' IRSHAD HASAN KHAN, J.---This appeal, with the leave of the Court is directed against the judgment, dated 30-1-1993, passed by a learned Single Judge of the Lahore High Court, Lahore in R.S.A. No,127 of 1988, whereby the appeal of the respondents was accepted.
2. The brief facts are that the appellant had purchased land measuring 114 Kanals situate in Chak.
No, 190/NB, District Sargodha, in consideration of a sum of. Rs,58,500, from Muhammad Hayat son of Raja vendor, on the basis of a decree from the Court, dated 8-12-1977 whereafter in execution of the decree, Mutation No,318 was entered on 10-1-1980, which was rejected by the Revenue Officer as permission of the Collector was required for the sale under section 19 of the Punjab Colonization of Government Lands Act. However, order of the Revenue Officer, dated 104-1980 was set aside on 28-6-1980, in appeal , with the result that mutation No,318 was sanctioned on 30-9-1980 in favour of the appellant.
3. Nabi Bakhsh deceased, represented by respondents, filed a suit for preemption on 29-9-1981, which was decreed in his favour by the learned Civil Judge by judgment and decree, dated 15-4- 1986. The appellant filed appeal before the learned Additional District Judge and the same was accepted by judgment and decree, dated 22-5-1988, with the result that the suit was dismissed.
The learned first appellate Court reversed the findings of the trial Court under issue No,4 whereunder the suit was held to be barred by the time as also upset the. Findings of the trial Court under issue No,5 by holding that plaintiff did not possess the superior right of pre-emption. The respondents preferred R.F.A. No,127 of 1988 before the Lahore High Court, Lahore which was accepted vide the impugned judgment and decree dated 30-1-1993, as stated above.
4. Leave to appeal was granted to consider whether in the facts and circumstances of the case the period of limitation in a suit to enforce a right of pre-emption is covered by section 30 of the Punjab Pre-emption Act, 1913 (I of 1913) (hereinafter called the Pre-emption Act) or Article 120 of the Limitation Act, 1908).
5. Mr. Riyasat Ali Chaudhary, learned Advocate Supreme Court for the appellant argued that the mutation of sale was entered on 10-1-1980 but it was rejected by the Revenue Officer under section 19 of the Punjab Colonization of Government Land Act. However, on appeal, order of the Revenue Officer was set aside and mutation was sanctioned on 30-9-1980. It was, however, incorporated in the arbitration award, dated 16-10-1977 (Exh.P.6), that the land had been sold and possession had been given to the vendee, therefore, the suit was barred by limitation and as such the findings of the learned Judge in Chambers under issue No,4, relating to limitation, were not sustainable in law.
6. The precise submission of Mr. Riyasat Ali is that although the mutation was initially rejected on 10-1-1980 but as the contents of the report included the factum of possession having passed on to the vendees, therefore, the instant suit seeking possession through pre-emption was beyond time.
In support of his contentions, reliance was placed on Sher Muhammad v. Rajada (PLD 1981 SC 591), wherein while examining the provisions of section 8 of the Punjab Agricultural Income-tax Act, (XI of 1951) read with section 21 of the Preemption Act, it was held that where sale was complete in 1951 when possession was delivered to the vendees and they came to be recorded as in possession under the sale, it became a pre-emptible transaction and mere non-attestation of mutation as such could not postpone the effect of sale or entitle the pre-emptor to enlargement of time. It was further held that limitation in such circumstances started from the date the vendee came into possession of land and the sale having been completed in 1951, suit instituted by reference to attestation of mutation in 1956 could not be within time.
' Reference was also made to Mst. Amir Bano v. Jan Muhammad 1992 SCMR 843, wherein this Court while interpreting the scope of section 30 of the Pre-emption Act, held that the first part of section 30(1) related to attestation of sale while second part related to physical possession. There is no reference in this provision that possession must be followed by attestation. The two parts of section 30(1) refer to two different situations. In the first part, the starting point for limitation is the attestation of the mutation and the second part from the date of delivery of possession.
' Reliance was also placed on Faiz Bakhsh v. Faqir Muhammad (1997 SCMR 617), wherein it was held that the period of one year prescribed by section 30 ibid, for filing a suit to enforce a right of pre- emption, would commence either from the date of attestation of the sale by a Revenue Officer charged with sanction of -mutation or from the date on which the vendee takes over physical possession of any part of the land under the sale, whichever was earlier.
' The case of Allah Yar v. Raja (1989 SCMR 802), was also pressed into service to contend that where suit mutation was attested long after delivery of possession of land to vendee under the sale, pre- emption suit brought within one year from attestation of suit but beyond one year from delivery of physical possession to vendee, would not be within time.
