' FAQIR MUHAMMAD KHOKHAR, J.---The appellant instituted a suit, on 17-2-1979 for per-emption of the suit land measuring 8 kanals and 17 marlas, purchased by the respondent by virtue of a registered sale-deed dated 21-2-1978 (Exh.D-2) for a sum of Rs,70,000. The suit was dismissed by the Civil Judge, Jhelum, vide judgment and decree dated 4-7-1979. However, the Additional District Judge, Jhelum, vide judgment dated 1-4-1980, allowed the appeal of the appellant and decreed the suit. Therefore, the respondent preferred regular second Appeal No,566 of 1980 which was allowed by a learned Single Judge in chambers of the Lahore High Court, Rawalpindi Bench by impugned judgment dated 6-10-2003. As a necessary corollary, the suit was dismissed on the point of limitation.
2. The learned counsel submitted that the registered sale-deed dated 21-2-1978 (Exh.D-2) specifically mentioned the delivery of the possession of the suit land simultaneously with its execution. Therefore, the so-called agreement to sell dated 21-1-1978 (Exh.D-1) which recited the delivery of possession of the suit land thereunder was of no avail. In terms of Article 10 of the First Schedule of Limitation Act, 1908, a suit for pre-emption could be instituted within a period of one year commencing from the date of registration of the sale-deed or as the case may be from delivery of possession of the suit land under the sale. He further argued that delivery of possession suit land prior to the completed sale would not be relevant for the purpose of reckoning the period of limitation for such a suit. He -relied on the cases of Niaz Ahmed and others v. Mian Abdul Rehman and others PLD 1961 (W.P.) Baghdad-ul-Jadid 1, Muhammad Amin v. Maqbool PLD 1990 Lah. 397, Tajul Mulk v. Mst. Zaitoon Bibi and others PLD 1994 SC 356, Khurshid Begum v. Muhammad Fazal PLD 1981 SC(AJ&K) 103, Gullan v. Muhammad Ramzan PLD 1962 W.P. Baghdad-ul-Jadid 33, Muhammad Siddique v. Ghulam Muhammad 1996 SCMR 1955, Sukhnandan Singh and others v.
Jamiat Singh and others AIR 1971 SC 1158.
3. On the other hand, the learned counsel for the respondent vehemently argued that the question of limitation had been properly dealt with by the Lahore High Court which categorically found that the limitation would start from the date of delivery of possession of the suit land i,e, 21-1-1978 as per sale agreement (Exh D-1). Therefore, the suit instituted by the appellant on 17-2-1979 was barred by time.
4. We have heard the learned counsel for the parties and have also carefully gone through the evidence with their able assistance. We find that the registered sale-deed dated 21-2-1978 (Exh.D- 2) does not give any clue of delivery of possession of the suit land prior to its execution nor does it make a mention of agreement to sell dated 21-1-1978 (Exh.D-1). Moreover, the record shows that the suit property was a part of a joint Khata of which the vendor was one of the co-sharers. Article 10 of the First Schedule of Limitation Act, 1908 provides for a limitation period of one year to enforce a right of pre-emption commencing from the date 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 to physical possession, when the instrument of sale is registered. Section 30 of the Punjab Pre-emption Act, 1913 also takes care of limitation period in a case not provided for by Article 10 of the Limitation Act. It provides a period of limitation of one year for instituting a suit for pre-emption from the date on which a vendee takes under the sale physical possession of any part of such land or property whichever is earlier. Now the question arises as to terminus a quo for a limitation period. In the present case, the registered sale-deed was executed and registered on 21-2-1978 as required by section 54 of the Transfer of Property Act, 1882. Therefore, the period of limitation would be computed from the date of registration of the sale-deed as the physical possession of the suit property under the sale could not take place earlier thereto. The delivery of possession even if earlier made pursuant to an agreement to sell would not serve the purpose for non-suiting a pre-emptor on that ground.
