' ZIA MAHMOOD MIRZA, J.--This petition filed by the defendant/vendee seeks leave to appeal against the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 1-6-1994 dismissing his revision petition and maintaining the judgment and decree of the Court below.
2. Facts relevant for the disposal of this petition, briefly stated, are that the land measuring 290 Kanals 16 Marlas was sold by its owner to the present petitioner vide Mutation No,1731 dated 24-7- 1972. The respondent brought a suit to pre-empt this sale claiming superior pre-emptive right on the ground that he was a co-sharer in the Khata and also owner in the estate. The suit was contested by the petitioner denying the respondent's claim of superior right of pre-emption. He also contended that the sale was made and possession of the suit land delivered to him much before the attestation of mutation and, therefore, the respondent's suit filed one year after the petitioner had taken possession was time-barred. Pleadings of the parties gave rise to as many as 12 issues out of which issues Nos.1 and 8 pertaining to the bar of limitation and the respondent's claim of superior pre-emptive right being the crucial issues are reproduced hereunder:--
(1) Whether the suit is barred by limitation? OPD
(8) Whether the plaintiff has got a superior right of pre-emption? OPP
3. Plaintiff/respondent produced copies of Jamabandi Exh.P-14 and Exh.P-15 to substantiate his claim of superior right of pre-emption. Petitioner, on the other hand, produced copies of mutations Exh.D-7 to Exh.D-13 to show that the plaintiff did not have valid title in the land on the basis of which he claimed right of pre-emption. Petitioner also led evidence to show that the sale in his favour was completed much earlier and he had also obtained possession of the suit land before the sale mutation was sanctioned. Learned trial Court after examining various mutations placed on record by the petitioner came to the conclusion that "since the plaintiff has got no perfect title in the land on the basis of which he claims his right superior to that of the vendee, therefore, he cannot be held to be a co-sharer in the disputed Khatas". Issue No,8 was accordingly decided against the plaintiff.
Issue of limitation was, however, found against the petitioner and in favour of the respondent with the observation that the suit land being admittedly a fractional share in the joint holding did not admit of physical possession and, therefore, limitation started from the date of attestation of the mutation. It was further observed that the recital in the agreement Exh.D-3 was no proof of delivery of possession to the defendant. In view of the finding on issue No,1, however, the suit was dismissed by the trial Court vide judgment dated 19-10-1977.
4. On appeal filed by the respondent, the learned Additional District Judge affirmed the finding of the trial Court on the question of limitation and reversed its finding on the issue of superior pre- emptive right of the respondent holding that the copies of Jamabandi for the year 1972-73 (Exh.P- 14) and for the year 1968-69 (Exh.P-15) proved that the plaintiff was co-owner of the suit land. With respect to the adverse finding of the trial Court regarding the plaintiffs title in the land on the basis of which he claimed superior right of pre-emption, the learned Additional District Judge after surveying all the relevant transactions came to the conclusion that the petitioner led no evidence casting doubt on the title of the respondent at least to the extent of 70 Kanals 15 Marlas of land owned by him. With these findings, the learned Additional District Judge by his judgment dated 11- 5-1982 accepted the respondent's appeal and decreed his suit, setting aside the judgment and decree of the trial Court.
5. Feeling aggrieved, petitioner invoked revisional jurisdiction of the High Court but with no better result as the revision petition was dismissed by a learned Judge of the High Court upholding the findings of the Courts below on the issue of limitation as also the finding of the lower Appellate Court regarding the superior right of pre-emption claimed by the respondent. The learned Single Judge held that since it was an oral sale effected through a mutation, the limitation would run from the date of attestation of mutation and that the entry made by Patwari in `Roznamcha Waqiati' as to the delivery of possession "was not sufficient to record finding that the limitation started from the date on which the possession delivered in terms of such report". The learned Judge found on the basis of the Jamabandis Exh.P.15 that the respondent was proved to be a co-sharer in the Khata and owner in the estate. He also affirmed the finding of the lower Appellate Court with respect to the respondent's title in the land on the basis of which he claimed superior preemptive right.
6. Learned counsel appearing in support of this petition mainly contended the findings of the Courts below on the issue of limitation. His submission was that the bargain in respect of the suit land was struck on 10-6-1972 when the petitioner paid Rs,10,000 as earnest money to the vendor vide receipt Exh.D-1 and possession of the suit land, too, was delivered to the petitioner on that date. Formal agreement of sale Exh.D-3, it was stated, was executed a month thereafter i,e,, on 10- 7-1972 and the factum of sale was recorded in `Roznamcha Waqiati' dated 10-7-1972. In the circumstances, it was contended that the suit filed by the respondent on 24-7-1973 was time- barred with reference to the date of delivery of possession viz. 10-6-1972. Learned counsel also sought to contend that the sale mutation Ex.P-3 was placed before the Revenue Officer on 20-7- 1972 when the vendor and the vendee, the petitioner herein appeared and acknowledged the factum of the sale of the suit land, delivery of its possession and the payment of the sale price.
Formal attestation was, however, postponed for the reason that some tax on fee had not been paid. The mutation was then formally sanctioned on 24-7-1972 after the payment of tax/fee.
Argument of the learned counsel was that the mutation should be deemed to have been sanctioned on 20-7-1972 when the parties to the sale admitted the factum of sale, the payment of consideration and delivery of possession and, therefore, the suit should have been brought by or before 20-7-1973 even if the limitation was to be reckoned from the date of attestation of mutation.
