P L D 1959 (W (PLP)

Respondent No. 2 : Ex‑parte. Date of hearing : 5th June, 1959. By three unregistered sale deeds executed on 17‑2‑1941, 4‑2‑1942 and 4‑3‑1943, one Jamal sold an area of 3 Kanals and 14 , Marlas to Hamzullah for a sum of Rs. 369/8/0 and these sales were pre‑empted by Jamil Khan and Balos by a suit instituted on 5‑3‑1953. The suit was dismissed by the Additional Sub‑Judge, 1st Class, Peshawar by his judgment dated 18‑6‑1955, on the ground that it was time barred. On appeal, that decision was affirmed by the District Judge by his judgment dated 12‑11‑1955. The pre‑emptors have now come to this Court on revision and the only point argued here is whether the suit was within or beyond time. Pre‑emption suits are governed by Article 10 of the Limitation Act which prescribed a period of one year for the enforcement of the right of pre‑emption from the date: " (a) When the purchaser takes, under the sale sought to be impeached, physical possession of whole of the property sold," or " (b) where the subject of the sale does not admit of physical possession, when the instrument of sale is registered." In this case the sale were not evidenced by a registered document and the second part of Article 10 is not applicable. The first part of it is also not applicable because the purchaser was unable to take physical possession of whole of the property under the sale. This property had been under mortgage with the purchaser since long before the sale and he was already in possession of it as mortgagee. The property sold was for this reason not capable of physical possession. In fact what was sold was the equity of redemption, which according to the view of law pronounced in several judgments, is not capable of physical possession.

3. It is now well‑settled that when Article 10 of the Limita tion Act has no application either because the sale was not effected by a registered document, or possession was not taken under the sale. Article 120 of the Limitation Act which is a residuary Article would apply. See 160 Pb. R 1889. According to that Article a suit is within time if it is instituted within six years from the date "when the right to sue accrues". The two Courts below have held, and correctly no doubt, that Article 120 applies to this case and, counting the time from the dates when the sales took place declared the suits as time barred.

4. In this Court it has been contended on behalf of the pre‑emptors that since the sale was by means of unregistered documents and the property was not capable of physical possession, the right to sue did not accrue to the pre‑emptors from the dates of the sales but from the date when the sales became known to them. It was said that a suit in respect of this property was instituted against the vendees in 1952 and from their written statements filed in the Courts on 8‑3‑1952, it transpired that they had purchased this land. It. was only then that these sales came to the knowledge of the pre‑emptors and this suit which‑was instituted on 5‑3‑1953 is within time, under Article 120 of the Limitation Act. The point in controversy between the pre‑emptors and the purchaser is whether the period of limitation under Article 120 should be counted from the date of sale, or from the date on which the sale came to the knowledge‑ of the pre‑emptors.

5. On behalf of the purchasers it has been urged that the period of six years under Article 120 of the Limitation Act is to be counted from the date on which " the right to sue accrues". The right to sue to enforce a right of pre‑emption accrues according to his contention from the date of the sale. He says that according to section 4 of the North‑West Frontier Province Pre‑emption Act, 1950, right of pre‑emption arises from sale and as sales in this case took place on 17‑2‑1941, 4‑2‑1942 and 4‑3‑1943, the period of six years prescribed under Article 120 of the Limitation Act should run from the dates of the sales. In that event suits fell under the bar of time on 17‑2‑1947, 4‑2‑1948, and 4‑3‑1949, respectively. In support of this view he relied on 93 J R 1917. In that case the land was sold by an unregistered deed in 1905, but possession was not taken under the sale because the property was in the possession of occupancy tenants. The purchaser acquired occupancy rights from the tenants in 1907 and entered into possession in 1907. The pre‑emptor acquired knowledge of the sale, like here when in another suit instituted in 1916 the fact of sale was disclosed. The sale was pre‑empted in 1916, within a month of the knowledge of the sale but it was held to be time barred under Article

120. The learned Judge who pronounced the judgment held that the right to sue had accrued in 1905 under the sale effected in that year and the period of six years under Article 120 of the Limitation Act ran from the date of the sale and the suit had been under the bar of Limitation since 1911.

6. The learned counsel for the pre‑emptors contended that the underlying principle in selecting two events mentioned in Article 10 of the Limitation Act on the happening of which time is to run for purpose of pre‑emption is notice of the sale to the people interested in the sale, so that those who intend to enforce their right of pre‑emption may be able to do so within a year of any of those two events. Those two events are taking physical possession of the land sold, and registration of the instrument by which the sale has been effected. There is an element of publicity and notice both in the physical possession of the property and registration of the instrument of sale. In support of that con tention he has relied on a few reported cases. There can be no dispute with the proposition that in selecting these two events notice to the pre‑emptors was in view. But that proposition is not of any service to the pre‑emptor in this case. He will succeed only if he succeeds in establishing that in the third column of Article 120, the phrase "when the right to sue accrues", means in circumstances like those of the present case not the date when the sale took place but the date when the sale came to the pre‑emptors knowledge. He relied on A I R 1931 Lah. 70 which is an authority for the proposition that when a suit is instituted to enforce a right time will run under Article 120 of the Limitation Act, from the date when the circumstances giving rise to his right come to his knowledge. That was a suit instituted by a creditor against an alienation made by a debtor to defraud his creditors by placing his property beyond their reach. The alienation was made by a mutation in favour of the sons. That alienation came to the knowledge of a creditor long after it was effected. It was held that Article 120 of the Limitation Act applied and the period of six years to challenge the alienation ran from the date on which the alienation came to the knowledge of the creditors.

7. That authority has no application here because there was an element of fraud in the alienation and the right to sue accrued when the fraud came to the knowledge of the plaintiff. No fraud has been imputed in this case to the purchaser.

8. If Article 120 of the Limitation Act is held to be applicable as it is in this case then the language of that Article will have to be followed. The language of that Article says that time will run from the date on which "the right to sue accrues." The right for the enforcement of pre‑emptive right accrues from the sale and the time should run from the date of the sale not when the sale comes to the knowledge of the pre‑emptor.

9. It is beyond dispute that in a suit for pre‑emption the right to sue accrues from the sale. The two events mentioned in 10 of the Limitation Act, possession under the sale an the instrument of sale, also point to sale as the source of the right. It is, therefore, the sale and not the; knowledge of the sale which is the foundation of the right. If the; knowledge of the sale is held to be at the root of that right, them period of limitation for suits for pre‑emption would be considerably prolonged, and the purchasers would remain under the, sword of pre‑emption for an indeterminate period. There may be perhaps some justification for pleading knowledge of the sale for the purpose of limitation under Article 120, if by any fraud on the part of vendor and vendee actual sale is concealed from, the view of the people but not otherwise.

10. Right to sue in a pre‑emption suit accrues from the date of sale and as sales in this case took place in 1941, 1942 and 1943, suits became barred in 1947, 1948 and 1949. The finding of the two Courts below on the point of limitation are correct in law and have the support of 93 J R 1917. This revision application is dismissed with costs. K.B.A. Petition dismissed.