' ALI HUSSAIN QAZILBASH, J.--These two appeals bearing No,1 of 1987, filed by Barkhurdar, resident of District Rawalpindi, and No,2 of 1987 filed by Muhammad Anwar and others, residents of District Pere Ismail Khan, arise from the judgment of a learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 7-12-1985, and from the judgment of a learned Single Judge of the Peshawar High Court, Circuit Bench Dere Ismail Khan, dated 7-10-1986. Since the questions of law raised in the two appeals are common, both the appeals are being disposed of through this order.
2. Civil appeal No,1 of 1987 ' The brief facts are that on 13-2-1978 one Mangta Khan agreed to sell land measuring 5 ,kanals 18 marlas situate in Mauza Darkali Mamoori, Tehsil Kahuta, District Rawalpindi to the appellant for a sum of Rs,25,000. Later on it transpired that the aforementioned agreement also included 3/4th share of the other co-sharers who had already sold it to Muhammad Rafique and others. Mangta Khan pre-empted this sale successfully and obtained a decree on 1-6-1978. Mangta Khan then showed his reluctance to honour the agreement to sell dated 13-2-1978, whereupon the appellant instituted a suit for specific performance which was decreed in his favour on 17-4-1980 and a mutation to, this effect was sanctioned on 21-6-1980. This sale was pre-empted by the respondent alleging that the price shown in the impugned mutation was fictitious and that the land was sold for Rs,12,000 and that he being the collateral of the vendor and being a co-sharer in the Khata had a superior right of pre-emption. The suit was defended wherein objections as to the limitation, valuation and misdescription were raised and on facts all allegations were refuted.
' The pleadings of the parties resulted in the framing of as many as eight issues, of which issue No,1 is presently relevant and is to the effect: "Whether the suit is time barred?"
' After recording the evidence produced by the parties, the learned trial Court, after examining issue No,1 in detail, held the suit to be barred by time and dismissed the same on 27-3-1983. The appeal filed by the respondent was accepted by the learned Additional District Judge, Rawalpindi, on 15- 9-1985 and he decreed the suit of the respondent on payment of Rs,25,000. Barkhurdar appellant then filed a revision petition in the High Court which was dismissed through the impugned order.
Civil Appeal No,2 of 1987 ' Muhammad Anwar and others, appellants/vendees, purchased land measuring 505 kanals 5 marlas, situate in Mauza Hayat Bochra, Tehsil and District D.I.Khan, as per agreement to sell executed on 24-12-1976 and a sum of Rs,6,000 was paid to the vendor as earnest money and possession of the suit land taken over. Under the terms of the agreement it was stipulated that the remaining amount shall be paid to the vendor after he got permission from the Commissioner, D.I.Khan, and at the time of attestation of sale mutation. Later on, the vendor failed to honour the agreement and, therefore, the appellants were compelled to file a suit for possession through specific performance of the agreement to sell. The suit was compromised on 23-10-1977 and a decree was passed in favour of the appellants on payment of a sum of Rs,14,313 and a sale mutation was attested on 11-1-1981. This sale was pre-empted by the respondents through a suit brought on 7-1-1982 and after the contest the Civil Judge, D.I.Khan, decreed the suit of the respondents on 10-11-1984. The appeal and the revision of the respondents in the Court of the District Judge, D.I.Khan, and in the High Court were dismissed on 8-5-1986 and 7-10-1986, respectively.
3. Leave in both the cases was granted to consider the question whether in a suit for pre-emption, delivery a possession of the suit! Land if established to have been made under the agreement to sell is as good a delivery of possession as made under the sale and that limitation to file a suit for pre-emption will commence from the date of delivery of such possession.
4. We have heard the learned. Counsel for the parties at some length and perused the record.
5. In Civil Appeal No,1 of 1987, the learned Additional District Judge, Rawalpindi, reversed the finding of the trial Court on the issue of limitation and decreed the suit of the respondent. This finding has been concurred with by the learned Single Judge.
6. In Civil Appeal No,2 of 1987, the suit of the respondents in respect of certain Khasra numbers was decreed by the trial Court. The appellants' plea that they were in possession of the suit land prior to attestation of mutation (issue No,5) was decided in the negative for lack of evidence. This finding has been upheld in appeal by the District Judge, D.I. Khan, and by the High Court in revision.
