' SHAH NAWAZ KHAN, J.-In this Letters Patent Appeal the judgment and decree, dated 21-3-1969, of a learned Single Judge of this Court. Whereby the Regular Second Appeal No, 1959, of the present appellant against the judgment and decree dated 26-2-1959, of the learned Senior Sub-Judge, Kohat, was dismissed. Ham been challenged.
2. Facts ultimately leading to this Letters Patent Appeal may be summarised as under Mutation No, 43027 was entered by Gulla Jan vendor and Muhammad Payao vendee with the patwari on 29-12- 1955. In Column No, 15 of the mutation, the patwari rude a note that Gulla Jan vendor in the presence of Muhammad Payao vendee admits that he has sold his 55/252 share in the land, bearing Khasra Nos. 3367/550, 551 and 558 to Muhammad Payao and Sarfaraz Rhan vendees.
Further that he has received the purchase money, amounting to Rs, 2,500 from the said vendees and has already delivered the possession of entire share in that land to them (vendees). A report to that effect was also entered by tee patwari in the Daily Diary at serial No, 249, dated 29-12-1955.
Exh. P. W. 1/3 which is the certified copy of the said mutation further shows that when the said mutation was placed before the Revenue Officer for attestation on 2e-1-1956, Guile Jan vendor and both the afore mentioned vendees on the identification of Sher Dil Lambardar of the village appeared before the Revenue Officer. The vendor admitted before the the Revenue ()Rees' that he had received Rs, 2,500 from the vendees as price of the land and thus expressed his consent to the attestation of the said mutation in their favour. Noor Nawaz, appellant, according to the order of the Revenue Officer, dated 26-1.1956, on Mutation No, 34237 (in question) was also present and he lodged his protest before the Revenue Officer, saying that in fact Rs, 525 had been paid by the vendees to the vendor as price of the land under the sale but that larger sum of Rs, 2,500 has been fictitiously mentioned in the mutation with a view to thwart the exercise of the right of pre-emption against such sale. Noor Nawaz (appellants) also informed the Revenue Officer at that time that they had already issued notice to the vendees to stop the construction of the houses which they had started in the suit land, otherwise he would not be responsible for such construction. There is also a note in the order of the Revenue Officer that the vendees are already in exclusive possession of the land in question which they have purchased from the vendor. The Revenue Officer, however, did not attest the mutation there and then, but directed that 'Tatima Mauqa' be prepared because the vendor's share in the entire land was 55/252 which he bad sold to the said two vendees. On 14- 3-1976 when this mutation again came up before the Revenue Officer, it was pointed out that since Guile Jan Hissadar had sold his entire share of land, therefore, there was no need for the preparation of 'Mama Airtime and further that Gulla Jan vendor has admitted that the physical possession of the land sold has been given to the vendees on the spot. Mutation No, 43027 was accordingly a tested by Revenue Officer on that date. Noor Nawaz (present appellant) who was on that occasion also present before the Revenue Officer again raised an objection and insisted that the objection he had earlier made on 26-1-1956 should be taken notice of, but the Revenue Officer observed that it is a matter to be decided by a civil Court.
3. Noor Nawaz etc. Ultimately instituted a suit for the pre-emption of the suit land on 13-3-1957. The learned Sub-Judge, Kohat, on whose tile the case was, framed several issues for trial. At the conclusion of the trial he upheld the claim of the plaintiff-pre-emptors (present appellants), regarding his superior right of pre-emption, and treating the plaintiff's suit as within time, he passed a decree for possession of the suit land on payment of Rs, 12,00' It may at this stage be added that one Wreshmin and his son Sher Ali Khan had in the meantime also instituted a suit for the possession of the suit land by pre-emption. They, however, entered into a compromise with the vendees, in consequence whereof, a compromise decree was passed in their favour on 10-4-1957, whereby a portion of the land (in question) was decred in their favour. Wreshmin and Sher Ali Khan were subsequently added as defend-Ants in the case, instituted by Noor Nawaz etc. Plaintiffs (present appellants);,` ' The learned trial Judge held that plaintiffs (Noor Nawaz etc.) have got superior right of pre- emption not only against the vendees, but that their right as such is also preferential over the right of pre-emption of Wreshmin and Sher Ali Khan (the newly added defendants-rival pre-emptors) and, therefore, while decreeing the suit of the plaintiffs (Noor Nawaz etc. Appellants) with respect to the whole area in suit the decree earlier obtained by the said rival pre-emptors was also declared to be a nullity. The learned trial Judge further held that there was no reliable evidence on the file to prove the actual payment of Rs, 2,500 by the vendees to the vendor as sale price of the suit land, with the result that, after considering the five yeass average estimate of sales, prepared by the local patwari, he fixed Rs, 1,200 as the proper market value of the suit land, at the time of its sale.
