1999 PLP 897 (SCMR)

ABDUR REHMAN KHAN, J.

This appeal arises with leave of the Court against the judgment of a learned Judge of the Lahore High Court passed on 13-5-1992; whereby, the revision petition filed by the appellant impugning the legality of the judgment and decree of the Appellate Court and requesting for restoring that of the trial Court was not acceded to.

2. The factual aspect of the case is that Atta Muhammad, since dead and represented by the respondents, pre-empted the sale brought about by Mutation No.38 sanctioned on 27-3-1974 in favour of the appellant/vendee asserting superior pre-emptive right on the ground of being owner in the estate and also being collateral of the vendor. The learned trial Judge by judgment, dated 24-3-1976 although held that the plaintiff was possessed of superior right of pre emption being the owner in the estate but dismissed the suit as having been filed beyond one year from the date the vendee took possession under the sale. Plaintiff/respondents impugned the correctness of this judgment in the Appellate Court and the learned Appellate Court while holding the suit within time accepted the appeal, reversed the judgment of the trial Court and, accordingly, decreed the suit. The judgment of the Appellate Court was affirmed in revision.

3. The learned counsel appearing for the appellant submitted that the stand of the appellant that he took possession of the suit land on 6-2-1974 is proved from the receipt Exh.D.1 wherein the vendor admitted receipt of sale price through draft and handing over of possession to the vendee. He also referred to Exh.D.2 of the same date to show that one Ghulam Mustafa, a tractor driver, received Rs.450 from the appellant for the charges of ploughing tractor in the disputed fields. He was also critical of the fact that the Appellate and High Court discarded the statements of the witnesses examined by the appellant in spite of the fact that these went unchallenged in cross-examination. The learned counsel in the end referred to judgment reported in Niaz Ahmad and others v. Mian Abdul Rahman and others (PLD 1961 (W.P.) Baghdad-ul-Jadid 1) and Fiaz Bakhsh through Legal Heirs and others v. Faqir Muhammad and others (1997 SCMR 1617) to support his view-point. On the other hand the learned counsel for the respondents supported the impugned judgment and referred 'to para.3 to show that the entice evidence on the case file had been discussed had that no misreading or non-reading could be pointed out from the appellant's side. He submitted that there was no entry about the possession of the appellant/vendee in the revenue record and that there was no proof of any overt act which might prove that the vendee took actual possession of either the cultivated land or barren one under the sale.

4. The decisive point in the appeal is, as to whether the appellant has been able to prove that he obtained physical possession of any part of the disputed land under the sale. This point has been discussed by the appellant Court and the High Court both concurred against the plea taken up by the appellant as it was held that the evidence on record fell much short of establishing this fact. The dispute in the appeal is, thus, confined to factual controversy and as no over-looking of any evidence or misreading of any evidence was referred to, therefore, no justification could be shown for interference in the agreed decision of the said Courts and on this count this appeal is liable to dismissal.

5. However, as the learned counsel for the appellant raised certain contentions about physical possession and its effect over the running of period of limitation we deem it proper to deal with these submissions. Period of limitation for filing pre-emption suit about agricultural land or village immovable property as provided under section 30 of the old Punjab Pre-emption Act, 1913, was one year from the date of attestation of sale by Revenue Officer or froth the date on which the vendee took over possession under the sale of any part of the land sold. As against this section 10 of the Limitation Act fixes the period of limitation for such a suit at one year starting from the date on which the vendee takes over physical possession under the sale of the whole of the property sold. However, where the subject-matter of the sale does not admit a physical possession then this period of one year is to be reckoned from the date of registration of sale-deed. The distinguishing feature in the two provisions is that under the former, physical possession of even a part of the land sold would given start to the period of limitation whereas under the latter, period of limitation would only run if the purchaser obtains physical possession of the whole of the property which is the subject-matter of the sale. The purpose behind the start of period of limitation from the actual taking over of possession is that it serves as a notice to the prospective pre-emptor that the person taking over possession of the land has attained some interest therein. The factum of taking of physical possession is, therefore, to be proved by visible, tangible and convincing evidence. This kind of evidence is not available in the instant case. The appellant has relied on documentary evidence contained in EXhS.D.I and D.2 to prove his actual occupation of the suit land. In the former the appellant admits receipt of bank draft of Rs.50,000 as sale consideration and the last line inserted therein reads "'. The latter document Exh.D.2 is a receipt by one Ghulam Mustafa acknowledging receipt of Rs.450 from the vendee as charges of ploughing tractor. It is, thus, obvious that mere acknowledgement of receipt of certain amount in a document or the recital therein of having obtained possession could hardly serve the purpose of law as it cannot be considered a notice to those who intend to pre-empt the sale. Although it may be of some help between the parties but can neither bind the stranger nor affect his interest. The veracity of the document Exh.D.2 could also not be established as Ghulam Mustafa, the tractor driver, could not be produced and the testimony of the marginal witnesses to this document falls much short of proving the correctness of its contents. The learned Appellate Court and the High Court have discarded their evidence for valid reasons and we need not discuss it in detail. The oral evidence examined by the vendee to prove his physical possession is also not so convincing and tangible so as to hold that the purchaser took physical possession of the disputed property. On the other hand the statement of P.W. Allah Ditta who was admittedly tenant of the cultivated portion of the land and had been recorded as such in the Revenue Record negates the claim of the possession of the vendee and this evidence being more authentic in the circumstances of the case as against the one produced by the pre-emptor, has rightly been believed by the Courts. The submission of the learned counsel for the appellant was that major portion of the disputed land in 'Banjar Qadeem', therefore, the purchaser having become its owner is to be presumed in possession of it as possession over such a land is considered as that of real owner. It was clarified that 'Banjar' land being part of the land sold and the appellant under the legal presumption would be deemed to be in its possession, therefore, this should be considered as possession in terms of section 30 of Punjab Pre-emption Act, 1913, and period of limitation should be counted from it. This submission over looks the clear provision of section 30 of the said Act and section 10 of the Limitation Act where the date of taking of physical possession of the land covered by the sale is to be reckoned as starting point for period of limitation and not the possession which under the legal presumption would be deemed to be that of the real owner of the barren land. The purpose of giving start to period of limitation from the date of physical possession as envisaged in the said sections of law is that there must be some positive overt act which is to be established by affirmative evidence to show that actual possession of the land on the spot has been taken either by ploughing or raising wall or hedges around it or by any other visible act which may become notice to those interested in the land by exercising their pre-emptive rights over it. This purpose cannot be achieved by raising the above legal presumption. It appears that the learned counsel had not thoroughly studied the judgment reported in PLD 1961 (W . P.) Baghdad-ul-Jadid 1, as it in substance goes against the point raised by him and rather supports the respondents. Similarly reliance on 1997 SCMR 1617, is also misplaced as it proceeds on different facts than the present case. The appeal is, therefore, dismissed with costs. H.B.T./B-22/S Appeal dismissed.