P L D 1953 Peshawar 68 (PLP)

MUHAMMAD SHAFI, J:‑By mutation No. 4937, attested on the 20th of December 1949, Guldad Khan sold 49 karals 8 marlas of land, bearing Khasras Nos. 978, 3060/977, 987 and 988,situated in village Daraki, in favour of Sahib Jan Khan, for an ostensible price of Rs.

988. This sale gave rise to a pre‑emption suit by Muhammad Nawaz Khan, who claimed to get the property in the exercise of the above right on payment of Rs. 400, which amount he said was in fact fixed and paid. He claimed his superior right of pre‑emption on the ground that he was a close relation of the vendor and also held property adjacent to the property in dispute. The suit was very hotly contested by the vendee. A pre liminary point was raised that the point was not properly presented. It was decided against the defendant‑vendee on the 7th of April 1951, after which the following six issues were framed in the case :‑ (1) Whether the suit is within time ? (2) Whether the plaintiff has waived his right of pre emption ? (3) Whether the plaintiff has a preferential right of pre emption ? (4) Whether the sum of Rs. 988 was paid or fixed in good faith ? (5) What is the market value of the suit land ? (6) Relief. On issue No, 1, the learned trial Judge found that the vendee had taken possession of the suit land in April 1949, and the suit having been brought more than one year after that date was barred by time. On issue No. 2 he observed that the learned counsel for the vendee had conceded that he had not been able to establish it by any evidence on the record. The learned trial Judge agreed with him and decided this issue in the negative. On issue No. 3, he arrived at the conclusion that the plaintiff had a preferential right of pre‑emption. Issue No. 4 was decided in the negative. Discussing issue No. 5, he found the market price of the land to be Rs. 645‑4‑

0. In the end having having decided issue No. 1 against the plaintiff, he dismissed the suit with costs. There was an appeal against this order, which was accepted by the Senior Sub‑Judge, Dera Ismail Khan, on the 8th of Feb ruary 1952, who only discussed issue No. 1, and holding the suit within time, decreed it in favour of the plaintiff on payment of Rs. 645‑4‑

0. The vendee has come up in revision to this Court, and the only question, which has been argued before me is that of limitation. It is agreed by the learned counsel appearing for the parties that section 31 of the North‑West Frontier Province Pre‑emption Act XIV of 1950, applies to the case. Under this section the limitation for bringing a suit to enforce a right of pre‑emption has to be one year in the case of a sale of agricultural land from the date of the attestation 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 taken under the sale physical possession of any part of such land or property whichever date shall be the earlier. The question boils down to this : Is it established in this case that the vendee took physical possession of any part of the property in suit earlier than the date when the mutation in his favour was attested. In order to arrive at a final decision on this point, the history as to how mutation No. 4937 was attested must be gone into. This mutation was entered by the patwari on 19th April 1949 on a report made to him by Sahib Jan vendee that the property had been sold to him for Rs.

988. It came up for attestation before the Revenue Officer on 19th September 1949. Guldad appeared before him, and he admitted that the property had been sold to the vendee. The Revenue Officer, however, in spite of this admission did not attest this mutation ; on the other hand he postponed the attestation for comparison of certain papers by the Girdawar. Finally the mutation came up for consideration an 20th December 1949, when on the basis of the statement already recorded, the mutation was attested in the name of Sahib Jan vendee. The vendee's case is that he took possession of the property immediately when the transaction was completed, which was in April 1949, or in any case he claims he was in possession of the property on the date when for the first time the mutation came up for consideration before the Revenue Officer that is to say, on 19th September 19.19. The case of the pre‑emptor on the other hand is that the vende did not take physical possession of the land under the sale, and, therefore, the limitation should start running from the date of the attestation of the mutation. Guldad, the vendor, appeared in the witness‑box as the plaintiffs witness. He is obviously siding with him. So far as the question of delivery of possession is concerned, he admitted that he delivered possession of the land in suit to the vendee immediately after the bargain was struck. it is not difficult to find as to when was the bargain struck. It must have been before the mutation was entered by the patwari, which was on 19th April 1949, or in any case before he appeared before the Revenue Officer on 19th September 1949, and admitted the correctness of the bargain. According to his evidence then, the plaintiff should have brought the suit within one year of 19th September 1949, while the suit was actually brought on 18th December 1950. It is then definitely more than one year after the delivery of the possession. It need hardly be said that the plaintiff is bound by the statement of Guldad, for the reason that he appeared as his witness. Apart from the statement of Guldad, there is the evidence of Mohkam Din (P. W. 4), who admitted that it was two years prior to the date ‑when he was making the statement that in the month of Har, he cultivated the land in dispute on behalf of the the vendee. This statement was made in May 1951. It is, thus, clear from his testimony that he cultivated the land on behalf of the vendee in the month of June 1949. If the time is to be reckoned from this date, the plaintiff's suit will be hopelessly barred by time. The plaintiff is, as in the case of Guldad vendor, also bound by the evidence of this witness. In addition to this evidence there is the statement of the defendant vendee himself, who stated that he cultivated the land, through lab3urers and also had constructed the boundaries etc. round the field in dispute immediately after the bargain was struck. The learned lower appellate Judge has given a very strange definition of the physical possession. He seems to be of the opinion that if a person takes possession of a certain land by attornment to him of the possession by a tenant already in possession, or by substituting his own tenant for the previous one, or if the land, prior to the sale, was cultivated by the owner himself, by engaging any tenant for that land and getting it cultivated through hint, or takes the possession of the land by employing labourers, all this clay constitute symbolic or constructive possession, but certainly not physical possession in the sense as contemplated by section 31 of the North‑West Frontier Province Pre‑emption Act. I have no quarrel with the observations made by the learned lower appellate Court in its judgment that the words "physical possession" used in the above section mean such a possession which gives notice to the world that the former owner has parted with the property and the second owner has been substituted for him at the spot. It may be said with some justification, although I do not feel sure about it, that if a tenant already in possession of a certain property attorns to the new owner the world does not have the notice of the change of the owners, but in cases where the new owner substitutes his own tenant for the old one, or in the land cultivated by the old owner himself he appoints a new tenant to cultivate it, or employs labourers, and through them works on the land purchased, why can't it be said that the world hah notice of the fact that the old owner has changed and the new owner has taken his place. In any case, a person living in the same village, or a relation of the vender cannot possibly set the absence of his knowledge about the change of the ownership In my view if a person takes the possession of the land by appointing his own tenants or through the labourers engaged by him he takes physical possession of that land in the sense of the word' used in the section, because the vendor by agreeing to this conduct of the vendee divests himself in praesenti of the property sold and confers it upon the vendee. These acts on the part of the vendee are the sure evidence of the fact that he legally enjoys the property to the exclusion of all others. There can possibly be no better instance of taking physical possession of immovable property than the one discussed above. If it is suggested that taking physical possession of the property one means that a person himself goes to the land and tills it without the assistance of anybody else, it will lead to some very ridiculous and absurd con sequences. It will in that case be very difficult for anybody take physical possession of fans which are considerable in area and one man cannot possibly possess them in the above sense. In the case before me the vendee according to the evidence produced by the plaintiff himself tilled the land through the labourers employed by him, and in my view by doing that he took physical possession of the property in June 1949. Reckoning the time from that date, the suit was brought much after the expire of one year. I am consequently of the opinion that the plaintiff', suit was hopelessly barred by time and was rightly dismissed by the learned trial Court. The result is that I accept the revision petition, set aside the judgment and decree of the learned lower appellate Court ants restore that of the learned trial Court with costs throughout. Orders announced. A. H. Petition accepted