' On an application filed under rule 11 of Order VII, C. P. C., in Suit No, 118 of 1969 for pre-emption, the Civil Judge Nawabshah rejected the plaint as barred by time. Against the said order an appeal was filed in the Court of the District Judge, Nawabshah, which however was dismissed on 18-7-1980. This second appeal under section 100, C. P. C. In the circumstances has been filed in this Court.
1. The facts of the case briefly stated are that the appellants are in exclusive possession of the suit land measuring 82-39 acres in which they own an undivided 50 paisa share. The remaining undivided share which belonged to certain evacuees, was transferred to the respondent No, 2 by the Se element Authorities. Subsequently, by a registered instrument dated 5-8-1968 the respondent No, 2 sold his aforementioned share in the undivided suit land to the respondent No, 1.
' Having thus become co-owner of undivided 50 paisa share in possession of the appellants, an application was filed by the respondent No, 1 for partition of the suit land before the concerned Mukhtiarkar. According to the appellants on receipt of the notices of the said application in September and October, 1969, they for the first time learnt about the sale of the said undivided share by the respondent No, 2, whereupon immediately on 14-10-1969 they filed the above- mentioned suit. Alongwith the suit, an application under Order XXXIX, rules 1 and 2, C. P. C. Was also moved by them praying for issuance of injunction restraining the respondent No, 1 from interfering with their possession of the entire land.
' The respondent No, I however applied for rejection of the plaint on the ground that the suit was barred by time. The learned trial Court agreeing with the plea that the share in the undivided land in possession of the appellants purchased by the respondent No, 1 on 5-8-1968 did not admit of physical possession when the instrument of sale was registered, held that the suit filed on 14-10- 1969 after more than one year of the date of registration of the sale-deed was barred by time under Article 10 of the Limitation Act. The plaint was consequently rejected by order passed on 16- 12-1969.
2. An appeal against the aforesaid order was filed which was dismissed by the learned 1st Appellate Court who concurred with the findings arrived at by the trial Court, which led to filing the present second appeal.
3. Mr. G. H. Abbasi the learned counsel for the appellants argued that the Courts below acted erroneously in applying Second Part of Article 10 of the Limitation Act to the facts of the present case on the assumption that the property in suit did not admit delivery of physical possession to the purchaser. The learned counsel submitted that the appellants as co-owners have all along been in possession of the entire land in which they have undivided 50 paisa share and that they also held lease hold rights of the remaining undivided share from the claimant transferee (the respondent No, 2). It was accordingly argued that notional possession of the undivided share sold, could have been delivered by the respondent No, 2 to the respondent No, 1 the vendee at the time of sale on 5-8-1969 and as such the time for filing the suit should be computed from the date of knowledge of the sale and thus the orders passed by the lower Courts rejecting the plaint as barred by time, were against the law.
4. In order to appreciate the arguments advanced by the learned counsel it would be relevant first to reproduce hereinbelow Article 10 of the Limitation Act which provides.
' Article 10.
"To enforce a right of pre- emption, whether the right is founded on law, or general usage, or an special contract.One Year 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."
' The learned counsel for the appellants having referred to the provisions of Article 10 placed reliance on the case of Niaz Ahmed v. Abdul Rehman (1) in support of his above-mentioned contention.
' I have gone through the cited case and find that the observations made therein in no way support the argument advanced by the learned counsel on behalf of the appellants. The learned High Court while considering the question of fixing the time from which the period of limitation is to be computed in suits falling under Article 10, observed that Article 10 of the Second Schedule of the Limitation Act fixes the period of limitation for a suit for pre-emption at one year starting from the date on which the purchaser takes under the sale sought to be impeached physical possession of the whole of the property sold or where the subject-matter of the sale
(1) PLD 1961 B J 1 ' does not admit of physical possession, then from the date the instrument of sale is registered.
' Contention in that case then was raised that as uncultivated piece of land could not be taken physical possession of, its being pointed out to the vendee by the vendor must suffice. The learned High Court rejected the above plea and held that there are number of ways in which physical may be taken, for example it may be walled, it may be hedged or it may be cultivated.
' It was further observed : ....................... It is clear that taking of what may be called symbolic possession of uncultivated piece of land cannot be considered to be the taking of physcial possession of that land. The possession which can be used to the prejudice of the pre-emptor is physical under the sale and no other kind of possession can suffice."
' It may be mentioned here that in the above-cited case the subject of sale was an uncultivated piece of land. The interpretation placed as above on Article 10 by learned Judges of the High Court is fully applicable to the facts of the present case, and is a complete answer to the argument advanced by the learned counsel for the appellants that as the subject-matter of the sale admitted of delivery of notional possession the period for filing the suit fixed at one year should be counted from the date when they received notices of partition proceedings initiated by the vendee/respondent No, 1.
