' Respondent's suit for pre-emption against the appellant was decreed by the learned Civil Judge on 10-6-1991. An appeal, filed by the appellant was dismissed by the learned District Judge, Lahore on 7-12-1995, hence this second appeal.
2. Brief facts of the case are that the respondents filed a suit for pre-emption on 16-6-1979, averring in the plaint that the suit land has been purchased by the appellant through a sale registered dated 17-7-1978. He, on account of being owner of the estate, has a superior right of pre-emption.
This suit was contested by the appellant, inter alia, challenging the locus standi of the respondents; superior right of pre-emption and the suit, being barred by time. After framing of issues and recording of the evidence, the learned trial Court decreed the suit in favour of respondents. The appellant unsuccessfully filed an appeal.
3. The learned counsel for the appellant has only dilated upon issue of limitation and has contended that the 'possession of the suit land, was delivered to the appellant under the sale in 1977, a year before the registration of the sale-deed, thus, the respondents' suit, filed in the year 1979 was hopelessly barred by time. It was further submitted that in any case, the sale-deed was executed on 13-7-1978, though, it was registered on 17-7-1978. Notwithstanding the date of registration, tit sale would take effect from the execution of the deed. Resultantly, the suit filed beyond one year of 13-7-1978, was out of limitation. Reliance has been placed upon the case reported as Nazir Ahmad v. Asghar 1992 SCM R 2300 and on an unreported judgment of the Honorable Supreme Court in Civil Appeal No,976 of 1994, dated 29-11-1999.
4. On the contrary, the learned counsel for the respondents states that according to - Article 10 of the Limitation Act, the period of one year is to commence from the date of the registration, irrespective of the date of the execution of the sale-deed. He further argued that the appellant has miserably failed to establish on the record if, the physical possession of the suit property was delivered to him in the year 1977.
5. Arguments have been heard. Examining the question if, the physical possession of the suit land was delivered to the appellant under the sale in the year 1977, reference is made to the written statement filed by the appellant. In the written statement, though, a preliminary objection has been taken that the suit is barred by time, however, it is not specifically stated that the sale was made and the physical possession was delivered to the appellant thereunder in the year 1977. Anyhow, even leaving this omission aside, by examining the evidence produced by the appellant, the above factum is not proved in positive terms. D.W.1, vaguely mentions that the bargain was struck in 1977 and possession was also given. He. However, admits that the execution and registration of the sale-deed was after one year. D.W.2, has also stated about bargain having been concluded in the year 1977. He has admitted in his examination-in-chief that he does not know the exact amount of earnest money, paid at the relevant time but, conceded that the balance amount was paid by the appellant vendee to the vendor, on the date of registration of the sale-deed. More or less are the statements of the other witnesses. But none of them have given the exact date, time and place the, bargain was struck between the appellant and the vendor in 1977 and the possession was 'delivered to the vendee. Though it may not be strictly relevant but may be pertinently stated that there is no written documents, placed on the record, by the appellant to establish that, prior to the execution of the sale-deed i,e, Exh. P.2, if any agreement in writing was executed between him and the vendor in 1977 by virtue whereof the earnest/advance money was paid to the vendor and the physical possession was taken over by him. While appearing as D.W.6, the appellant in his cross- examination, also admitted that the balance sale consideration amounting to Rs,60,000 was paid before the Sub-Registrar, at the time of registration of the sale-deed. Both the Courts below, after appreciating the quality of evidence have concurrently found that neither the sale nor the possession was delivered to the appellant in the year 1977. The learned counsel for the appellant has not been able to show any error of misreading or non-reading of the evidence, calling for interference in the provisional jurisdiction, therefore, I am not inclined to upset such factual findings of the two forums below.
6. Coming to the question as to the point of time when limitation would start running, from the date of the execution of the sale-deed or from the date of its registration. It is conceded by the learned counsel for the appellant that the present case is covered by Article 10 of the Limitation Act. His submission is that as the sale-deed was executed on 13-7-1978, therefore, even though it has been registered on 17-7-1978, period is to be reckoned from the date of execution and not from the registration. As mentioned above, reliance is placed on the two judgments of the Honorable Supreme Court. In the case reported as 1992 SCM R 2300 the facts are that the vendee resisted the pre-emption on the premises that he too was the owner of the estate on the basis of a sale-deed, executed in his favour on 8-9-1974 i,e, a day before the filing of the suit but presented to the Sub- Registrar on 9-9-1974 and registered on 10-9-1974, while examining the question as to when the sale would take effect, Honorable Supreme Court held as under:-- "There is a controversy that' the sale-deed in respect of this land was executed in appellants' favour on 8-9-1974 i,e, a day before institution of the suit. It was presented for registration on 9-9- 1974 but, registered on 10-9-1974. In the opinion of the High Court, as the document was registered after the institution of the suit, the transaction was of no avail to the appellants. The view taken by the High Court is untenable Section 47 of the Registration Act seemingly escaped notice of the learned Judges of the High Court, which provides that a document registered on a date subsequent to the date of its execution operates from the date of the execution. Obviously, therefore, the title to the land had passed to the appellants on 8-9-1974, and they could justifiably bank on it to oppose the suit filed by the respondent."
