Briefly stated, the facts giving rise to this second appeal are that sale of land vide Mutation No, 1128 (Exh. P. 1) dated 28th February, 1974 was sought to be pre-empted by the respondent by filing a suit for possession through pre-emption on 24th February, 1975 against Zulfiqar Ali, vendee, the present appellant. In the written statement filed by the appellant, various preliminary objections were taken and some of these objections were first decided by the trial Court vide judgment dated 4th April, 1978. Then vide judgment dated 7th May, 1978, the suit Of the plaintiff-respondent was dismissed as under issue No, 8 it was held that the plaintiff-respondent did not possess superior right of pre- emption. Issue No, 6 pertaining to limitation was decided in favour of the plaintiff-respondent. The dismissal of the suit vide judgment dated 7th May, 1978 was assailed by the plaintiff-respondent by filing an appeal and in that appeal the matter was remanded by the learned Additional District Judge, Jhang, vide judgment dated 13th June, 1979. The learned Appellate Court in this judgment held that the plaintiff-respondent had superior right of preemption and that the court-fee paid on the suit as well as the appeal was proper. The operative part of the remand order reads as under :- "As a result of my above discussion, the appeal is accepted, the case is remanded to the Court below to record its findings afresh on the other issues."
After remand, the learned trial Court decided the other issues, includin issue No, 6, relating to the question of limitation, and decreed the suit of the plaintiff-respondent vide judgment and decree dated 26th January, B 1980. The appeal filed by the present appellant against the aforesaid decree remained unsuccessful and hence this second appeal under sectio 100, C. P. C.
2. This appeal was admitted vide order dated 20th February, 1982 to consider the question of limitation alone. The learned counsel for the appellant argued that the possession of the land in dispute was delivered to the appellant-vendee on 13th February, 1974 and so the suit filed on 24th February, 1975 was barred by time though the mutation of sale was attested on 28th February, 1974.
According to him, it is the date of delivery of possession under the sale which is important and from which the period of limitation is to be reckoned in view of the provisions of section 30 of the Pre- emption Act, 1913. In support of this plea, he referred to Exh. P. 1, the mutation, wherein under column No, 14 the Patwari while entering the mutation had made the endorsement that as per the statement of Sultan, vendor, the possession had changed hands. He also referred to the statements of D. W. 2 and D. W. 4 to contend . That the factum of delivery of possession stands duly proved and that the said fact was further corroborated by Sultan P. W. 1, vendor, who was produced by the plaintiff-respondent himself as he had deposed that the bargain (sauda) was effected three months prior to the attestation of the mutation and that the possession of the land was delivered to the defendant (the present appellant) on that very day on which the bargain was effected. Reliance was also placed on Syed Murtaza Shah v. Ziarat Ali.
' In reply, learned counsel for the respondent argued that vide mutation (Exh. P. 1) a definite share out of the joint khata was sold and that very definite share was pre-empted by the respondent in the suit filed by him. Referring to Exh. P. 4, Khasra Girdawri, he argued that the possession of this joint khata throughout remained with the owners of the khata and that neither the vendor was in possession of any specific khasra number prior to sale nor the purchaser from him obtained or came to be recorded as in possession of any specific khasra number. On this premises, he submitted that the assertion that the actual physical possession was delivered to the vendee, appellant, was not established on record and that in fact khata being joint, the land sold was not capable of physical possession.
3. Having considered the respective submissions of the parties and having gone through the case law, I am of the view that the appellant in the instant case failed to discharge the onus of the issue by proving that actual physical possession was delivered to him on 13th February, 1974, as asserted by him. Khasra Girdawri (Exh. P. 4) clearly goes against his assertion. The endorsement made by the Patwari incorporating the statement of Sultan vendor that the possession has changed hands, neither was proved by producing the Patwari, nor Sultan when he appeared as P. W. 1, was confronted with his alleged statement. On the contrary, his statement in Court to the effect that the bargain was effected three months before the date of attestation of the mutation and that possession was also delivered when the bargain was effected, went against the statement attributed to him in the said report of the Patwari. Moreover, admission by vendor before Patwari as to delivery of possession alone is not sufficient and delivery of physical possession as a fact has to be established by affirmative evidence. Moreover, the delivery of possession has to be visible and open which may give notice to the persons concerned that former owner has parted with the property in favour of some other person. Reference may be made to Murid Hussain and another v.
Muhammad Shafi and another, Waris Ali v. Ghulam Rasool, and Muhammad Sarwar v. Feroze Khan, in support of the view that I have taken that report of the Patwari is not sufficient by itself to prove delivery of actual physical, possession. Muhammad Sarwar's case, as regards waste land, it was observed that no one could by mere look, conclude that it had formed the subject-matter of a recent transfer. The question whether a certain land was or was not capable of physical possession, is that of fact. If it is asserted that the land was capable of physical possession, then there must have been some concrete and visible taking of possession by the vendee in consequence of the sale in his favour, and if it was not, the starting point of limitation shall run from the date of mutation. In view of above, the plea that land being Banjar Qadim the possession of the same, though part of the joint khata, was delivered, cannot be accepted as nothing was brought out in evidence to show that some concrete or visible steps such as ploughing the land or fencing it were taken.1 2 3 4
4. The question as to when actual physical possession changed hands, is basically a question of fact and this question of fact is to be determined on the basis of the material on record. There is, however, no dispute on the question that the limitation starts running from the date of delivery of possession in case the possession is delivered earlier to the attestation of the mutation. In Murtaza Shah v. Ziarat All the same view was reiterated as it was held that limitation period under section 30 (1) of the Pre-emption Act starts from the date of attestation of mutation or date of delivery of possession, whichever is earlier. This case again is of no help to the appellant as I have held that in the instant case the appellant was not successful in establishing that he had obtained actual physical possession on 13th February, 1974 i. e. Before the attestation of mutation. This view finds support also from the fact that admittedly the appellant was sold a definite share in a joint khata and admittedly there has not been a partition of the joint khata. It was not established on record that the vendor was himself in separate physical possession of his share in the joint khata. Had he been in separate possession of his share, then it was possible to prove that despite the khata being joint, physical possession, was actually delivered. In this case. The appellant while appearing as D.
W. 4 was not in a position to say as to the number of khatas in which the land in dispute was situated and that he purchased only a share to the extent of 4303 out of 12,704 :shares. No support can be sought by him from the statement of Sultan P. W. 1 as his version was diametrically opposed to the assertion of fact pleaded by him. In these circumstances, the concurrent findings of fact recorded by the two Courts D below cannot be interfered with in second appeal under section 100, C. P. C. In view of the above, the plea of the learned counsel for the respondent, that while remanding the case by the learned Additional District Judge vide judgment dated 13th June, 1979, the question of limitation was not kept open for fresh determination, need not to be gone into.
5. For the reasons given above, this second appeal fails and is, hereby, dismissed with costs. 1980 CLC 989 1980 CLC 1753 1979 CLC 533 PLD 1951 Lab. 169