Allah Banda, Siddique and Majeed and Mst. Azizan were owners of land measuring 3 kanals and 10 marlas. Out of them, Allah Banda, Siddique abd Majeed transferred the whole of the said land in favour of the petitioner, Allah Bakhsb, for Rs. 700, by means of an oral sale. Mst. Azizan, who was one of the owners of land was not a party to the said sale. On 3rd May 1969, a mutation, copy Exh. D. 1, was entered ~ in regard to the aforementioned alienation but it was rejected on 30th May 1969 for the reason that some of the land stood mortgaged with the Central Government and could, therefore, -not be sold before its redemption. After- rejection. Of the said mutation, the land which was mortgaged with the Central Government was redeemed and then the whole of the aforementioned land was alienated in favour of the petitioner . By all of its four owners, including Mst. Azizan, by means of an oral sale. On 25th February 1970, mutation, copy Exh. P. 3, embodying the subsequent sale was entered and the same was also sanctioned on 28th Fe4ruary 1970. The second sale, which too was made for Rs. 700, was pre-empted by the respondent, Muhammad Hanif, by filing a suit. The petitioner resisted. The suit inter alia on the ground that it was ,time barred. It was averred by him that he had taken possession of the land before the first mutation was entered and since the suit had been filed after one year of his having taken possession of the land, it was barred ~y time. In reply, it was contended by . The respondent that the sale in favour of the petitioner had been finalised with the sanction of the second mutation and, therefore, the period of limitation would run from the date of attestation of the second mutation, namely, 28th February 1970. Since the suit was filed within one year of the sanctioning of the second mutation it was urged by the respondent that. The suit was within time. His .Plea found favour with the Civil Judge, Bhakkar, District Mianwali, who heard the suit. As a result, the suit was decreed. The judgment and decree of the trial Court were challenged by the petitioner by means of an appeal before the District Judge, Mianwali, but without success. He' has, therefore, come up in revision to this Court.
3. Learned counsel for the petitioner contended that the second mutation attested on 28th February, 1970 was in respect of the sale as originally made in favour of the petitioner anti since he had obtained possession of the land in pursuance of the said sale, the .Period of limitation would be reckoned from .The date of his possession and not from the date of attestation of the second mutation.
As for rejection of the first mutation in regard to the original sale, his plea was that the said sale did not die out with the rejection of that mutation because the attestation of mutation was not necessary for creation of title in favour of the petitioner. He also drew my attention to copies-of khasra girdawari Exhs. D. 2 and D. 4 showing that the petitioner had taken possession of the land in question in Kharif 1969.
4. On the other hand, it was urged by learned counsel for the respondent that with the rejection of first mutation the sale made in favour of the petitioner in the year 1969 was cancelled and, therefore, his possession under that sale was of no help to him. It was also maintained by him that the sale pre-empted by the respondent was the one embodied in, the second mutation and since the possession claimed by the petitioner was not under the sale recorded. Therein the period of limitation would be computed from the date of attestation of the second mutation and not from the date of his possession of the disputed land.
5. There can hardly be any dispute on the proposition that the attestation of a mutation'is not sine qua non for acquisition of title to landed property but the respondent cannot be non-suited on. The basis of the petitioner's possession over the land in question unless it is established that his possession was under the sale which was pre-empted by the respondent by means of the suit giving rise to this revision. The sale pre-empted by him is the one recorded in the second mutation which was sanctioned on 28th February, 1970 and not the one incorporated in the first mutation which was rejected on 30th May 1969. The petitioner claims to have obtained possession of the land in pursuance of the sale embodied in the first mutation which was entered on 3rd May, 1969. It is not his case that he was again put in possession of the land under the sale recorded in the second mutation which was drawn up on 25th February, 1970. It would, therefore, follow that if the two , mutations were in respect of one and the same transaction, the period of limitation would run from the date of his possession but if the second mutation was in respect of a transaction different from the one for which the first mutation was entered and rejected, the possession of the petitioner would be of no avail to him
6. It is true that the two mutations related to. The same land and the sale price mentioned therein is also the same, namely, Rs. 700 but that, by itself, does not justify a conclusion that the two mutations were in regard to one and the same transaction. As indicated above, the land was owned by four persons, namely, Allah Banda, Siddique, Majeed and.Mst. Azizan but the sale involved in, the first mutation was made by Allah Banda, Siddique and Majeed without Mst. Azizan's being a party to .That sale. The sale embodied in the second mutation had however, been made by all the four owners of the land. It was also frankly conceded by learned counsel for the petitioner that the suit of the respondent was not time-barred to the . Extent of 1/4th of the disputed land sold by Mst. Azizan by means of the subsequent sale and could be decreed to that extent inasmuch as she was not a party to the original sale made, by Allah Banda, Siddique and Majeed. Further, the sale for which the first mutation was entered was not in regard to the full-fledged ownership of the land in dispute because at the time of the making of that sale some of the land. Was under mortgage With the Central Government. As against this, the sale mentioned in the second mutation was of full rights in the land inasmuch as before the second mutation was entered, the vendors bad. Redeemed the mortgage with the said Government. It is also not stated in the second mutation that it was in respect of the same sale which was entered in the first mutation. Moreover, the fact that none of the parties to the first mutation had challenged the order of its rejection, by filing an appeal or a suit, and had subsequently got the second tmntation entered and sanctioned clearly indicates that by their conduct, they had abandoned the sale entered in the first mutation and had gone in for the one entered in the second mutation. I am, therefore, convinced that notwithstanding the fact that the land and the sale price mentioned. In the two mutations are the same, the sale incorporated in the second mutation was different from the one mentioned in the first mutation and thus the two mutliuoits were in regard to two distinct transactions.
7. Before the possession of a vendee over the land involved in a suit for pre-emption can be taken into consideration for computing period of limitation it is to be ensured that his possession is under the sale which has been pre-empted by such suit. If the vendee was in possession of the land in any capacity other than that of vendee under the sale to which the preemption suit relates, his possession would have no bearing on the question of limitation. Misri Khan v. Shahji and another (A LR 1924 Lab. 394), Told Ram v. Lorinda Ram and others (I L R 3 Lab. 261),Ram Peara v. Rup Lal and others (80 P R 1918) and Gyan Singh v. Gyan Singh and another (AIR 1923 Lab. 654) are some of the authorities in point. In the instant case, the possession relied upon by the petitioner was under the first sale, which had ceased to hold the field, and is not under the second sale, which continues to subsist and .Was pre-empted by means of the suit giving rise to this civil revision. The possession of the petitioner, therefore, cannot be taken into account for deciding the question of limitation.
Resultantly, the period of limitation would run from the date of attestation of mutation incorporating the second sale, namely, 28th February, 1970, and since the suit was, admittedly, within time with reference to the said date, it was rightly held by the two Courts below that the suit was not barred by time.
7. No other finding of the learned lower Courts was assailed before me.
8. In conclusion, I hold that this civil revision does not call for any interference. It is dismissed with costs.