' This order will dispose of three R.S.As. Bearing No, 341/82, 342/82 and 343/82 by the vendee, R.S.A.
No, 340/82 by one pre-emptor and three R.S.As. Bearing No, 118/82, 119/82 and 120/82 by the other three pre-emptors, as these relate to two sales of one house.
2. House No, 149 Ward No, 4 Mohalla Ghara, Chiniot City belonged in equal halves to Azimullah and Rehmatullah. They sold their respective shares to Abdul Aziz, vendee, for the total sum of Rs, 13,000 vide separate sale-deeds, dated 29th August, 1973 registered on 4th September, 1973.
3. Hafiz Muhammad Abdullah, Islamuddin and Shaukat Ali filed two separate suits for possession by way of pre-emption viz. No, 353/74 and 351/74 in respect of the two sale on 3rd September, 1974. So did Mukhtar Ahmad vide Suits Nos. 348/74 and 352/74, respectively. All the four suits were consolidated.
4. Various issues were framed and decided but only two are relevant for the present purposes viz. Issue No, 7 "Whether the suits Nos. 351 and 353 are barred by time" O.P.D. These suits were, it may be noticed, filed by Hafiz Muhammad Abdullah and his two co-plaintiffs. No such issue was raised in respect of the suits of Mukhtar Ahmad which had arisen in similar circumstances and were filed on the same date. The other relevant issue is No, 10 to the effect "Whether this suit (3481) and suit No, 352, have been filed for the benefits of defendant No, 1, if so, with what effect". O.P.D. These suits were filed by Mukhtar Ahmad. On the latter issue, the learned trial Court, found that there was no independent evidence in support of the issue except the statement of Hafiz Muhammad Abdullah and therefore he decided the same against the latter and others. On issue No, 7 about the limitation, the learned trial Court referred to Exh. D 3/A which is allegedly an agreement to sell dated 20th September, 1972 in which transfer of possession was mentioned. Then to Exh. D. Lb and Exh. D. 11, sale-deeds, stated to be dated 28th August, 1973 though these are dated 29th August, 1973 and found that these affirm previous transfer of possession. He observed that 'for the time being if we do not believe D.W. 3 and Exh. D.W. 3/1, even then, it makes no difference. The registered sale-deeds are there which were written on 29th August, 1973. In the light of authority referred to above (i,e,, 1980 CLC 989) the date of writing of sale-deed makes the suit time-barred". In view of finding on Issue No, 7, the suits of the preemptors were dismissed by the learned Civil Judge, First Class, Chiniot, vide judgment and decree dated 29th October, 1980.
5. Hafiz Muhammad Abdullah and his two co-plaintiffs filed two appeals in respect of the two sales pre-empted in the two suits. Mukhtar Ahmad filed one appeal, as according to his learned counsel, judgment was joint in his two suits.
6. On the appeals of Hafiz Muhammad Abdullah etc. Issue No, 10 regarding collusive nature of the suit of the rival pre-emptor Mukhtar Ahmad, the decision of the learned trial Court was affirmed. As regards issue No, 7 about limitation, the learned Additional District Judge, Jhang found that "Abdul Aziz in the written statement filed by him alleged that on 20th September, 1972 agreement of sale was executed and he got possession of the house on that date under the same. Therefore, the suits were barred by time. Abdul Aziz vendee appeared as D.W. 11 and stated that he got the possession of the house on 20th September, 1972 when agreement Exh. D.W. 3/A was executed in his favour. If vendee got physical possession of the house on 20th September, 1972 the same was not under the sale because the sale-deeds were executed on 29th August, 1973". He referred to Article 10 of First Schedule to the Limitation Act and relied on 80 Punjab Record 1918 and AIR 1923 Lah.
31. Consequently, he held that since the vendee had not taken physical possession of the house "under the sale", therefore, the period of limitation will start from the date of registration and the suits were within limitation. So finding, he allowed the appeals of the pre-emptors and decreed their suits to the extent of 1/4th each. This is vide judgment and decree of the learned Additional District Judge, Jhang dated 22nd November, 1982.
7. The vendee has filed three R. S. As. No, 341/82, 342/82 and 343/82, the first two against Hafiz Muhammad Abdullah and two others and the last one against Mukhtar Ahmad, pre-emptors citing all concerned, of course. Learned counsel for the appellant contended that the appellant took possession on 20th September, 1972 on the basis of agreement Exh. D. W. 3/A. Under Article 10 of the First Schedule of Limitation Act, period of limitation of one year commences "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". Therefore, the appellant having taken possession on 20th September, 1972, the suits filed on 3rd September, 1974 were barred by time. Anticipating the argument of the learned counsel for Hafiz Muhammad Abdullah etc. Three pre-emptors that the aforesaid document was executed by a son of one of the two vendors claiming himself to be an attorney of his father whereas no power-of-attorney has been placed on record, the learned counsel for the appellant submitted that the vendors having subsequently executed sale-deeds will be deemed to have ratified the sale vide agreement, Exh. D. W. 3/A. He placed reliance on Muhammad Yaqoob v. The Settlement Authority and others (1), Learned counsel also referred to Gulab Rai Bhola Ram Guraya Ram v. Farid (2), Ram Gopal v. Dr. Baikunth Nath Sharma (3), Nangi v. Jhanda and others (4), Sher Muhammad v. Rajada and another (5), Abdul Karim v. Fazal Muhammad Shah (6), Sher Muhammad v. Rajada and another (7) and Syed Murtaza Shah v. Ziarat Ali (8), to contend that where possession is taken under the sale or the sale-deeds, limitation will commence from the date of possession, even if registration takes place subsequently.