7. In both the cases, as the record stands, the sales of the suit lands were struck through sale agreements. These agreements did not materialise for one reason or the other, as a result of which the vendees moved the Courts of competent jurisdiction in suits for specific performance and got decrees on 17-4-1980 and 23-10-1977, respectively. Pursuant to the decrees, mutations were attested in Civil Appeal No,1 of 1987 on 21-6-1980 and in Civil Appeal No,2 of 1987 on 11-1-1981. The present suits for pre-emption have been filed in Civil Appeal No,1 of 1987 on 21-6-1981 and in Civil Appeal No,2 of 1987 on 7-1-1982.
8. The main controversy in both the appeals is whether the suits brought by the pre-emptors were within the time prescribed under sections 30 of the Punjab and 31 of the N.-W.F.P. Pre-emption Act 1913 and 1950, respectively.
9. The contention of the learned counsel for the appellant (in C.A. 1 of 1987) is that both the appellate and the revisional Court in this case have misread the evidence and have/ thus wrongly held that the suit of the respondent was within time. In support of his contention he submitted that limitation to bring a suit for pre-emption would not run from the date of attestation of mutation (21-6-1980) but from the date of delivery of possession of the suit land which in the case in hand was 13-2-1978. Reference in this rega#d was made to the receipt Exh.D.2 through which certain' amount was received by Mangta Khan vendor towards the Sale' consideration of the suit land and it was averred therein that the possession of the suit land had been delivered to the vendee/appellant. Reference was also made to the other two receipts which are Exhs. D.3 and D.4.
Besjdes the above, our attention was also invited to the statement made by Mangta Khan vendor at the Iris? Wherein he admitted the delivory of the possession of the suit land to the vendee/appellant and also to the statement made by Muhammad Razzaq respondent in the trial Court wherein he admitted that the delivery of possession of the suit land was made to the appellant in 1979. In view of the above evidence, the learned counsel for the appellant submited that the possession of the suit land was delivered to the appellant under the agreement to sell long before the date of attestation of mutation and thus the suit brought by the respondent was barred by time. As against the above, the learned counsel for the respondent supported the findings of the appellate and the revisional Court. The main thrust of his argument was that no right under the law, whatsoever, has been created in favour of the appellant because he has based his claim over the suit land on the strength of the agreement to sell only. He further submitted that even if the possession of the suit land had been delivered to the appellant, that delivery of possession was not 'under the sale' as provided for under section 38 of the Punjab Pre-emption Act, 1913, and, therefore, the date of limitation to bring a suit for pre-emption shall not run from the date of delivery of possession under the agreement to sell. Reliance was placed by him on two Indian authorities, viz. , Tola Ram v. Lorinda Ram (I L R 1922 Lah. 261) and Madho v. Mt. Mehro (AIR 1930 Lab. 33), and Muhammad Murad v. Pir Bakhsh and another (1984 CLC 1274 (Lab.)). He further submitted that in any case in the matter in hand the appellant has miserably failed to establish that possession of the suit land was delivered to him under the agreement to sell.
10. In Civil Appeal No,2 of 1987, Syed Safdar Hussain, the learned counsel for the appellants, submitted that the appellants had entered in physical possession of the land in dispute through a sale agreement executed on 24-12-1976 on payment of earnest money prior to the attestation of mutation. He submitted that the mutation could not be attested earlier because in the area in which the land in suit is situate, Chashma Right Bank Canal N.-W.F.P. Ordinance is in force and permission of sale of land was required to be obtained from the Commissioner, D.I. Khan. Since the possession of the suit land was delivered to the appellants on 24-12-1976, the suit was barred by time.
11. The case has been examined by us as a whole. Under section 21 of the Punjab Pre-emption Act, a right to sue accrues to a person when the sale or foreclosure has been completed. Under section 30 ibid, a period of one year has been prescribed to bring a suit for pre-emption. It shall either start from the date of attestation of sale mutation or from the date on which the vendee takes under the sale the physical possession of the land sold. The attestation of mutation or the delivery of physical possession is thus a notice to all persons to the effect that the former owner has relinquished all his ownership rights in favour of another person. It is no doubt true that an B agreement to sell simpliciter is not a sale for purposes of pre-emption, but when that very agreement to sell is followed by delivery of physical possession of the land sold, it. Cannot, by any stretch of imagination, be said that the delivery of possession was not under the sale. Therefore,- the first part of the argument of the learned counsel for the respondent is untenable. The authorities relied upon are distinguishable.
