Facts giving rise to this civil revision are that the petitioner, Rehmat Ali and respondent No.2, Fateh Sher, filed a suit against one Murad Bakhsh, seeking a declaration -to the effect that Murad Bakhsh had transferred certain land in favour of the petitioner and respondent No.2 by means of an oral sale and they had, therefore, become owners of the said land. The vendees also claimed to be in possession of the land in dispute and prayed for permanent injunction restraining the said Murad Bakhsh from interfering with their possession over the land in question. Murad Bakhsh entered appearance in the suit and confessed judgment whereupon a consent decree was passed on 6th July, 1976 in favour of the petitioner and respondent No.2. Taking this date as the date of sale of the land in their favour, respondent No.1, Mst. Allah Wasai filed a suit for possession of the said land, through pre-emption. The suit was resisted by the petitioner and respondent No.2, but it was ultimately decreed by a Civil Judge. The petitioner went in appeal against the judgment and decree passed by the learned trial Court, but in vain. He has, therefore, come up in revision to this Court.
2. Only finding of the two Courts below which. Has been assailed before me is on the issue of limitation. There is no dispute on the proposition that the pre-emption suit was within time if the date of consent decree, namely, 6th July, 1976, were treated as the date from which one year's period of limitation was to be computed. Averment of the vendees (petitioner and respondent No.2), however, was that the oral sale in their favour had taken place on 20th June, 1976 and possession of the land thus sold to them was also taken by them on the said date, i.e., 20th June, 1976, before the passing of the consent decree. According to the vendees, therefore, the period of limitation would be reckoned from the date on which they took possession of the land in dispute and as such the pre-emption suit was time-barred with reference to that date, namely, 20th June, 1976. The pre-emption suit was brought on 30th June, 1977. The vendees' plea was not accepted by the two Courts below and, by computing the period of limitation from the date of consent decree9- the suit was found to be within time.
3. Questioning the finding of the learned lower Courts on the question of limitation, it was urged by learned counsel for the petitioner that since the sale in dispute had not been effected by means of a registered deed nor any mutation had been attested in regard thereto, the period of limitation would be reckoned from the date on which the vendees took possession of the land in question, under the oral sale. Learned counsel for the petitioner referred me to the statement of the pre- emptor, Mst. Allah Wasai, as P.W.1 in which it was admitted by her that the sale in question had taken place 2-1/2 years before the date on which she entered the witness-box and that the vendees were in possession of the land in question since the date of its sale in their favour. She appeared as a witness on 16th October, 1978. Thus, according to the statement of the pre-emptor, the vendees got possession of the disputed land under the oral sale on 16th April, 1976. In view of her statement, it was contended by learned counsel for the petitioner that the pre-emption suit filed on 30th June, 1977 was time-barred. In order to support his argument, he placed reliance on Article 10 of the First Schedule to the Limitation Act, 1908 and section 30 of the Punjab Pre-emption Act, 1913.
4. On the other hand, it was submitted by learned counsel for the pre--emptor that in the circumstances of the instant case neither Article 10 of the First Schedule to the Limitation Act nor section 30 of the Punjab Pre:-emption Act would apply and that the case would be governed by the residuary Article of the said Schedule, namely, Article 120. It was also urged by him that the land sold was part of a joint Khata and as it was not capable of physical possession, possession is immaterial in the present case. It was further pleaded by him that according to the petitioner's own evidence, possession was taken by them at the time of the payment of the sale price, by means of receipt Exh.D.1 and that the said receipt was executed on 6th July, 1976 which is the same date on which the consent decree was passed.
5. 1 am afraid the receipt Exh.D.1 does not advance the case of the pre--emptor because' it is evident from the statement of Wali Muhammad (D.W3) that the receipt-was executed subsequent to the payment of sale price. It was also deposed by the scribe of the receipt, namely, Abdul Ghafoor Bhatti as D.W.3 that nothing was paid in his presence and that he was told that the payment had already been made. To the same effect is the statement of Muhammad Asghar (D.W.2), who is a marginal witness of the receipt. Fateh Sher, who is one of the vendees in the instant case, appeared as D.W.2 and said that no document was executed at the time of sale.
