1. Sale of 40 Kanals of agricultural land, comprising of 7/24 share in Khata No. 1/98 and 17-125 share in Khata No. 102 of village Verowal, Tehsil Bhalwal, district Sargodha, as evidence by Mutation No. 560, sanctioned on 26-12-1979 in favour of the petitioner Wali Muhammad, was sued out on 24-12-1980 by Dost Muhammad respondent to be pre-empted on the ground of his being an owner of the estate and also a co-sharer in the land sold. Vendee contested the suit on the basis of simple denial of his claim, without any thing more, and therein it came to be set down for trial on the following issues:----
(1) Whether the suit is incorrectly valued for the purposes of court-- fees and jurisdiction? If so, what is correct valuation?
(2) Whether the plaintiff has got superior right of pre-emption than the vendee/ defendant?
(3) Whether the ostensible sale price of Rs.50,000 were fixed in good faith or actually paid?
(4) If issue No. 3 is not proved, what was the market value of the suit land at the time of its sale?
(5) Relief.
2. During the trial superior right of the plaintiff as an owner of the estate was admitted by the vendee and ultimately, trial Court decreed his suit on payment of Rs.50,000 which were found to have been fixed in good faith and actually paid. Vendee preferred an appeal there against in the District Court wherein just two grounds of attack were set out, firstly, that the plaintiff had failed to make up the deficiency of court-fee in accordance with the direction of the trial Court and, secondly, that Lal Hussain defendant No: 2 had a superior right of pre-emption than that of the plaintiff but he had been impleaded after the expiry of limitation available for filing the suit. Learned District Judge found his objection with regard to court-fee to be factually incorrect because the plaintiff had duly complied with the trial Court's direction by supplying the required court-fee within the time allowed to him and his contention with regard to Lal Hussain was repelled for the reason of the principle of lispendens getting attracted to the transfer made to him by the vendee himself after the expiry of the limitation prescribed for filing the suit and subsequent to the actual institution thereof. A new contention, beyond the case set up by the vendee in either 'Court, which was sought to be raised before him during the hearing of the appeal, to the effect that the vendee-defendant was himself a tenant of the land in dispute, was also disallowed by him for the reason that so had not been pleaded in the written statement and an application filed earlier by the vendee to have his written statement amended to take this plea had been rejected already and even affirmed by the dismissal of his revision petition against that order. But magnanimously enough he entertained yet another unpleaded objection that the suit was time-barred on account of its having been instituted more than a year after the date of attestation of mutation of sale, which was asserted before him to be the 20th of December, 1979 and not the 26th thereof. He proceeded to verify this contention by summoning the original Mutation No. 560 and finding it to have in fact been sanctioned on 26-12-1979, the date also borne on the certified copy of the mutation placed on the trial Court's record as Exh. P. 2, held the suit filed on 24-12-1980 to be within limitation. Appeal of the vendee was thereupon dismissed by affirming the findings of the trial Court on all the issues. He has now come up to this Court in this Second Appeal.
2. The only argument attempted by the learned counsel in support of this appeal is that the suit of the respondent-plaintiff was time-barred from the date of possession as is provided for in section 30 of the Punjab Pre-emption Act. I have noticed that the objection about limitation was not taken by the appellant in his written statement so that there is no issue with regard to it and he had not raised this point even in his appeal below but before the learned District Judge it was urged on a different premises. When confronted with this situation, to be pointed out that his argument about limitation was not a question of pure law but depended upon inquiry into certain facts and determination thereof, so that it could not be entertained at this stage, learned counsel came out with the assertion that because learned District Judge had allowed the point to be argued in the appeal which he had, however, proceeded to repel with reference to the original mutation, despite a copy thereof already placed on the record, therefore, the mutation as a whole had come to be noticed and since in column No. 14 thereof at the time of entering up of the mutation on 15-12-1979 there was a statement of the vendor Mst. Jalal Bibi recorded in the report of the Patwari to the effect that she had delivered the possession, therefore, it may be taken to have been proved also that the vendee had entered into possession on that date which being prior to the date of sanctioning of the mutation deserved to be considered to have set the limitation running. This contention is based on the circuitous conduct of the appellant himself who had improperly contested the date of attestation of the mutation to raise an impleaded case at the appellate stage that the suit was time-barred. In entertaining such a plea at that stage learned District Judge acted in disregard of the law repeatedly declared in innumerable reported cases that a plea involving inquiry into facts, if not taken in the pleadings, cannot be permitted to be taken at the appellate stage. An apt authority having binding force is the case Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690, wherein, their Lordships of the Supreme Court have declared the law as under:------ "Points involving enquiry into facts or as to which there could have been an answer on facts if they were raised in the trial Court cannot in the absence of strong reasons justifying such a course, be allowed to be raised for the first time in appeal --------"