7. Mr. Muhammad Hussain Awan, learned counsel for the respondents argued that in terms of section 30 (ibid), if possession under the sale is proved before attestation of mutation within a period of one year, limitation will start 'from the date of delivery of possession. If that is not the case it will start from the date-of attestation of mutation. He argued that it was never the case of the appellant in his written statement that possession was delivered on '10-1-1980. The High. Court was, therefore, right to compute the period of limitation from the date of attestation of the mutation i.e, 30-9-1980. He next submitted that Exh.P6. Is a document, though produced by the plaintiff before the trial Court but the same could not be looked into for the purpose of computation of limitation, inasmuch as, the necessity of that document arose out of a plea taken in the written statement to the effect that the sale took place from the date of the decree, dated 8-12-1977. Mr. Awan vehemently argued that Exh.P.6 is a document between the vendee and the vendor. The respondents are not party to the said documents, therefore, unless and until the delivery of possession is proved by the independent evidence including the statement made by the vendee in the Court by producing Khasra Girdawari or by Jamabandi for the relevant period, which are the primary evidence of delivery of possession, it cannot be presumed that period of limitation shall commence. Mr. Awan further submitted that it was also not the case of the appellant that he obtained possession at the time of the decree nor any such statement was made in the written statement or in Court by D.W.4. He argued that even if the sale is taken to be under the decree, the limitation will be six years under Article 120 of the Limitation Act. In support of his contentions, reliance was placed on H. Niamatullah Khan v. Mst. Shabnama (1974 SCMR 425), wherein it was observed, "the seventeen sale-deeds being unregistered the suit was not governed by Article 10 of the Limitation Act, 1908. Similarly, section 31 of the N.-W.F.P. Pre-emption Act, did not apply because the sale being that of a house, no mutation was sanctioned and it was found by the Courts below that it was not proved that the petitioner as vendee entered into possession of the house under sale in his favour. Such being the case, the 'suit will fall under the residuary Article 120, for which the limitation is six years".
' The following observations in the case of Khushi Yar and others v. Risaldar Malik Nawab Khan, and others (PLD 1987 Lah. 127), were also pressed into service:-- "(5) More than one situation can be visualised where a property sold may not be capable of being physically possessed by vendee. For instance, it may be in the possession of a mortgagee or be in the occupation of a tenant. Another example thereof stands provided by this case wherein the land sold, as mentioned already, in 41/192nd share, of a joint Khata land measuring 532 Kanals, 3 Marlas, amounting to 118 Kanals'', 17 Marlas which cannot be a perceptible entity to become a tangible property and be capable of being physically possessed. I have already considered this point in Wali Muhammad v. Dost Muhammad and another (1986 CLC 1220) wherein a conclusion was reached that such a fractional share of a property is incapable of physical possession.
' As such, in this case, first part of the third column of Article 10 does not apply and since this is not a case of sale by a registered deed, therefore, even the second part thereof does not get attracted and the case will fall under Article 120, provided its application thereto is not , excluded by the provisions of section 30 of the Punjab Preemption Act, 1913 which, in relation to cases regarding agricultural land, provides the limitation to run from the date of attestation of mutation or from the date of taking by the vendees of physical possession under the sale of any part of the property sold, whichever, date be earlier. Neither - of these conditions exists in this case because sale is not made by a mutation and, as has been held above, physical possession could not have been taken and much less so, under the sale. Hence, this case of oral sale, of such land as is incapable of physical possession, though confirmed by a Civil Court's decree, does not fall under section 30 of the Act and, for this reason, it cannot be regarded to have been excluded from the purview of Article 120 of the Limitation Act which, therefore, will continue to govern the suit of the plaintiffs who, thereunder, had six years to file the suit from the date that the right to sue accrued to them. Since no date other than the one of the passing of the consent decree (5-3-1978) has even been suggested as the one on which the sale in suit may have become known to the plaintiffs and it goes without saying that no one can be said to have had a right to sue without his having known it, therefore, there could not be any question of this suit becoming barred by time. Hence, learned Additional District Judge has rightly reversed the trial Court's finding on the point by holding the suit of the plaintiffs to be within time and even though he has viewed the matter from a different angle which, of course, I do not find either complete or quite correct, yet, his ultimate conclusion is not wrong and the decree passed by him is correct. Contention of the learned counsel fails and is accordingly repelled."
8. We have heard the learned counsel for the parties at some length, perused the material available on record as well as the case-law cited at the Bar. The pleas raised by the parties were also raised before the High Court, which were duly considered and the impugned order was rendered, by setting aside the decree of the lower appellate Court, restoring that of the trial Court to the extent of question of limitation.
9. We are inclined to agree with the submissions made by the learned counsel for the respondents on the strength of the case-law cited by him. Clearly, on the question of limitation, the conclusion reached by the trial Court, which has been upheld by the High Court, is based on cogent reasons, therefore, unassailable.
10. The learned counsel for the respondents was right in submitting that unless and until an objection was taken by the appellant in his written statement stating therein, with particularity, the basis of his objection on the ground of limitation, he could not be permitted to thrive on the alleged evidence to the contrary on the basis of Exh.P.6, a document between him and the vendor, .To which the respondent/pre-emptor was not a party. The learned Judge in Chambers was right in holding that there was no evidence on record to prove that the appellant took possession of the land in question under the sale prior to the date of sanctioning of the mutation.
11.. We are, therefore, inclined to agree with the learned Judge in Chambers that the period of limitation being one year for filing of pre-emption suit with effect from the date of attestation of the mutation, the suit was within time. The High Court was also right in holding that the period of limitation for filing of a suit against the, sale reflected through a decree of the Court is not governed by the provision of section 30 of the Punjab Pre-emption Act and Article 10 of the Limitation Act. In such cases the residuary of Article 120 shall apply and the period of limitation will be six years with effect from the date of the accrual of the cause of action.
12. Resultantly, the appeal fails and is hereby dismissed with no orders as to costs.