12. We have now to examine whether in the two appeals the appellants have established that they had obtained possession of- the suit lands under the agreements to sell. In Civil Appeal No,1 of 1987, the learned Single Judge while agreeing with the finding of the appellate Court, recorded his finding against the appellant in the following terms: "Learned counsel for the petitioner has contended that transfer of possession of 1/4th share in the land, which was owned by Mangta Khan had been delivered to the petitioner on 13-2-1978 when the agreement to sell was executed by him after receiving the total price of the land amounting to Rs,25,000. According to the learned counsel, respondent's suit for pre-emption was not within time in so far as the aforementioned 1/4th share of the -land was concerned. There is, however, no force in the above contention because the learned counsel has failed to show any evidence on the record that possession of any part of the suit land was delivered by Mangta Khan in 1978.
According to the agreement to sell entered into by Mantga. Khan, the entire land comprising the joint Khata was agreed to be sold to the petitioner. Out of this land 314th share had already been sold by his co-sharers. The bargain of sale being indivisible, it was inconceivable that possession of a part of the land could be delivered to the prospective vendee. It is not possible to accept the petitioner's contention that the sale of the suit land had in fact been completed in 1978 because 3/4th share in it was not available for transfer to the petitioner, as it had already been sold to some other person. The fact that the respondent was obliged to institute a suit for specific performance of the agreement to sell, dated 13-2-1978 also disproves the petitioner's contention that the sale of the disputed land had been completed when the agreement to sell in respect thereof was executed by Mangta Khan. The transaction of sale was completed after the passing of the decree in the suit for specific performance of agreement to sell on attestation of the mutation of sale on 21-6-1980. Respondent's suit to pre-empt the aforementioned sale instituted on 20-6-1981 was well within time. The finding of the learned Additional District Judge in favour of the respondent on the point of limitation is, therefore, unexceptionable."
The various pieces of evidence relied upon by the learned counsel for the appellant when looked into in the light of the above have led us to the conclusion that the suit filed by the respondent was within time. Though in the document marked Exh.D.2 executed by Mangta Khan vendor in favour of the appellant on 13-2-1978, which is the first in series of documents executed by Mangta Khan, it has been mentioned that the possession of the land in dispute has been delivered to the appellant, but then the Iqrarnama executed by Mangta Khan on 31-7-1979 marked Exh. D,1 has made a significant departure from the document Exh.D.2. Its perusal shows that Mangta Khan himself was not in possession of the suit land, therefore, the question of its delivery to the appellant 1i8 not arise.
The fact that the possession of the suit land was not delivered to the appellant under the agreement to sell is further supported by a suit brought by the appellant against Mangta Khan vendor for possession of the suit land by specific performance in February 1980. In the proceedings, which culminated in a decree in favour of the appellant, Mangta Khan, on 15-3-11180 has stated: {{URDU TEXT}} ' The only piece of evidence of which capital has been made by the learned counsel for the appellant in this case was the admission made by the respondent in the present suit that the delivery of possession of the suit land was made to the appellant in 1979. But then in view of the overwhelming evidence brought on the record to the contrary, we are clear in our mind that this admission which is wrong on a point of fact or is made in ignorance of a legal right has no binding effect on the person making it. Reliance in this respect has been rightly placed by the learned Additional District Judge on the authority of this Court reported as Ahmad Khan v. Rasul Shah PLO 1975 SC 311.
13. As for Civil Appeal No,2 of 1987, there is consistent evidence on the record that the possession of the suit land was with the tenants. The appellants have miserably failed to bring on the record that after the alleged agreement to sell, the tenants had attorned to them. The above factual position has not been controverted by the learned counsel for the appellants.
14. As a result of the above, we hold that in both the cases the possession of the lands in dispute had not been delivered to the appellants/vendees under the agreements to sell and that the suits brought by the respondents/pre-emptors have rightly been held to be within time. The appeals are dismissed with costs.