MIAN NAZIR AKHTAR J.- This Regular Second Appeal arises out of a suit for possession through pre- emption filed by Shahbaz Khan and Muhammad Hanif Khan, respondents, on 14.9.1974 in the Court of the Administrative Civil Judge Mianwali, to pre-empt the sale of the land measuring 97 Kanals 6 marlas situated in the area of mauza Shahbaz Khel Pakka tehsil and District Mianwali. The land was orally sold by Isab Khan for a sum of Rs.80,000/- in favour of the appellant. Thereafter the appellant obtained a declaratory decree regarding his title over the disputed land on 18.7.1973 and a mutation was also sanctioned in favour of the appellant on 15.9.1973. The respondents filed a suit for possession through pre-emption on 14.9.1974 claiming therein that the land was actually sold for a sum of Rs.34,000/- and that they, being sons of the vendor, enjoyed superior right of pre- emption.
2. The trial Court decreed the suit in favour of the respondents, vide the judgment and decree dated 18.12.1977. The appellant initially filed Regular First Appeal in this Court but subsequently, when the pecuniary jurisdiction of the District Judges was enhanced to Rs.50,000/-, the appeal was sent to the District Judge, Mianwali, for disposal. It was entrusted to the Additional Distract Judge, Mianwali, who dismissed the same, vide his judgement and decree dated 17.4.1980.
3. I have heard the learned Counsel for the parties and perused the relevant record. The learned Counsel for the appellant contended that the sale was orally effected but subsequently, a declaratory decree was passed in favour of the appellant on 18.7.1973. Hence, counting the limitation from 18.7.1973, the suit filed by the respondents on 14.9.1974 was clearly barred by the. He urged that physical possession of the land was immediately delivered to the appellant after the oral sale and that delivery of possession amounted to notice to the public at large. Therefore, the suit filed by the respondents was barred by virtue of the provisions of section 30 of the Punjab Pre- emption Act, 1913. He placed reliance on Sher Muhammad versus Rajada and another (PLD 1969 Lahore 471). On the other hand, the learned counsel for the respondents urged that the land was in possession of the tenants and no change of possession had taken place even in Kharif, 1974, as was evident from a copy of the Khasra girdawari Ex.p.2. He submitted that the limitation had to be counted from the date of attestation of the mutation which took place on 15.9.1973. He placed reliance on the cases of Muhammad Sarwar versus Feroz Khan and another (PLD 1951 Lahore 169), Sakhi Muhammad versus Khan (1989 CLC 1794), Sardar Muhammad vs Muhammad Sharif Khan (PLD 1983 Lahore 416) and H. Niamat Ullah Khan versus Mst Shabnam and others (1974 SCMR 425).
4. The limitation in pre- emption cases is governed by Article 10 erf the Limitation Act. The suit has to be filed within a period of one year from the date 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 cases not covered by Article 10 of the Limitation Act are to be dealt with under section 30 of the Punjab Pre-emption Act, which provide that in any case not provided for by Article 10 of the Second Schedule of the Limitation Act, the period of Limitation a suit for pre-emption shall be one year to be counted from the date of attestation of the sale by a revenue officer having jurisdiction in the register of mutations or from the date on which the vendee takes, under the sale, physical possession of any part of such land or property whichever date be earlier. Obviously, both the provisions of the law referred to above do not create any room for counting the period of limitation from the date of a declaratory decree obtained by the vendee (in the absence of the pre- emption). The limitation has to be counted either from the date of delivery of possession of the land or the date of registration of the sale deed or attestation of the mutation by a revenue officer.
In the present case, admittedly, possession was already with the tenants, who continued to occupy the same even after attestation of the mutation in favour of the vendee/appellant. This is evident from perusal of the Khasra girdawari Ex.P.2. Therefore, there was nothing to show that possession had really been taken away from the original owner, i.e. The vendor and physically handed over to the vendee so as to constitute notice to the public at large, including the preemptors regarding change of ownership. Hence, limitation in the present case would be governed by the provisions of section 30 of the Punjab Pre-emption Act and be counted from the date of attestation of mutation, i.e. 15.9.1973. The suit instituted on 14.9.1973 was clearly within the. The judgement in the case of Sher Muhammad Vs Rajada and another (PLD 1969 Lahore 471), relied upon by the learned counsal for the appellant, is inapplicable to the facts of the present case. In that case, there was clear evidence of delivery of possession to the vendee in pursuance of the oral sale. It was held that the delivery of possession amounted to notice to the public at large. Hence, the suit filed in the year 1957 was held to be barred by the. In the case of Muhammad Sarwar vs Feroz Khan and another (PLD 1951 Lahore 169), a Division Bench of this Court had held that the object of delivering physical possession was to give notice to all concerned of the transfer of title in favour of the vendee. The Court observed that some concert and visible step in the matter of taking physical possession by the vendee such as ploughing the land or fencing it round should be proved if the was to be counted from the date of delivery of possession, otherwise, the the should be counted either from the date of the registration of the sale deed or the date of attestation of the mutation. In Sardar's case, it was held that delivery of actual physical possession must be established conclusively by affirmative evidence, failing which the period of limitation was to be reckoned from the date of attestation of mutation. In the present case, as observed above, there was no evidence regarding the change of physical possession over the disputed land because the land was being cultivated by tenants under the vendor, who continued to remain in possession even after the sale. Therefore, the limitation in the present case was rightly counted by the Courts below from the date of attestation of mutation. The Courts below have rightly held that the suit was within the. Admittedly, the respondents are sons of Isab Khan, the vendor, and had superior right of pre-emption. The trial Court rightly decreed the suit of the respondents. I find no merit in this appeal, which is dismissed, leaving the parties to bear their own costs.