1988 PLP 2219 (CLC)

‑‑‑Ss. 4 & 15‑‑Limitation Act (IX of 1908), S.3‑‑Limitation‑‑Pre‑emption suit‑‑Limitation in pre‑emption suit, held, was to be counted from date of registration of sale‑deed and not from date of possession of land. Ch.Mushtaq Ahmad Khan for Appellant. Malik Muhammad Qayyum for Respondent. Date of hearing: 9th April, 1988. Facts giving rise to this regular second appeal are that the appellant, Muhammad Saqlain, filed a suit against the respondent, Muhammad Latif, for possession of certain land through pre‑emption. The suit was resisted by the respondent, inter alia, on the grounds that the appellant did not have a superior right of pre‑emption and that his suit was time‑barred. His pleas in this regard found favour with the trial Court. As a result, the suit was dismissed. The appellant went in appeal before an Additional District Judge but in vain. He has, therefore, come up in this regular second appeal.

2. The appellant claimed superior right of pre‑emption on the ground that he was an owner of the estate. In reply, it was submitted by the respondent that he too possessed the said qualification and thus the appellant did not have a right of pre‑emption against him. It was urged by learned counsel for the appellant that the property purchased by the respondent on the basis, whereof he claimed to be the owner of the estate, was a street and as such he could not be equated with the appellant. In this connection, learned counsel for the respondent invited my attention to copy of sale‑deed, Exh.D.2, and copy of mutation, Exh.D.7, in which the property purchased by the respondent is described as the land irrigated by well. In view of these documents I am unable to agree with the learned counsel for the appellant that the property with the respondent is not land for the purpose of making him an owner of the estate. In this view of the matter, no legitimate exception can be taken to the concurrent finding of the learned lower Courts on the issue relating to the right of pre‑emption.

3. Learned counsel for the appellant also assailed finding of the learned lower Courts on the issue of limitation. View taken by the two Courts below was that the respondent got possession of the disputed land in 1972 and since the suit was filed by the appellant in 1975, it was time‑barred. In this connection, it was urged by the learned counsel for the appellant that there was nothing on the record showing that it was in 1972 that the respondent got possession of the land in dispute under the sale pre‑empted by the appellant. The period of limitation would, therefore, run from the date of the registration of the sale‑deed, by which the above land was purchased by the respondent. It is not disputed that the suit of the appellant was within time with reference to the date of registration of the sale‑deed. The only evidence of sale in this case is the registered sale‑deed, copy Exh.P.l. It is not the case of the respondent that before execution of the said sale‑deed there was an oral sale of the disputed land in favour of the respondent. Therefore, if the respondent was in possession of the land in question, before the execution of the sale‑deed, in any capacity other than that of a vendee, it would not be treated as possession under the sale and as such it would have no bearing on the question of limitation. As indicated above, the suit was within time with reference to the date of registration of the sale‑deed. Findings of the learned lower Courts on the issue of limitation are, therefore, not sustainable ‑and are, accordingly, reversed.

4. No other point was canvassed by learned counsel for the appellant.

5. Since I have not found any fault with the concurrent finding of the learned lower Courts to the effect that the appellant did not have a superior right of pre‑emption, the dismissal of his suit cannot be helped. This regular second appeal, therefore, fails. It is, accordingly, dismissed with no order to costs. M. Y. H./M‑726/L Appeal dismissed.