7. From the above it is imminently clear that the issue of limitation was not involved in the matter.
Rather, the time when the sale would take effect and clothe a vendee with the title to the property sold for the purposes of resisting a pre-emption suit having become owner of the estate before the institution of the suit.
8. According to the facts involved in the unreported judgment of Honorable Supreme Court mentioned above, sale-deed was executed in favour of the vendee on 3.0-8-1975, it was presented before the Sub-Registrar same day, but was registered on 3-10-1975, suit for pre-emption was filed on 2-10-1976. This suit was resisted by the vendee on the plea of limitation and this Court, while examining this question, came to the conclusion that the sale-deed having been presented for registration on 30-8-1975, the time had begun to run against the vendee from that date. In appeal before the Supreme Court, this question was examined and it was held as follow:-- "The period of limitation under Article 10 of the Limitation Act was to start from the date of registration of the document, therefore, the findings of the learned Judge in chamber of the High Court in the impugned judgment that the document shall be deemed to have been registered on 30-8-1975 when the same was initially presented for registration is not correct which findings are hereby reversed. The document in this case shall be deemed to have been registered on 3-10-1975, when the Sub-Registrar appended certificate of registration as required under section 60(2) of the Registration Act, therefore, from the said date, the suit was filed on 2-10-1976 was within time."
9. Article 10 of the Limitation Act also does not call for any other interpretation, except that when the physical possession is not proved to have been delivered earlier, the period of limitation is to commence from the day of the registration of the sale-deed. As in this case the sale-deed was registered on 17-7-1978, resultantly, the suit filed on 16-8-1978, was well within time. Learned counsel for the appellant has made another submission that as the suit land was susceptible to physical possession and it is mentioned in the sale-deed, which was admittedly executed on 13-7-1978, that the physical possession has been delivered, thus, the physical possession would be deemed to have been delivered on that date. This argument cannot be accepted for two reasons, firstly according to the appellant's own case, as set out in the evidence, the possession was allegedly delivered to him in the year 1977, which fact, he has not been able to prove on the record, as concurrently found against him by the two Courts below. Secondly, now the appellant is precluded to set up a different plea of having obtained the physical possession on 13-7-1978, when according to his own case, the possession was already with him prior thereto: The appellant has not led any independent evidence to prove about the delivery of physical possession on the date of execution of the sale-deed. Merely because the physical possession is stated to have been delivered when the sale-deed was executed, cannot be considered as a conclusive proof of the delivery of physical possession so as to attract the first part of the Article 10 of the Limitation. In this regard, reliance can be placed upon Thakur Singh v. Karam Singh AIR 1925 Lah. 165 in which it has been held the law insist of physical possession because physical possession is visible to all concern. It is a notice to all would be pre-emptors when the change had occurred in the enjoyment of possession of land in question and put them to inquiry whether such has been sale. While relying upon this judgment, the Honorable Supreme Court in Qazi Muhammad Daud and another v.
Muhammad Ayub and others 1985 SCM R 1966 concluded admittedly in the instant case, there is no independent evidence of the physical possession having been delivered of the property under the sale, the view taken by the Court below that the terminus a quo for limitation of the date of registration is, therefore, not open to question. It was further held that recital in the sale-deed about the delivery of possession would be very weak evidence even between the parties to the deed and on the basis thereof, the vendor cannot be deemed to have delivered the possession to the vendee by the mere act of executing of the deed. In the instant case also, as mentioned earlier, such evidence is lacking.
In view of what has been stated above, I am of the firm view that as the case is admittedly covered by the provisions of Article 10 of the Limitation Act, the appellant has failed to prove the possession having been delivered to him under the sale either in the year 1977 or on the date of execution of the sale-deed dated 13-7-1978, therefore, the suit filed by respondent was squarely covered by the latter part of Article 10 of the Limitation Act and was within time from the date of registration of the sale-deed i,e, 17-7-1978, therefore, this appeal has no force' and is hereby dismissed. No order as to costs.