5. This point was examined in a number of cases. In the cases of Tajul Mulk (supra) and Gharib Shah v. Zarmar. Gui PLD 1984 SC 188 provisions of section 31 of North-West Frontier Province Pre- emption Act, No,XIV of 1950 were examined in the context of the limitation period of instituting a suit for pre-emption. It was held that cause of action would accrue to a pre-emptor on the completion of sale transaction by attestation of mutation. In Muhammad Siddique and others (supra) it was observed that the period of limitation under section 30 of the Punjab Pre-emption Act (I of 1913) would not run from the date of possession if the same had been delivered before the sale but would run from the date when the sale transaction was attested. In Muhammad Amin (supra) sale had been made through a registered sale-deed on 17-5-1977 although the agreement to sell was executed earlier on 20-4-1977. It was held that the period of limitation under Article 10 of the Limitation Act would start from 17-5-1977 i,e, from registration of sale-deed and not from the date of agreement to sell. In Khurshid Begum (supra) it was held by the Supreme Court of Azad Jammu and Kashmir that for the purposes of assertion of right of prior purchase under section 20 of the Azad Jammu and Kashmir Right of Prior Purchase Act read with section 54 of the Transfer of Property Act (IV of 1882), "sale" would mean a completed sale on registration of sale-deed under section 61 of the Registration Act (XVI of 1908). In Sukhanandan and others (supra), the Supreme Court of India took the view that the starting point of limitation under Article 10 would be the date of registration of the sale-deed and in such a case section 30 of Punjab Act (I of 1913) would not be applicable with reference to the date on which vendees took physical possession of any part of such land. Section 30 of Punjab Act (I of 1913) would apply only whereas case did not fall within Article 10 of the Limitation Act. It was further held that second part of Article 10 covered cases where the subject of the property sold did not admit of physical possession. However, in the case of H.
Niamatullah Khan v. Shabnama and others 1974 SCMR 425 sale of house had taken place by means of an unregistered sale-deed without any sanction of mutation of delivery of possession. It was held that neither section 31 of N.-W.F.P. Pre-emption Act (XIV of 1950) nor Article 10 of the Limitation Act would be applicable. Therefore, the suit would fall under the residuary Article 120 of the Limitation Act which provided a period of six years for institution of such a suit. In Syed Ghulam Baqir Shah v. Muhammad Nawaz and others 1988 MLD 2932 an oral sale of land was entered in mutation on 6-8-1974 which was attested on 13-9-1974 without there being any mention of an earlier agreement to sell therein. The Peshawar High Court took the view that the earlier agreement to sell was superseded by the mutation. Therefore, the suit for pre-emption instituted on 12-9-1975 was held to be within time. In'the case of Ram Peara v. Rup Lal and others 80 Punjab Record (1918)
Vol. 53, p.269 late Mr. Justice Shah Din of the erstwhile Chief Court, Punjab, examined the scope of Article 10 of the Limitation Act, 1908. In that case the plaintiff had filed a Pre-emption suit on 20th of December, 1915 in respect of a sale by a registered sale-deed dated 21st December, 1914. It was pleaded for defendant that the suit was barred by limitation as the vendee had taken actual possession of the property some two months prior to the 21st December, 1914. It was held 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 could only be taken in this case from the 21st December, 1914 i.e; the date of deed of sale, and consequently the suit was not barred by time. In Words and Phrases (Permanent Edition) Vol 43, p.213 the meaning of the phrase "under the sale" is stated as follows:-- "Under statute barring owner's right to redeem land following sale for non-payment of taxes if there is no redemption within 20 years after purchaser has entered into open possession, since continued, "under the sale" quoted phrase denotes possession permitted by Tax Sale Act, and mere adverse possession without legislative authority is insufficient Brewer v. Porch, 249 A.2d 388, 395, 53 N.J.
167."
6. We have no doubt in our mind that the appellant had instituted the suit within the limitation period of one year from the registration of sale-deed. Needless to observe that both the parties had agreed before the Additional District Judge for a decision only on the point of limitation. In our opinion, the High Court fell into error in calculating the period of limitation from the date of agreement to sell by disregarding the date of registration of sale-deed. The impugned judgment of the High Court is not sustainable at law.
7. For the foregoing reasons, this appeal is allowed. The impugned judgment dated 6-10-2003 passed by the Lahore High Court, Rawalpindi Bench, in R.S.A. No,566 of 1980 is set aside.
Consequently, the judgment and decree dated 1-4-1980 passed by the Additional District Judge, Jhelum, in favour of the appellant is restored. The parties to bear their own costs.