5. The learned counsel then referred to the case of Luqman v. Allah Diwaya (1). The facts of that case are quite distinguishable. Briefly stated it was a case wherein a suit was brought for declaration of right of pre-emption in respect of a sale, not by registered instrument, of an undivided share in a joint holding which did not admit of physical possession. In the circumstances the learned High Court held that the period for filing of a suit for pre-emption in respect of such a sale would be six years as provided by Article 120 of the Limitation Act. The principle laid down in the said case, therefore, would not be applicable where the sale is by registered instrument and the subject of sale does not admit of physical possession within the meaning of second part of Article 10 of the Limitation Act.
6. This brings us to the consideration of the applicability of second part of Article 10 of the Limitation Act to the facts of the present case. At the time of hearing it was not disputed by Mr. G. H. Abbasi, that the appellants are in exclusive possession of the entire land in question wherein they own 50 paisa undivided share. As to the remaining 50 paisa share in the joint holding which was originally evacuee property, the appellants claimed to be in lawful possession pursuant to leasehold rights from the claimant-transferee. It would be relevant here to refer to the affidavit, dated 1 -10-1969 filed by the appellants in support of their application made under rules 1 and 2 of Order XXXIX, C. P.
C for restraining she respondent from interfering with their possession over the undivided land in suit, wherein in para. 2 it was asserted :- "That we the plaintiffs are in possession of the entire survey numbers shown in the application partly as co-owners, partly as holders of lease only given by the claimant to Kharif 1972-73."
On the above facts pleaded by the appellants themselves, I find that the sale in favour of respondent No, 1 made on 5-8-1968 by registered sale instrument of undivided share in a joint holding in exclusive possession of
(1) PLD 1967 Pesh. 166 ' the appellants as co-owners, did not admit of physical possession and as such the suit would be governed by second part of Article 10 of the Limitation Act, the termiuns a qua being the date of registration of the instrument. If any authority is needed reference may be made to the case of Mukhtar-i-am v. Muhammad Hussain (1).
' Reference be also made to the case of Fazal Din v. Abdul Hamid (2). It was a case where a suit for pre-emption was brought in respect of sale-deed executed on 15-7-1960, presented for registration on 6-12-1960 and was actually registered on 28-3-1961. The land in question was already in possession of the vendees as they had physical possession even before the sale, in their capacity as mortgagees with possession. On the plea raised that the said suit was barred by time, interpretation of Article 10 of Limitation Act came up for consideration. The learned High Court observed that the said Article 10 is divided in two parts, under the first part the period of limitation of one year begins to run when the purchaser takes possession under the sale sought to be impeached, physical possession of the whole property but where the delivery of such possession is not possible and there is a registered document then the period of one year will commence from the date of the registration. The learned Court then proceeded to hold as follows :- "The appellants were mortgagees with possession and they cannot be considered to have taken the possession of the land "under the sale" on the 15th of July, 1960, when the sale-deed was executed between the parties and the first part of the Article 10 will not govern the case and the second part of Article 10 of the Limitation Act will apply. The appellants being themselves in possession of the property the same was not capable of physical possession, the period in their case will being to run from the 28th of March, 1961, the date when the instrument of sale was registered."
' I may also usefully refer here to the case of Muhammad Nawaz v. Sh. Abdul Latif (3) where the Honourable Supreme Court held that in law a co-sharer in possession of a joint property cannot be evicted without filing a suit for partition. The observations made by the Honourable Supreme Court lend support to the plea advanced on behalf of the respondent No, 1/ vendee that the first part of column 3, of Article 10 of the Limitation Act is not attracted to the present case as the appellants being in possession of the whole of the undivided joint land as co-owners could not have been evicted without effecting partition and thus at the time of sale by registered instrument, the subject of sale did not admit of delivery of physical possession to the vendee.
7. The upshot of the above discussion is that in view of the admitted facts that the appellants as co-owners were in physical possession of the entire undivided land, that the property (i. e. The remaining undivided share also under exclusive possession of the appellants) was sold to the respondent No, 1 by registered deed on 5-8-1968 and finding that the subject of the sale did not admit of physical possession when the instrument was registered, the time for filing the suit started running from the date of the registration of the sale-deed under the second part of column 3 of Article 10 of the Limitation Act, the suit filed on 14-10-1969 was rightly held as barred by time and liable to be dismissed. Thus, I find no merit in this appeal which accordingly is dismissed with costs.
(1) AIR 1942 Lah. 118 (2) PLD 1967 Lah. 78
(3) 1971 SC MR 198