Section 30 of the Pre‑emption Act.

11. The words "physical possession" under S.30 came under consideration before the superior Courts in a number of cases i.e. Thakur Singh v. Karam Singh and another AIR 1925 Lah. 165 and Dharam Singh v. Kirpal Singh and others AIR 1923 Lah. 31(2).

12. In Thakur Singh v. Karam Singh and another AIR 1925 Lah. 165 it was held: "As the law of pre‑emption requires strictly physical possession, Section 30 of the Pre‑emption Act is not satisfied by the mere reporting to the Patwari that the vendor has relinquished possession and that the vendee has taken the same up. The reason is that physical possession would be a notice to all would be pre‑emptors of the fact that the enjoyment and possession of the land has changed hands and puts them to enquiry, bacause physical possession is a thing which can be seen by anybody that wants to do so."

13. In Dharam Singh v. Kirpal Singh and others AIR 1923 Lah. 31(2), it was held that:‑ "The delivery of possession to vendee on the day of his purchase would be of no avail against the pre‑emptor, unless the possession delivered was physical possession. The mere delivery of symbolic proprietary possession would not be sufficient. In the second place a formal recital as to the delivery of possession, like a formal recital as to the price, which is to be found m nearly every sale‑deed, would be a very weak piece .of evidence even between the parties to the deed. The vendor cannot be deemed to have delivered possession by the mere act of executing the deed:"

14. In Murid Hussain and another v. Muhammad Shafi and another 1980 CLC 1753, the same principle was reaffirmed.

15. In the context of foregoing analysis and facts on the record it is very clear that the land in dispute was the part of joint Khata. It was not capable of physical possession. Even Fazal Dad defendant No.3 admitted that vendees were m cultivating possession of the land in dispute before the sale. No evidence has been given with respect to any conscious act of delivery of physical possession by which the prospective pre‑emptor could have a notice of change of possession, therefore, I do not find any force in the argument of the learned counsel for the petitioners on the question of limitation. The argument is, therefore, repelled. The finding of both the Courts below on issue No.l, therefore, is upheld.

16. Now I will proceed to examine the next contentions of the parties on the question of improvement. The argument of the learned counsel for the petitioners that the vendees are entitled to costs of improvement made before the C sale, is not tenable. The precedent reported as Mahmood‑ul‑Hassam and another v. Muhammad Sharif and another PLD 1970 Azad J&K 97 is on a distinguishable fact. In Narain Singh v. Emperor AIR 1926 Lah. 347 the High Court allowed the claim of costs of improvement made between the date of sale and the date of institution of the suit, on the ground that the vendees had no notice of the institution of the suit. In Topanmal Vassiomal and another v. Chanchalmal Samatmal and another AIR 1940 Sind 77, it was held that:‑ "It appears to me that logic and reason require that the term "transferee of immovable property" m Section 51, Transfer of Property Act, be so construed as to include a person to whom immovable property has been conveyed otherwise than as required by the provisions of the Transfer of Property Act, Sections 9 and 54, provided of course he fulfils the other requirements of Section 51. 1, therefore, agree with the Hon'ble the Judicial Commissioner that in the present case the respondents who are transferees of the property in question under an oral sale are entitled to the benefit of Section 51, T.P. Act, provided that they believed in good faith that they were absolutely entitled to the property m question."

17. Mahmood‑ul‑Hassan and another v. Muhammad Sharif and another PLD 1970 Azad J & K 97 is no authority for the proposition canvassed before me. In this case, Abdur Rashid executed an agreement to sell in respect of pre empted property on 22‑12‑1960. The entire sale price was received by the vendor who delivered the possession on the same date. The vendees got the agreement to sell completed through a consent decree of specific performance by the Civil Court. The sons of Abdul Rashid filed pre‑emption claim on 18‑1‑1965 in respect of registered sale‑deed. The vendees/defendants claimed costs of improvement in respect of construction of two houses and a garden which were between the date of agreement to sell and the date of institution of the suit. The learned Sub‑Judge disallowed the claim. The learned District Judge on appeal allowed the claim and remanded the cash to the trial Court with a direction to appoint a commission in order to determine the costs of improvement. The High Court upheld the order of first Court of appeal on improvement. The learned Judge observed as follows:‑‑ "The Law of Limitation, no doubt, gives a pre‑emptor a period of one year for the institution of a suit but it does not mean that he can sit leisurely for the whole year watching contemptuously the helplessness of the vendee and then file his suit say on the last day of the period of limitation. Of course, if the property remains unimproved, he can come even on the last day of the period of limitation and claim the property on payment of the sale price or the market value thereof but if the vendee has made any improvements during this period, then the pre‑emptor should not be allowed to turn back and say that since he had one year to bring the suit, he cannot be called upon to pay for these improvements. Similarly a vendee cannot be allowed to effect improvements in the property in anticipation of a suit for pre‑emption so as to burden the pre‑emptors with costs that may be unnecessary and burdensome for him. A vendee is under no obligation to stay his hands till the expiry of the period of limitation for improvement of the property purchased and he can as absolute owner of this property effect any improvements but if it is proved that he had knowledge or notice that a pre‑emption suit had been or was being filed and had done so in anticipation of the same so as to place unnecessary burden on the pre‑emptor, he cannot get this expenditure."

18. The rule emerging from the aforesaid authorities is that the vendees are entitled to costs of improvement made between the date of sale and the date of the institution of the suit, but the vcndees are not entitled to any costs incurred by them before making of the sale. In the context of the aforesaid rule it is very clear that the defendants have not established by any evidence that they have made improvement after making of sale and before the institution of the suit. DW.7 stated that they have constructed houses before the attestation of mutation. It is in evidence that the vendees/defendants had been in possession of the land in dispute before the date of sale. 1t is also in evidence that they have constructed a Katcha house before the sale but no evidence has come to the effect that these improvements were made after the date of sale and before the institution of the suit, therefore, I am clear in my mind that the vendees/defendants had failed to, establish their entitlement for the grant of expenditure incurred by them on any~ improvement. The finding by the first Court of appeal on issue No.4 is without any legal infirmity and reither suffers from any misreading of evidence nor non reading of evidence and therefore, it is not open to interference in the revisional l jurisdiction of this Court.

19. The revisional ,jurisdiction is the jurisdiction by which the errors of law,' and the errors of procedure relating to jurisdiction of Court are corrected. Obviously, the petitioners have failed to make out any case warranting the exercise of revisional jurrisdiction.

20. For whatever has been stated above I find no mcrit in this revision petition. This revision petition is accordingly dismissed with costs throughout. A.A./M‑1425/L Petition dismissed.