P L D 1963 Azad J & K 75 (PLP)

To enforce a right of pre‑ One When the purchaser takes, emption, whether the year under the sale sought to right is found on law be impeached physical or general usage, or on possession of the whole special contract. of the property sold, or, where the subject of the sale does not admit of physical possession, when the instrument of sale is registered. There are two clauses the teminus‑a‑quo under the first clause, time runs from the date when the purchaser takes under the sale sought to be impeached physical possession of the whole of the property sold and the second part comes into play only where the subject of sale does not admit of physical possession, and time runs from the date when the instrument of sale is registered. Learned counsel for the vendee appellant has argued that his case is covered by part first of the terminus‑a‑quo provided in Article

10. He has cited A I R 1947 All. 252 and A I R 1950 All.

290. The contention of the learned counsel for the pre‑emptor res pondent is that the second part of column 3 of Article 10 governs the case and time of one year would run not from the date of taking of physical possession but from the date of registration. He has relied on A 1 R 1952 (sic) Lah. 152 and A I R 1924 Lah. 302 and

695. There is also a D. B. case of our own High Court reported as P L D 1959 Azad J & K 1, in which case the judgment was written by me and with which my learned brother Mr. Justice Khan Abdul Hamid Khan agreed. It was laid down in this ruling that we have 3 provisions of law determining limita tion in pre‑emption suits. Para. 2, page 3 is reproduced below :‑ "We have three provisions of the law determining limitations in pre‑emption suits. One has first to look to Article 10 of the Limitation Act ; failing that to section 29 of the Right of Prior Purchase Act (corresponding to section 30 of the Punjab Pre emption Act) and failing that to Art. 120 of the Limitation Act. The first thing which we have to find under Article 10, is whether the whole of the property sold admits of physical possession by the purchaser at the time of the sale ? If it be so, then the limitation is one year from the date when the physical possession of the whole of the property is taken by e the vendee under the sale. If the whole of the property does not so admit of physical possession, then we have to see whether the deed of sale has been registered ? If registered, the limitation is one year from the date of registration. When both the above‑mentioned alternatives fail, i.e., neither the whole of the property admits of physical possession by the purchaser at the time of sale nor is the instrument of sale registered, then section 29 of the Right of Prior Purchase Act will be looked to which provides that limitation shall be one year in the case of a sale of agricultural land or of immovable property, from the date of attestation of the sale by a Revenue Officer having jurisdiction in the register of muta tions maintained under the Land Revenue Act. If there is no mutation attested, then we have to fall back upon the residuary Article 120 of the Limitation Act, which provides six years from the date when the right to sue accrues." It was held by Bennet, J. in A I R 1947 All. 252 that where physical possession is obstained by the vendee after the execution of the sale‑deed ‑and before regiseration in suit for pre‑emption time runs from the date of the delivery of the possession and not from the date of the registration. Malik, C. J. and Wali Ullah, J. laid down in A I R 1950 All. 290 that it is neither necessary nor Article 10 requires that the sale deed should be registered before the vendee is put in possession .to enable the vendee, to claim that he was put in possession of the property under the docu ment. Hence, in the case of property which can be transferred only under the registered sale‑deed, where the vendee was put in possession of the property on the basis of the sale‑deed, it cannot be urged that the vendee did not get possession of the property under sale merely because the sale‑deed was registered on a subsequent date. They, therefore, held that where the vendee enters into possession after the execution of the sale‑deed, but before its registration, time would run from the date of pos session and not from the date of registration. It was held by Moti Sagar, J. in A I R 1925 Lah. 152 (2) that where the vendee is already in physical possession as lessee of the land sold, possession under the sale cannot pass before the mutation is sanctioned, hence time for suit for pre‑emption begins to run only from the date when mutation is effected and not before. Shadi Lal, C. J. and Fford, J. laid down in A I R 1924 Lah. 302 that property which is in possession of a tenant does admit of physical possession within Article 10 where on the date of sale the property was in the possession of a tenant, held that the subject‑matter of the sale did not admit of physical possession and that the second part of the Article prescribed the rule of limitation applicable to this case. Martineau, J. held in A I R 1924 Lah. 695 that where a vendee was already in possession of the land in suit before the sale as a lessee he should not be deemed to have taken possession of the land under the sale when the sale was effected. It is impossible for a person to take physical possession of property of which he has already got the physical possession and consequently time must run from the date of mutation under section 30 of the Pre‑emption Act. The learned Judge followed 1922 Lah.

210. The vendee‑appellant was admittedly in possession of the suit land even before the sale took place, as a tenant. To apply Article 10 possession taken by the purchaser should be under the sale sought to be impeached. Where at the time of sale the vendee was already in physical possession (in his capacity as a tenant) of the property purchased by him, under the circum stances it was impossible for him, in the nature of things to take physical possession under the sale within the meaning of Article

10. As observed by me in P L D 1959 Azad J & K, 1, the first thing which we have to find under Article 10, is whether the whole of the property sold admits physical possession by the purchaser at the time of sale 7 If it to be so, then limitation is one year from the date of the physical possession of the whole of the property taken by the vendee under the sale. If the whole of the property does not so admit of physical possession, then we have to see whether the deed of the sale had been registered. If registered, the limitation is one year from the date of registration. In the present case before me, the vendee was admittedly in physical possession of the land sold, in his capacity as a tenant. He cannot be said to have again taken physical possession of the property sold in his favour under the sale, of which he was already in physical possession even before the sale. There is no dispute with the rule of law enunciated in the authorities cited by the learned counsel for the vendee‑appellant but in both these cases the vendee was not already in possession but had entered into possession under the sale though before the date of registra tion. Both these cases are distinguishable. I agree with Shadi Lal, C. J. and Fford, J., when they say that the property which is in possession of a tenant does not admit of physical possession within Article 10 Limitation Act and under part second of Article 10 where the property sold does not admit of physical possession time would run from the date of registeration. The cases decided by both Moti Sagar, J. and Matineau, J. reported respectively as 1925 Lah. 152 (2) and 1924 Lah. 695 apply to the facts of the case before me. In both these cases the vendee was already in physical possession as lessee of the land sold and it was held that time of one year would commence not from the date of taking pos session but from the date of mutation. I have remarked in P L D 1959 Azad J & K 1, that where both the alternatives mentioned in Art. 10 Limitation Acts fail, i. e. neither the whole of the property admits of physical possession at the time of sale, nor the instrument of sale is registered, then section 29 of the Right of Prior Purchase Act which corresponds to section 30 of the Punjab Pre‑emption Act will be looked to which provides that limitation shall be one year in the case of a sale of agricultural land or immovable property, from the date of attestation of the sale by the Revenue Officer having jurisdiction in the register of mutation maintained under the Land Revenue Act. In the present case before me there is a registered deed, therefore, we need not go to section 29 of the Right of Prior Purchase Act and limitation of one year would run from the date of the registration of the sale‑deed. I hold that the vendee having been in possession as a tenant even before the date of sale, the property did not admit of physical possession, hence limitation would run from the date of registration. The sale deed was registered on 7‑12‑1954 and the pre‑emption suit was instituted on 7‑12‑1955, therefore, it is within time. The appeal fails and is dismissed with costs. K. B. A. Appeal dismissed.