' RAJA FAYYAZ AHMED, J.--Through this civil petition, leave to appeal has been sought for from the judgment dated 8-5-2001 passed by the learned Single Judge in Chamber of the Lahore High Court, Lahore in Regular Second Appeal No,214 of 1969, preferred by the petitioners against the judgment and decree dated 23-11-1968 of the learned Additional District Judge, Gujrat, reversing the decree of the Civil Judge, Mandi Bahauddin dated 19-11-1966 declining to decree the suit of the respondent, was dismissed.
2. The precise relevant facts of the case are that the respondent instituted a suit for possession through pre-emption of land measuring 40 Kanals situated in Mouza Mathmal, Tehsil Phalia, District Gujrat against the petitioners thereby pre-empting the above said land sold by the vendor of the suit property, namely Muhammad Khan son of Wali to the petitioners for consideration of Rs,1,250 vide Mutation No,392 sanctioned on 25-5-1963. It was further the case 'of the respondent/ plaintiff that the fictitious sale price of Rs,2,000 was shown in the above said mutation. She claimed to be having a superior right of pre-emption as against the petitioners/vendees on the ground of being collateral of Muhammad Khan vendor, as well as; for being a co-sharer in the suit-land and owner of estate in Deh but the said vendees did not have any such qualification.
3. The suit was resisted by the petitioners through written statement in which a number of preliminary objections were raised and it was pleased that the suit-land was purchased by the petitioners through registered sale-deed dated 5-1-1954 against the consideration amount of Rs,2,000 and that the land was not sold through the questioned mutation, as such; it was contended that the suit was barred by time, moreover; on merits of the case, the relationship of the respondent with the vendor as his collateral was also denied.
4. The learned trial Court out of pleading of the parties framed six issues. The Issues Nos.1, 3 and 4 as it reflects from the record, were decided on the basis of oath taken by one of, the petitioners, namely, Shera on 11-7-1966 in which the claimed superior right of pre-emption of the respondent was admitted. The sale price of the suit-land while deciding issues Nos.3 and 4 was fixed at Rs,2,000. The parties produced their respective evidence on Issues Nos.2 and 5. The learned trial Judge in the light of the evidence adduced by the parties decided Issue No,2 in favour of the petitioners/defendants by holding the suit as barred by time. Consequently, vide judgment and decree dated 19-11-1966 dismissed the suit of the respondent.
5. The respondent/plaintiff assailed the decree of the learned trial Court in Civil Appeal No,258 of 1966 before the learned Additional District Judge, Gujrat to whom civil appeal was sent for disposal by the learned District Judge. The learned first Appellate Court vide judgment and decree dated 23-11-1968 accepted the appeal and decreed the suit in favour of the respondent subject to deposit of the pre-emption amount of Rs,2,000 and the adjustment of Zar-e-Panjum, if so deposited by the respondent, by 18-12-1968 failing which the suit shall stand dismissed with costs throughout.
6. The petitioners assailed the judgment and decree of the learned first Appellate Court before the learned Lahore High Court, Lahore, by filing R.S.A. No,214 of 1969, which was dismissed vide impugned judgment, hence; this petition for leave to appeal.
7. The, learned Advocate Supreme Court for the petitioners contended that pursuant to the sale of suit property made by Muhammad Khan in favour of the petitioners, the possession of suit property was delivered to the vendees on 14-12-1960 in view of the decree earlier passed by the Civil Court and the suit was instituted as the vendor failed to deliver physical possession of the suit property to the petitioners, in which suit the said vendor entered into a compromise and made a conceding statement in their favour, thus; the said suit was decreed in favour of the petitioners/vendees and they got the possession of the suit property on the above said date, moreover; on the basis of said decree mutation in question was also attested in the revenue record in which too the factum of delivery of physical possession of the suit property in favour of the vendees as on the above said date was admitted and acknowledged by the parties, therefore, in view of the such. Undisputed documents, the time for institution of the pre-emption suit would run from the date of delivery of possession of suit property to the petitioners i,e, on 14-12-1960 and not from the date of attestation of the mutation in question dated 25-5-1963 within the meaning of Article 10 of the Limitation Act read with section 30 of the Punjab Pre-emption Act, 1913 but the learned High Court, as well as; the learned first Appeal Court having omitted to take into consideration the factum of delivery of possession of the suit property sold out to the petitioners, by misapplying the law on the subject and misconstruing the material facts passed the impugned judgment which thus deserves to be set aside by restoring the decree of the learned trial Court. According to the learned counsel, the facts and reasons found favour with the learned Judge in he High Court in the given circumstances of the case without taking into account the earlier decree passed in favour of the petitioners and the contents of mutation in question with regard to the factum of delivery of possession of the suit property rendered the impugned judgment as not sustainable on facts and law.
8. On the other hand, the learned counsel for the respondent when confronted to the above mentioned documents attempted to argue that earlier decree passed in the suit filed by the petitioners against the vendor of the property in question for possession of the suit property was not based on the sale transaction of suit-land, therefore, the time in the present suit would run from the date of attestation of the mutation in question, hence; impugned judgment is unexceptionable.