In support of his submissions, learned counsel relied upon Niaz Ahmad and others v. Mian Abdul Rahman and others PLD 1961 (W.P.) Baghdad-ul-Jadid 1, Sher Muhammad v. Rajada and another PLD 1981 SC 591 and Khushi Muhammad v. Mst. Nazir Begum etc. 1989 CLC 1984.
7. We have considered the submissions made by the learned counsel for the petitioner and find no force in them. Law regarding limitation applicable to the pre-emption suits at the relevant time was contained in section 30 of the Punjab Pre-Emption Act, 1913 and Article 10 of the Limitation Act.
Section 30 of the Pre-emption Act to the extent relevant for the purpose of the present case is reproduced hereunder:- "30. Limitation.--In any case not provided for by Article 10 of the Second Schedule of Limitation Act, 1908, the period of limitation in a suit 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 land or of 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;"
' Article 10 of the Limitation Act fixed the period of limitation for a suit to enforce the right of pre- emption at one year starting from a 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.
8. It is manifest from the provisions afore-referred that in a case like the present one where the sale sought to be pre-empted is of agricultural land and is effected through mutation, limitation period of one year would start from the date of attestation of mutation by the Revenue Officer or from the date on which the vendee took the physical possession of any part of the land. Limitation is, of course, to be reckoned from earlier of the two dates. In the present case, the sale mutation was attested on 24-7-1972. Case of the petitioner, however, is that he had taken possession of the suit land on 10-6-1972 when the bargain was struck and he had paid Rs,10,000 as earnest money to the vendor and, therefore, the limitation started running from that date and the suit instituted by the respondent more than one year thereafter was hit by the bar of limitation. To support the contention regarding the taking of possession by the petitioner prior to the attestation of the mutation, learned counsel relied upon the recitals in the receipt dated 10-6-1972 Ex.D-1, the sale agreement dated 10-7-1972 Exh.D-3, `Roznamcha Waqiati' dated 10-7-1972 Exh.D-15 and the statements of the parties to the sale referred to in the order of the Revenue Officer on the sak mutation Exh.P-3. All this evidence, in our view, is not of a nature and character as was required to establish the actual delivery of physical possession which was intended to serve as a notice to all the prospective pre-emptors. Needless to observe that the recitals in the agreement, the statement of the vendor before the Patwari and even the statements of the vendor and/or the vendee before the Revenue Officer may be of some use to them but they cannot bind the pre- emptor. It may also be worthwhile to point out that in none of these documents, mode and manner of so-called transfer of possession was mentioned. In the report made by the Patwari while entering the mutation, there is no mention of transfer of possession at all and again in the first order passed by the Revenue Officer on the mutation, there is no reference to the date of delivery of possession and strangely enough in the final order attesting the mutation, transfer of possession was stated to have taken place on 20-3-1972. Apart from these infirmities, on closer examination of the mutation Exh.P-3, we find that it was entered by the Patwari on 10-3-1972, it was placed before the Revenue Officer for the first time on 20-3-1972 when he postponed it owing to the nonpayment of some tax and finally it was attested on 24-7-1972. The dates entered in the mutation which the learned counsel for the petitioner was unable to controvert or explain away totally belie the documents Exh.D-1 and Exh.D-3 which appeared to have fabricated with a view to set up the plea of limitation based on taking of possession on a date prior to the attestation of mutation. At this stage, we would also like to point out that even the Khasra Girdawri produced by the petitioner to Exh.D-4 relating to Kharif 1972 and Rabi, 1973, as observed by the learned Additional District Judge "does not show if the vendee entered into physical possession of the disputed piece of land prior to the attestation of the mutation (Exh.P-3) on 24-7-1972." There is also no merit in the petitioner's contention that because the vendor and the vendee had appeared before the Revenue Officer on 20-7-1972 and admitted the factum of sale and transfer of possession, the mutation should be deemed to have been attested on that date. As shown above, the position taken by the learned counsel is factually incorrect. The matter was placed before the Revenue Officer on 20-3-1972 and not 20-7-1972. Even otherwise, the proceedings taken on the mutation in question leave no room for doubt that the mutation was in fact sanctioned/attested on 24-7-1972 and, therefore, the limitation started from that date and not from 20-7-1972 as contended by the learned counsel.
Case of Sher Muhammad v. Rajada on which the learned counsel has placed reliance in this behalf is distinguishable on facts. In that case, the sale was completed and the possession was actually delivered to the vendees and they came to be recorded as in possession under the sale. The mutation was, however, not attested owing to same legal infirmity or prohibition. On these facts, it was held that the sale on its completion had become pre-emptible and mere non-attestation of the mutation could not postpone the effect of the sale. The relevant observation may be reproduced with advantage. "Where possession had been so obtained and there is a public notice of it in the manner in which it has taken place in this case the limitation would start from the date the vendees came into possession of the land and the suit was evidently beyond time". The other two cases cited by the learned counsel are also of no help to the petition.
Upshot of the above discussion is that the learned Courts below were perfectly justified in taking the view that the petitioner had failed to establish that he had taken physical possession of the suit land prior to the attestation of the mutation. It has, therefore, been rightly held that the limitation started from the date of attestation of the mutation and as such the suit brought by the respondent on 24-7-1973 was within time. Finding recorded by all the three learned Courts on the question of limitation, in our view, is unexceptionable. We would also like to observe that the respondent had successfully proved his superior pre-emptive right which the learned High Court and the appellate Court below have rightly found in his favour after due appraisal of the relevant material on the record. We accordingly find no merit in this petition which is dismissed and the leave sought is refused.