4. The most hotly contested issue was that of limitation. The vendees insisted that they had taken the physical possession of the suit land, much earlier than the attestation of the sale mutation (in question) and therefore, the plaintiff's suit, being not within one year of the taking of such possession, is time-barred. The learned trial Judge, however, held that such possession of the vendees, although starting earlier than the attestation of the sale mutation was in anticipation of sale and being not under sale, which became complete on the attestation of sale mutation by the Revenue Officer on 14-3-1956, the plaintiff's suit having been instituted on 13-3-1957 (1. e.) within one year of 14-3-1956 is within time. Another consideration which enabled the learned trial Judge to hold so, was that the possession of the evendees on any particular portion of a joint 'Khata' did not make them exclusive owners of that portion as in the partition proceedings, the vendees being given another portion could not be ruled out. In the result issue No, 1 was decided against the contesting vendees-defendants and the suit of the plaintiffs was held to be within time.
5. On the appeal of the vendees, the learned Senior Sub Judge, Kohat, expressed his disagreement with the finding of the learned trial-Judge on issue No,
1. He observed that Muhammad Payao (defendant-appellant No, 1), has categorically stated that the sale mutation in question was attested three months after the construction of houses by them on the suit land which fact was within the knowledge of the plaintiffs-pre-emptors and Noor Nawaz plaintiff had not only raised objection about the purchase money but had also expressed his intention to pre-empt such sale with a demand that no construction be made on the suit land. It was consequently held by the first appellate Court that as the vendees had taken possession of the suit land under the sale prior to 26.1-1956 by which date the sale had become complete, therefore, the plaintiffs should have filed suit for pre-emption within one year of 26-1-1956 at the latest. Consequently the appeal of the vendees was accepted and judgment and decree of the trial Court were set aside and the suit of the present appellants was dismissed mainly on the ground of limitation. The aggrieved appellants then moved this Court through a Regular Second appeal which was also decided against them.
6. A learned Single Judge of this Court in his impugned judgment, dated 21-3-1969, has held that, "the limitation of one year will commence from the date e hen the sale was complete, when possession was transferred to the vendees under the sale which date is ascertainable as 29-12- 1955 and was confirmed on 26-12-1956. The period of limitation of one year either from 29-12-1955 or the latest 26-1-1956 bad expired when the pre-emptor instituted this suit on 13-3-1957." As indicated above, delivery of physical possession of the land (in question) by the vendor to the vendees was rather admitted by the plaintiff, Noor Nawaz, before the Revenue Officer, when the mutation in question came up before the latter on 26-1-1956 for attestation, in that, he (i. e.) Noor Nawaz (appellant) had not only protested against the entry in the mutation of a larger sum as having been paid to the vendor by way of sale price of the suit land than what, according to him, had been actually paid, but he also urged that the vendees should stop making further constructions in the suit land and added that he had served notice on them (vendees) that he (i. e.) the plaintiff-appellant will not be responsible for the cost of such construction. It means that on 264-1956 when the plaintiff Noor Zaman appeared before the Revenue Officer, as stated above, he already knew that the vendor had been paid the purchase money and the vendees had received the physical possession of the suit land.