9. The contentions noted above put forth on behalf of the parties by their learned counsel have been considered in the light of impugned judgment one through carefully with their assistance including the documents appended with the memo of petition and those filed subsequently on behalf of the petitioners. Notwithstanding the initial sale-deed dated 5-1-1954 made by vendor Muhammad Khan in favour of the petitioners inherited by him from one Jalo declared to be void in the impugned judgment for the reason that later on it turned out that said Muhammad Khan was not the owner of the suit-land for having already sold away entire share of his land in the Khata resulting into the refusal by the Revenue Officer to give effect to the said sale in the register of mutation; the earlier suit was instituted by the vendees under the above said sale-deed and during this period of time, the vendor Muhammad Khan again inherited the landed property of one Sain son of Bahawal who had died on 12-11-1954 in the same Khata not less than the land sold out to the said vendees under the sale-deed dated 5-1-1954, as such; on 29-11-1960 a compromise was filed in the said suit, whereby; Muhammad Khan vendor admitted the suit of the petitioners and prayed that the suit be decreed in favour of the vendees/plaintiffs, which accordingly was decreed by the learned Civil Judge Mandi Bahauddin in favour of the petitioners pursuant to which Mutation No,392 was attested on 25-5-1963 which fact has not been denied or disputed by the learned counsel for the respondent that some other land under the earlier sale made in favour of the said vendees in the year 1954 or no land pursuant to the above said sale transaction covered under the mutation was attested in favour of the vendees on 25- on the basis of the decree passed in the said suit on 14-12-1960-5-196360, whereby; undisputedly possession of the suit-land was delivered to the petitioners and such fact was duly acknowledged by the vendor and the vendees before the Revenue Officer at the time of attestation of the mutation dated 25-5-1963 tendered in evidence in the present suit but the factum of delivery of possession pursuant to the decree of the Court dated 14-12-1960 was not disputed or challenged in cross-examination. Shera, petitioner No,2, who appeared as D.W.1 in the present suit categorically in his examination-in-chief stated that on the basis of the decree of the Court in his suit Exh.D.3, they got the physical possession of the suit property since the date of the said decree. He again. Affirmed in cross-examination that he got the possession of the suit property on the basis of said decree. The date of delivery of the possession of the suit property to the petitioners/vendees on 14-12-1960 was not disputed, hence; such fact specifically deposed before the trial Court shall be deemed to have been admitted by the respondent but the learned first Appellate Court held that suit of the respondent was not hit by limitation in view of the provisions of section 30 of the Punjab Pre-emption Act to which Article 10 of the Limitation Act, 1908 had no application and further held that the time will run from the date of attestation of the mutation on 25-5-1963 for the pre-emption suit, having been instituted within a period of one year which conclusions were affirmed in the impugned judgment by the learned Bench by holding that since the sale was effected through the decree of the Court on the strength whereof the above said mutation was attested, thus the case will be governed by Article 120 of the Limitation Act not falling/covered under any other Article except Article 120 of the Limitation Act, which prescribes a period of six years for filing such suit when the right to sue accrues.
10. The conclusions so derived in the impugned judgment are self-conflicting as on the one hand it was held that the case was governed by section 30 of the Punjab Pre-emption Act, 1913, therefore, Article 10 of the Limitation Act had no application and on the other hand it was concluded that since the sale was effected through decree of the Court, not falling under any specific Article of Second Schedule to Limitation Act therefore, the time for instituting the suit will attract Article 120 of the Act which provided a period of six years for the purpose from the date when the right to sue accrued. Both these conclusions obviously cannot stand together on the proposition in hand.
Section 30 of the Punjab Pre-emption Act, 1913 envisages the period of limitation within which a suit to enforce a right of pre-emption under the provisions of the said Act could be filed, notwithstanding anything in Article 120 of the Schedule of the Limitation Act, 1908 and not provided for in any case for by Article 10 of the Second Schedule of the Limitation Act, 1908, hence; it is abundantly clear from the provisions of section 30 of the Punjab Pre-emption Act, 1913, that the provisions of Article 30 of the Limitation Act would be applicable to a suit to enforce the right of preemption not provided by Article 10 of the Second Schedule of the Limitation Act, 1908 and notwithstanding Article 120 of the said Schedule, thus; the conclusions arrived at by the learned first Appellate Court and in the impugned judgment in view of the available evidence on the point referred to above with regard to the non-applicability of Article 10 of the Second Schedule of the Limitation Act and application of Article 120 of the said Schedule are patently not tenable, hence; in our considered view the period of limitation for enforcing the right of preemption in the instant case was governed by Article 10 of Second Schedule of the Limitation Act which provides a period of one year for enforcing such right 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.
11. Undisputedly, in the instant case, as above mentioned, physical possession of the suit-land was delivered to the petitioners on 14-12-1960 and not on the date of attestation of the mutation in question. No distinction has been made in the said Article with respect to the delivery of possession to the vendees, be through the decree of a Court or taken under the sale and merely because on a later date i,e, 25-5-1963, the mutation was attested by the Revenue Officer would not enlarge the time for instituting the pre-emption suit from the date of attestation of the mutation and not from the date of delivery of possession made under the sale. The present suit was instituted on 20-5- 1964, beyond the prescribed period of limitation of one year from the date of delivery of possession of the property in question to the petitioners; therefore, the same was hit by limitation. The period of limitation in the instant case as concluded by both the learned Courts i,e, the Honourable High Court and the learned first Appellate Court had been misapplied and misconstrued in the light of the material available on record, hence; such findings and conclusions on the point could not sustain on facts and in law discussed above.
12. Thus, in view of the above reasons, this petition is converted into appeal. The impugned judgment and decree and the one passed in the case by the learned first Appellate Court are set aside. The result is that the judgment and decree of the learned trial Court is restored with no, order as to costs.