SARDAR MUHAMMAD RAZA KHAN, J.---Muhammad Inayat son of Fateh Muhammad and others have challenged the judgment dated7-2-2000 of Lahore High Court whereby Regular Second Appeal of respondent Fateh Muhammad was allowed, setting aside the judgments and decrees dated 28-7-1991 of the trial Court, Mandi Bahauddin and dated 6-10-1992 of the Additional District Judge, Gujrat.
2. Muhammad Din (predecessor-in-interest of the respondents) sold 26 Kanals 17 Marlas of land in village Joklian, Tehsil Phalia District Mandi Bahauddin to Muhammad Inayat and others for a, sum of Rs,90,000 vide sale-deed dated 29-1-1976. The sale was pre-empted by Fateh Muhammad on the ground of his 'being the real brother of the vendor in addition to being a co-sharer as well as contiguous owner.
3. The vendees contested the suit claiming themselves to be the tenants under the vendor. After decrees and remands in two rounds, the matter ultimately came to Supreme Court in Civil Appeal No,351 of 1987 and with consent the case was remanded to the trial Court for re-deciding the matter after framing an issue qua limitation. In post-remand proceedings the trial Court dismissed the suit on 28-7-1991. The first appeal by the pre-emptor also failed before Additional District Judge, Gujrat on 6-10-1992 whereupon a regular second appeal filed before the High Court succeeded and hence this appeal by the vendees.
4. The controversy between the parties pertains to the interpretation of subsection (3) of section 30 of Punjab Pre-emption Act 1913. The case of the vendees is that they had taken possession of the land in dispute under an agreement dated 5-3-1974 and the sale-deed dated 29-1-1976 was executed in continuation of the agreement to sell. The learned High Court was of the view that the claim of possession of the vendees is under the agreement to sell and not the sale itself.
5. It is a settled principle of law that agreement to sell by the very nature thereof is an intention to sell and not a sale by itself. Hence the possession taken under agreement to sell is not a transaction whereby some pre-emptor should become alarmed. Even a bare reading of the sale- deed would make it clear that it was not based either on any agreement to sell or executed in furtherance of the said agreement. Even the vendees did not plead this aspect in their written statement. It was rightly held by the High Court that though the plea of limitation is not necessarily to be taken in the written statement yet, when the limitation is a mixed question of law and fact, the plea is bound to be taken in the pleadings. In the instant case the question of limitation was more a question of fact than of law and hence ought to have been pleaded in the written statement to the effect that the vendees had taken physical possession under the agreement to sell and not the subsequent sale. Failure to take a plea regarding question of fact is bound to affect adversely the interest of the party concerned.
6. The defendants in their written statement (p-59 at para. "Jeem") had taken the plea that they were in possession as tenants. They never took the plea of having been in possession either under the sale or under agreement to sell. Same plea is repeated in para.4 of the written statement.
When no plea regarding possession having been taken under agreement to sell is taken in the written statement, the limitation would not run from any date of possession but from the date of attestation of sale. In this view of the matter the suit of the pre-emptor was well within time and the decree granted by the learned High Court is unexceptionable.
7. The law as well as the facts of the case have rightly been appreciated by the High Court in its well reasoned judgment. We see no ground to interfere. There being no force in the appeal, it is hereby dismissed with costs.