3. The abovesaid error committed by the learned District Judge at the behest of the appellant himself cannot provide a basis for him to raise the foregoing contention which, for a number of reasons is, even otherwise, completely devoid of substance. In the first place, because the plea with regard to limitation, on the premises that it is sought to be now raised, does not remain a question of pure law so that its application depends upon inquiry into and determination of facts, hence it is not open to be urged at this second appellate stage. Secondly, the mere production of the mutation does not make the statement, purported to be entered in the report as that of the vendor, a legal evidence in the suit. Thirdly, at best, it is a mere assertion of the vendor which has not been owned by the vendee at any stage, neither in his written statement nor in his statement made in the Court and much less has it been proved even that the vendor had ever in fact made such an assertion. In Thakur Singh v. Karam Singh and another AIR 1925 Lah. 165, a similar plea was repelled as under:-- - "The mere reporting to the Patwari that the vendor has relinquished possession and that the vendee has assumed possession is no proof that there was a giving and taking of physical possession within the meaning of section 30 of the Pre-emption Act."
4. Furthermore, it is well-settled that a decree brings about merely the name of the successful pre- emptor to be substituted for that of the vendee in the transaction of sale but does not cause him to be brought into the contract thereof so that notionally, it is as if the name of the vendee was erased from the sale-deed and that of the successful pre-emptor was thereby entered at that place but it does not make him a party to the sale-deed so as to be held bound by the stipulations contained in the document of sale.
5. Lastly, section 30 of the Punjab Pre-emption Act contemplates 'Physical possession' of the land sold to be the sine qua non. So far as is relevant hereto, section 30 (ibid) reads:- ---.......The period of limitation in a suit to enforce a right of pre-emption under the provisions of this Act shall, . . Be one year ....From the date on which the vendee takes under the sale physical possession of any part of such land or property ... "
6. For almost a century in the past, it has been consistently held that land comprising of undivided fractional share of joint holding, as is the case here, is not a tangible property to be capable of physical possession. View to the contrary has not been taken in any case.
7. Whereas under the general law, in a case which arose under the Transfer of Property Act, it has been held in Debi Prasad Singh and another v. Jaldhar Chaube and others AIR 1946 All. 125 as under:- "The provision which allows an exchange or sale by means of delivery of possession refers only to tangible immovable property. The share of two pies in the mahal is not capable of being touched and cannot be described as tangible."
8. In a pre-emption case arisen in Allahabad, reported as Batul Begam v. Kansur Ali Khan and others I L R (1902) XXIV All. 17, the phrases 'actual possession' and 'physical possession' were considered synonymous and held to mean 'personal and immediate possession'. Even in Punjab, before and after the Pre-emption Acts of 1905 and 1913 views to the above effect have been consistently expressed in innumerable reported cases, whereof reference may be made to only the following:- In Kalan Khan v. Ram Sarn Das 97 P R 1880, it was held:- "The words 'physical possession' do not include the idea of constructive possession, the expression corresponds to 'tangible possession'. "
9. In Mahomed Ata Ullah Khan v. Gopala Mal and others AIR 1923 Lah. 74(2) it was held that a share of undivided mahal is not susceptible of physical possession and, therefore, the time for pre-- emption runs from the date of mutation. Again, in Raja Maula Bakhsh v. Qadir Dad PLD 1953 B J 52 a Division Bench of this Court, held with regard to the sale of land forming part of a joint Khata that it was not capable of physical possession by the vendee and the limitation had to be calculated from the date of mutation and, this view was also followed by another Division Bench in the case, Gullan v. Muhammad Ramzan PLD 1962 B J 33. Hence, the land sold in this case is not capable of physical possession and limitation falls to be reckoned from the date of sanction of mutation, which is 26-12-1979 and the suit of the respondent-plaintiff instituted on 24-12-1980 is undoubtedly within) time. Contention of the learned counsel is, therefore, repelled.
3. There is no case made out in the terms of section 100 of the C.P.C. Hence, dismissed in limine.