P L D 1967 Lahore 378 (PLP)

2. The sole question which falls for determination is whether the suit for pre‑emption which was brought by the respondent pre‑emptor against the appellant was barred by limitation or not, under Article 10 of the First Schedule to the Limitation Act, 1908 which governs the case. Learned counsel for the appellant admitted that section 30 of the Punjab Pre emption Act was not applicable as the sale was witnessed by a registered deed. The relevant facts to determine the question of limitation are these: The suit land was sold by a deed which was executed on the 15th of July 1960. It was presented for registration on the 6th of December 1960 and was actually registered on the 28th of March 1961. Respondent Abdul Hamid instituted his suit for pre‑emption against the appellant vendee on the 24th of March 1962, claiming that the period of limitation begins to run against him with effect from the date of the registration of the deed, viz. 28th March 1961.

3. Learned counsel for the appellant submitted that the land in dispute was already in possession of the vendees as they had actual physical possession of the land, even before the sale, in their capacity as mortgagee with possession and, therefore, the period of limitation should be considered to run against them from the 15th of July 1960, the date of the execution of deed and not from 28th March 1961, the date of the registration. It was conceded that if the period of limitation begins to run from the date of the registration than the plaintiff pre‑emptor's suit will be within time but since the actual physical possession of the land was already with the vendees they should be deemed to have taken physical possession of the whole of the property sold on the date when the sale deed was executed and not from the date of registration. In support of his contention reliance was placed on Ram Peara v. Rup Lal and others ((1918) 80 P R (53) 209).

4. I have heard the arguments of the learned counsel at length and have carefully examined the authority cited by him in support of his contention. But‑ this authority goes counter to the proposition which was convassed by the learned counsel at the Bar. In the reported case cited above the plaintiff had brought a suit for preemption in respect of a sale by a registered deed dated 21st December 1914 and the suit was filed on the 20th of December 1915. It was contended on behalf of defendant vendees that the suit was barred by limitation as the vendee had taken actual possession of the property sold some two months prior to the sale‑deed. It was held by Shah Din, J. that the possession referred to in Article 10 of the Limitation Act must be possession "under the sale sought to be impeached." and such possession should only be taken from the date of sale.

5. Learned counsel urged that in this case the date of the sale‑deed was 15th of July 1960 and that was the starting point of limitation and not the 28th of March 1961, oil which date the sale‑deed was registered. But. this contention has no force. It will be useful to reproduce Article 10 of the Limitation Act of 1908 at this stage which is as follows:‑ "To enforce a right of ‑pre‑emption whether the right is founded on law or general usage or on special contract. One year from the time when the purchaser takes, under the sale sought to be impeached, physical possession of the whole of the property sold, or "where the subject of the sale does not admit of physical possession, when the instrument of sale is registered." The above Article is divided in two parts. In the first part the period of limitation of one year in a suit for pre‑emption begins to run, when the purchaser takes, under the sale sought to be impeached, physical possession of the whole of the property and where the delivery of such physical possession is not possible and there is a registered document then the period of one year will commence from the date of the registration. The appellants were mortgages with possession and they cannot be considered to have taken the possession of the land "under the sale" on the 15th of July 1960, when the sale‑deed was executed between the parties and the first part of the Article 10 will not govern the case and the second part of Article 10 of the Limitation Act will apply. The appellants being themselves in possession of the property the same was not capable of physical possession, the period to their case will begin to run from the 28th of March 1961, the date when the instrument of sale was registered.

6. The document was presented for registration on the 6th of December 1960, but there is no dearth of authority on the subject that the date of the registration is the date when the document is copied in the registration book. In this connection reference may be made to Karam v. Fazl (10 P R 1881) wherein document was presented for registration on the 9th of July 1878 but uptil 16th July 1878, it was neither copied in the registration book nor endorsed with a certificate of registration, it was held that the document was not registered up to the 16th of July 1878, when it was in fact copied in the registration book. In Bhanjan Ram v. Gopala Ram (92 P R 1906) it was held that the date when the instrument of sale is registered is not the date of the endorsement under sections 2 and 58 of the Registration Act 'but when the registration is completed and the certificate under section 60 being signed and dated by registering, officer, after the date has been entered in the registers or books kept, for the purpose. To the similar effect are the other authorities Nagina Singh v. Duni Chand (62 1 C 797) and Dost Muhammad v. .M. Committee (A I R 1941 Pesh. 9).

7. In Tola Ram v. Lorinda Ram and Godu Ram (A I R 1922 Lah. 210) a Division Bench of Lahore High Court held that limitation for pre‑emption runs from the date of physical possession and where no physical possession is given limitation runs from the date of mutation or under Article 10 of the Limitation Act from .the date of the registration of the sale‑deed. It was further observed by the learned Judges that the underlying principle governing the limitation in pre‑emption suits is that it runs from the date of notice. In this case the vendor executed a deed and according to the terms the possession of the holding was transferred to the vendee at once. The vendee had to perform certain other obligations according to the terms of the agreement and it was on the fulfillment of those conditions and not before that one half of the land was to become the property of the vendee it was held that the full title did not pass to the vendee when the possession was given to him and the limitation for suit for pre‑emption begun to run from the date of the passing of the full title and not from the date of the possession. In an other case Dhanna v. Lekh Ram and others (A I R 1924 Lah. 695) where the vendee was already in possession of the land in dispute before the sale he was not deemed in law to have taken the "possession of the land under the sale" when the sale was effected. It was held that it was impossible for a person to take physical possession of the property of which he had already got the physical possession and that time was held to run from the date of the mutation under section 30 of the Pre‑emption Act.

8. Learned counsel contended that this authority which was relied upon by the learned Additional District Judge was not applicable as his case was one which was covered by provisions of Article 10 of the Limitation Act and section 30 of the Pre‑emption Act did not govern this case. But taking into consideration the language of Article 10 of the Limitation Act. as well as the various authorities discussed above, I am of the opinion that in this case the appellant was in possession as a mortgagee of the suit land and the mere fact that the sale-deed was executed in his favour on the 15th of July 1960, ,which contained a recital as to the delivery of possession would not amount to "delivery of possession under the sale." The vendor cannot be deemed to have delivered the possession by the mere fact of executing the deed. The appellant vendee being already in possession of the suit land it cannot be considered to be capable of physical possession as it is impossible for a person to take physical possession of property of which he is already in physical possession.

9. There is no proof that physical possession of this property was taken by the appellant vendee under the sale on the date on which the sale‑deed was executed. The appellant has rather asserted to the contrary and pleaded that he was already in possession of the property before the execution of the sale‑deed, therefore, the plaintiff pre‑emptor can be said to have the knowledge of the sale from the date of the registration of the deed which is a notice to the world at large. The plaintiff pre‑emptor was entitled to exercise his right of pre‑emption within one year from the 28th of March 1961, the date on which the sale‑deed in favour of the vendee was registered and the period of limitation in this case does not begin to run either from the 15th of July 1960, when the sale‑deed was executed or with effect from the 6th of December 1960, when it was presented for registration. The plaintiff respondent's suit, which was filed on the 24th of March 1962, was, therefore, within time. The appeal has thus no merit and is hereby dismissed in limine. K. M. A. Appeal dismissed.