8. Learned counsel for Hafiz Muhammad Abdullah etc. The three pre-emptors submitted that taking of possession on the basis of agreement Exh. D. W. 3/A cannot be said to be taking of possession "under the sale" because the agreement Exh. D. W. 3/A is neither a sale nor a sale-deed.
Moreover, it has been executed neither by the vendors nor by their authorised agent. The executant of the agreement D. W. 3/A was only a son of one of the two vendors claiming himself to be an attorney of his father but no power-of-attorney has been placed on the record either. As regards the contention that subsequent execution of sale-deeds Exh. D. 10 and D. 11, dated 29th August, 1973, would operate as a ratification of sale made vide agreement Exh. D. W. 3/A he submitted, that is not correct because ratification can be of a sale. But if the sale itself was not made and an agreement to sell has been entered into and the sale-deed was yet to be executed, no question of ratification would arise.
9. I have given anxious consideration to the contentions of the learned counsel for the parties. It is quite clear ex facie that the agreement Exh. D. W. 3/A and the statement of D. W. 3 do not prove that the delivery of possession was "under sale". The fact that subsequently executed sale-deeds affirm the transfer of possession as contended would not mean that the transfer of possession had taken place initially on 20th September, 1972 under the sale. The essence of provision of afore-quoted i. e.
Art. 10 of First Schedule of the Limitation Act is taking of possession
(1) 1973 SC MR 484 (2) AIR 1927 Lah. 388
(3) AIR 1947 All 252 (4) PLD 1961 (W. P.) B J 34
(5) PLD 1969 Lah. 471 (6) PLD 1967 SC 411
(7) PLD 1981 SC 591 (8) 1980 CLC 989 ' under the sale as when that is done that is taken as notice to the would be pre-emptors but when a vendee is in possession otherwise than under the sale then he does not take possession under the sale. It was held in Manga v. Ch. Muhammad Hussain and others (1) that if a person is in possession as a tenant and subsequently purchases the property he cannot be said to be taking possession of the property under the sale. Similarly, if a trespasser is in possession and many years later the owner finds himself that he cannot eject the trespasser and sells the property to him the limitation for suit of preemption will not start from the date of taking of possession as a trespasser but from the date of sale. The delivery of possession vide Exh. D. W. B 3/A was clearly by an unauthorised person and be did not even purport to act on behalf of one of the vendors either.
' Therefore, his delivery of possession to the appellant not authorised the appellant to hold the possession under a valid transfer and his possession would be no more than that of a trespasser.
In this view of the matter, it is quite clear that the taking of possession under the agreement Exh. D.
W. 3/A by the appellant was not taking of possession "under the sale". Therefore, the date of possession there under on 20th September, C 1972 will not give rise to the start of limitation so as to bar the suits of the pre-emptors which were brought in within limitation from the registration of the sale-deeds. The authorities relied upon by the learned counsel for the appellant which lay down that if possession is taken under the sale-deeds, the limitation will commence-notwithstanding that the registration takes place subsequently, are also not applicable because it is not the case of the appellant that he took possession under the sale-deeds executed on 29th August, 1973 and registered on 3/4th September, 1973 so as to bar the suits instituted on 3rd September, 1974. His case has always been, even in these second appeals, that the possession had been taken under the agreement Exh. D. W. 3/A on 20th September, 1972.It has already been seen above that this date cannot be the commencement date for limitation as the possession thereunder was not "under the sale". Consequently, the finding of the learned lower appellate Court on the D point that possession taken on 20th September, 1972 under the agreement Exh. D. W. 3/A was not under the sale is quite correct and calls for no interference in these Second Appeals. Therefore, the appeals are dismissed, leaving the parties to bear their own costs.
9. Now, we come to the appeals of the pre-emptors. Mukhtar Ahmad, pre-emptor in R. S. A. No, 340/82 wants to oust the other rival pre-emptors Hafiz Muhammad Abdullah etc. Who have filed appeal Nos. R. S. A. 118/82, 119/82 and 120/82. So do the latter want to oust the former i. e. Mukhtar Ahmad. The learned trial Court had framed issue No, 2 to the effect "which of the rival pre-emptors has superior right of pre-emption as against the others". On the basis of evidence, he found that none is entitled to exclude the other and "in case of success they will have equal shares". Neither Mukhtar Ahmad, nor, Hafiz Muhammad Abdullah and others challenged the finding on issue No, 2 during the course of hearing of the first appeal before the learned Additional District Judge.
Therefore, it is too late in the day for them to turn round and challenge the finding in these Second Appeals. Otherwise too under section 16 of the Pre-emption Act, neither side has preferential claim.
Therefore. Their appeals to exclude each other, titled above, are also dismissed, without any order as to costs.
(1) PLD 1963 Azad J & K 75