7. Attestation of mutation of sale of agricultural land formally gives effect to such transfer in the revenue papers whether the transaction is oral or a written one. It implies to the final order passed by the Revenue Officer entering the name of the vendee in the column of ownership instead of the vendor, and not the date when the sale had been reported to the pat wad and he entered the same in the register of mutations or in the Roznamcha. At best, the mutation may be acceptable as evidence of the entry of title in the revenue papers. In between the seller and the purchaser, the transfer by sale of an agricultural land becomes complete when there is a promise by the vendor to sell and acceptance by the vendee to purchase, followed by the payment of purchase money to the seller and delivery of possession of the land under sale to the purchaser.
8. The law however, envisages that a third party interested to pre-empt must have a notice of such sate before he is able to exercise his right of pre-emption, Registration of a deed of sale or attestation of mutation and last but not the least, the change of possession on the spot, serve as notices to such a person of the existence of sale. In the instant case the land sold did admit of physical possession by the vendees at the time of sale. Oral sale was followed by the attestation of mutation. No deed of sale was executed or registered. Under section 31 of the N.-W. F. P. Pre- emption Act, the two periods of limitations, as prescribed, would be applicable in the instant case:
(I) one year from the date of attestation of the mutation and (ii) as the property was capable of physical possession, one year from the date of the taking under the sale, physical possession, which ever date was the earlier, Taking of physical possession of the suit land by the vendees must have put the vigilant intending pre-emptor on alert to make enquiry into the new comer's (vendees) right of entering into the possession in place of the original owner. Facts disclosed above, would rather show that the plaintiff pre-emptors had become aware of the sale of the suit land by the vendor to the vendees and this is why Noor Zaman felt the necessity of appearing before the Revenue Officer on 26-1-1956 when the mutation (in question) came up before the latter for attestation and lodged his protests as afore-stated. In these circumstances the plaintiff-pre- emptors should have instituted their suit for pre-emption within one year of the taking of physical possession of the suit land by the vendees and not from the date of attestation of mutation which occurred later. The said in the instant case had become complete before the attestation of mutation. Postponment of formal attestation of mutation could not there fore extend the period of limitation in favour of the plaintiffs.
9. Insertion of the words ", or from the date of taking over by vendee of physical possession of any part of the property which cues be earlier" in Section 31 (1) of the Act are meaningful, and the intention of the framers of law could not be undermined by differently construing the plain language of the section. The underlying idea is that for the purpose of pre-emption suit, the period of limitation would run from the date when the intending pre-emptor gets notice of the sale or he is to be presumed to have got such notice. When physical possession is given under the sale, the whole world is given notice of alienation, whereas by the registration of the deed of sale or attestation mutation, constructive notice is given. The taking of possession under the sale is thus an overt act, constituting a publication of the transfer. Noor Nawaz (plaintiff-appellant) who appeared in the trial Court as his own witness has admitted that when the mutation (in question) came up for attestation (the date should be 26-1-1956) he did appear before the Revenue Officer and made an objection about the higher sum mentioned in the mutation to have been paid as sale price of the suit land. He also admitted that formerly his brother, Abbas Khan (plaintiff No, 2) was in possession of this land who gave back its possession to Gulla Jan vendor. In that context, it would be relevant to refer to a deed of agreement, dated 22-12-1955, which is placed on the file and is marked as Exh. D/1. In this document Abbas Khan (one of the plaintiff-appellants) has admitted that he had delivered the possession of the land (in question) to Gulla Jan owner on 22- 12-1955 i.e, 7 days before the vendor and the vendees (in the instant case) got the mutation of sale of the suit land entered with the patwari. All these factors taken together would lead to an irresistible conclusion that the plaintiffs-pre-emptors had the knowledge that the vendees had taken the physical possession of the suit land prior to 26-1-1956.
10. In the result of the above discussion, we find ourselves in full agreement with the finding of learned Single Judge of this Court and consequently hold that the plaintiffs did not institute their suit for pre-emption within one year of the taking of the physical possession of the land under sale by the vendees, as such their suit is time barred. This Letters Patent Appeal is, therefore, dismissed with costs.