Rehmat Ali, petitioner, who is other vendee, said, as D.W.4, that receipt was written but he did not say, in so many words, that it was scribed "at the time of sale. Assuming, without conceding, that the sale price was paid on the date appearing on the, receipt, this also does not warrant a conclusion that sale had not been made earlier especially when it was clearly admitted by the pre-emptor herself that sale had taken place 2-1/2 years back and possession thereunder was also taken by the vendees as soon as the sale was effected. Keeping all this in view, I hold that the receipt Exh.D.1 is of no avail to the pre-emptor, Mst. Allah Wasai inasmuch as it pales into insignificance in the face of her aforementioned admission. Relying on her statement, therefore, I hold that the vendees got possession of the disputed land on 16th April, 1976, under the sale in question.
6. As for the plea of learned counsel for the pre-emptor that the land being a part of a joint Khata was not capable of physical possession, there are several authorities on the point that specific portion of joint land can be sold by a joint owner of such land if he is in exclusive possession of that portion of the joint land for a long period and that its possession can also be delivered to the vendee under the sale made by him. In such cases, however, the vendee takes possession of the land sold to him subject to partition of the joint land. Cases of Muhammad Muzaffar Khan v.
Muhammad Yusuf Khan PLD 1959 Supreme Court (Pak.) 9, Sayed Jamal Shah v. Abdul Oadir Shah and others PLD 1955 Peshawar 26 and Jalaluddin Khan v. Rampal and others AIR 1927 Oudh 467 are some of the authorities in point.
7. In the case of Muhammad Muzaffar Khan, the Supreme Court of Pakistan ruled as follows:--- "The vendee of a co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers. The vendee must be regarded as stepping.
Into the shoes o his transferor qua his ownership rights in the joint property to the extent of the area purchased by him, ]provided that the area in question does not exceed the share which the transferor owns in the whole proper1y. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner. In an undivided Khata, does not become a co- sharer in that Khata,"
(Underlining is by me).
Opinion delivered by the Peshawar High Court in Sayed Jamal Shah's case reads as under:--- a person, who is in exclusive possession of a certain portion of Joint property can alienate that property. But then the alienation will be subject to any adjustment which takes place at the time of the partition of the joint property and the person, to whom that joint property is allotted, shall take that property free of such alienation."
(Underlining is mine)
While deciding the case of Jalaluddin Khan, the High Court of Oudh expressed the following vievr-- one co-sharer has no right to appropriate to himself a specific portion of the common land, and to exclude his co-sharers from all use and enjoyment of the same without a lawful partition. But where a person has been in possession Of a piece of joint land for a long time without any let or hindrance by the other co-sharers. The latter have no enjoyment otherwise than by seeking partition. Such a co-sharer or his transferee is entitled to continue in such possession. So long as such user does not interfere with the use by other co-sharers of what is in their possession."
(Underlining is by me).
8. It is not the case of the pre-emptor that the vendor in the instant case, namely, Murad Bakhsh was not in exclusive possession of the disputed land for a long time before it was sold by him to the vendees. On the other hand, the categorical statement of the pre-emptor that the petitioner took possession of the land in dispute as soon as it was sold to him indicates that the land was in exclusive possession of the vend * or and so it was occupied by the vendees under the sale. I am, therefore, unable to agree with learned counsel for the pre emptor that since the disputed property was a part of joint Khata it was not capable of physical possession and as such possession has nothing to do with the question of limitation.
9. It is abundantly clear from the first part of entry in column 3, appearing against Article 10 of the First Schedule to the Limitation Act that if physical possession of whole of the property sold isdelivered in consequence of a sale, the period of limitation would run from the date of such possession. It has also been laid down in section 30 of the Punjab Pre-emption Act that in the case of a sale of agricultural land or of village immovable property, one year's period of limitation would run from the date of the attestation (if any) 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 shall be the, earlier. Admittedly, no mutation had been attested in regard to the sale in the case in hand before the pre-emption suit was instituted. Date of possession under the sale is, therefore, the date which matters in this case.
According to the statement of the pre-emptor, Mst. Allah Wasai the vendees were in possession of the disputed land, under the sale made in their favour, for more than one year when the pre- emptionsuit was filed by her. Thus, her suit was barred both under Article o of the First Schedule to the Limitation Act as well as under section 30 of the Punjab Pre-emption Act because the period of limitation in both the cases is one year from the date of possession.
10. As for Article 1-20 of the First Schedule to the Limitation Act, it is a I residuary provision and applies to that case only which is not covered by any specific provision of the said Schedule. Since the present case clearly falls under Article 10 of the said Schedule, Article 120 cannot be made use of in the instant case. It is also noteworthy that section 30 of the Punjab Pre-emption Act overrides the provisions of Article 120 in the following words:--- ---30. Limitation --- in any case not provided for by Article 10 of the second Schedule of the Limitation Act, 1908, the period oflimitation in a suit 01 to enforce a right of pre-emption under the provisions of this Act, shall, notwithstanding anything in Article 120 of the said Schedule be one year.
(1)in the case of a sale of agricultural or village immovable property, from the date of the attestation (if any) of the sale by a Revenue Officer, having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887,or from the date on which the vendee takes under the sale physical possession of any part of such land or property, whichever date shall be the earlier;"
(Underlining is by me).
I am, therefore, of the considered view that Article 120 is not attracted to the case before me.
11. While examining the question of limitation, what is to be seen pre--emption cases is the date of notice of sale to the pre-emptor. In the case in hand, according-to her own admission, it was on 16th April, 1976 that the pre--emptor, Mst. Allah Wasai got notice of the fact that the vendees had purchased the disputed land and had also taken possession of the said land under the sale in question. Thus, the date of possession, i.e., 16th April, 1976 is the date from F which one year's period of limitation would run against her. When so computed, the period of limitation had expired long before the suit was filed by her. Similar view was expressed by me in Murid Hussain and another v.
Muhammad Shari and another 1980 CLC 1753 (Lahore) in the following words:--- 'A bare reading of section 30 of the Punjab Pre-emption Act, 1913 together with Article 10 of the Limitation Act, 1908 would show that if was intended by the Legislature that in the case of a suit for pre-emption, the period of limitation should run from the taking place of such developments touching the sale of land or other property as would give a clear notice thereof to the prospective pre-emptors so that it" any of them wants to pre-empt the sale, he may do so within one year of becoming aware of the safe. These developments, as enumerated in the section 30 read with Article 10, are three, namely, registration of the sale-deed incorporating the sale, if it is made in writing; attestation of mutation of sale, if the sale is oral; and taking of physical possession under the sale. It Ls, too well known that the registration of a document is notice to the whole world.
Similarly, the attestation of mutation is widely publicised inasmuch as it is attested it in the common assembly. Likewise, the delivery of physical possession tothe vendor, under the sale, as envisaged by the framers of law, is the one which is publicly demonstrated so that it serves as a clear notice to the whole world that he had purchased the land (see- Kamal Khar I v. Sikandar Khan PLD 1951 Pesh. 57)."
12. Upshot of the foregoing discussion is that in the. Instant case period of limitation is to be reckoned from the date on which possession of the disputed land was taken by the vendees under the oral sale made in their favour and since: the pre- emptor Mst. Allah Wasai had filed the suit when the vendees had remained in possession of the said land, under that sale, for more than one year,, her suit was time-barred. It was, therefore, liable to be dismissed on the ground of limitation.
13. In view of the above finding, this revision is accepted, judgments and decrees passed by the two Courts below are set aside and the suit of respondent No.1 (pre-emptor), namely, Mst. Allah Wasai is dismissed-- Looking at the peculiar circumstances of this case, however, I leave the parties to bear their own costs throughout.
A.A./R-27/L Revision. Accepted.