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Letters Patent Appeal No. 252 of 1971, decided on 6th April 1972.

Suit for pre‑emption decreed on compromise between parties that pre‑emptor do make payment to the vendee ‑Payment in terms of compromise made by plaintiff‑decree holder but no steps taken after this by him for execution of decree ‑Subsequently application for mutation by plaintiff-decree holder resisted on ground that since he had not applied for execu tion of decree within prescribes period of limitation, the decree had become ineffective and not binding on parties‑Contention, held, untenable‑When decree (in a pre‑emption suit) is passed and payment made it is only then that the decree becomes one in favour of pre‑emptor and he becomes vested with property‑If pre‑emptor‑decree‑holder does not apply for execution of decree within period prescribed by Art. 182, Limitation Act, 1908, his right and title to property which he acquired by virtue of decree for pre‑emption, is not extinguished‑Neither S. 28 nor Art. 182 of Limitation Act, 1908 attracted ‑Decree‑holder if in posses sion cannot be dispossessed (on allegation of forcible disposses sion) save under S. 9, Specific Relief Act, 1877‑West Pakistan Land Revenue Act (XVII of 1967), S. 45‑Limitation Act (IX of 1908), S. 28 & Art. 182‑Specific Relief Act (1 of 1877), S. 9.

F filed a suit for possession by pre‑emption against H. Pending proceedings the parties compromised and the vendee H on receipt of a sum of Rs. 7,000 from F in Court made a statement that a decree be passed in favour of F. After this F for a long time did not take any step for the execution of the decree but subsequently he made an applica tion to the Revenue Authorities for sanctioning mutation on the basis of the decree. The mutation was sanctioned. H com plained that since F had not applied within prescribed period of limitation (under Art. 182 of Limitation Act) for execution of the decree, the decree had become ineffective and not binding err the parties.

Held : The trial Court passed the decree for possession on the basis of pre‑emption in favour of the respondent‑pre‑emptor as a result of the compromise which was arrived at between the parties. The respondent paid the entire amount in the Court. A decree conclusively determines the rights' of the parties with regard to the matters in controversy in the suit. The suit for pre‑emption has special incidents. The property vests in the vendee by virtue of the sale made in his favour by the vendor. A person when he files a suit to pre‑empt the sale, he does not do so in the exercise of any right In the property but on the basis of his statutory right to pre‑empt the sale. He, therefore, does not have any existing right in the property when he institutes the suit. It is only when the decree is passed and the payment is made that the decree becomes one in his favour and he becomes vested with the property. The decree in a pre‑emp tion case is passed in accordance with the provisions contained in Order XX, rule 14, C. P. C. and its relevant portion reads : "the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment". Thus, it is on the payment of the decretal amount that the title accrues to the pre‑emptor and not on the delivery of the possession. It is, indeed, mentioned that the defendant shall deliver the possession of the property to the plaintiff but the fact that the possession is not delivered does not in any way affect the vesting of the property in the pre‑emptor. It only means that on payment of purchase‑money the pre‑emptor gets title in the property and he thereby becomes entitled to its possession from the vendee.

The Limitation Act contains provisions both about limita tion and prescription. The difference between the limitation and prescription is that limitation bars the remedy but does not extinguish the right but under the law of prescription the right itself may be extinguished. It is well settled that the rule of limitation is a rule of procedure, a branch of the adjective law, and does not either create or extinguish rights, except in the case of acquisition of title to immovable property by prescription under section 28, Limitation Act. After the expiry of the period prescribed for filing a suit to recover the possession of a property, the title of a person is extinguished under section 28 and the same is created in favour of the person in possession. However, under the law of limitation it is only the remedy by way of a suit that is barred, but the right itself con tinues to exist, and if there is some other remedy by which that right can be enforced, the Limitation Act cannot come in the way.

Article 182 does not prescribe the period of limitation for the institution of a suit by the decree‑holder. It merely prescribes the period of limitation for an application for deli very of possession to him. Section 28 does not apply to applications for execution under Article 182. Therefore, if did not apply for the execution within the period of limitation, his right and title in the property which he acquired by virtue of the decree for pre‑emption was not extinguished. He continued to be the owner of the land notwithstanding that he did not file an application for execution. The failure on the part of the decree‑holder to take delivery of possession within the time limited by Article 182 of Schedule I of the Limitation Act only bars his remedy to seek assistance of the Court in order to put him into possession. In spite of his failure in that behalf he may get into possession by an amicable arrangement with the judgment‑debtor or in any other way. His title remains alive unless it is lost either by way of sale, gift, etc. or by operation of some statute, for example section 28, Limitation Act.

F had admittedly obtained the possession of the land in suit. He was the owner of the land, because his title had not been extinguished either by operation of law or by his own act. He had the right to remain in possession till such time as he was dispossessed in due course of law. Section 9 of the Specific Relief Act provides summary and speedy remedy through the medium of the civil Court for the restoration of possession to a party dispossessed by another, within six months of its dis possession leaving them to fight out the question of their respec tive titles in a competent Court if they are so advised.

Deoklnandan v. Sri Ram (1890) 12 All. 234 ; Lachman Singh v. Natha Sirgh A I R 1930 Lah. 128 ; Muhammad Saddiq v. Ghasi Ram A I R 1946 Lah. 322 and Mar; v. Santaya Ramkrishna Pai Kolle A I R 1.922 Bom. 21.6 ref.

‑Limitation and prescription‑Difference Limitation : a rule of procedure ; does not create or extinguish rights save in case of acquisition of title to immovable property by prescription (under S. 28, Limitation Act)‑Limitation Act (IX of 1908), S. 28.

Revenue Authorities under obligation to give effect to decree of civil Court and change entries in revenue records in accordance with rights determined thereby‑On failure to do so High Court, under Art. 98, Constitution of Pakistan (1962), competent to give direction to Revenue Authorities to give effect to decree by sanctioning mutation‑Constitution of Pakistan (1962), Art. 98‑West Pakistan Land Revenue Act (XVIl of 1967), S. 45.

Muhammad Iqbal v. S. A. M. Khan P L D 1970 Lah. 614 distinguished.

Raja Said Akbar Khan for Appellant.

The dispute 9n this case relates to 5 kanals and 1 marla of land situate an the revenue estate of village Nawan Rangpura, Tehsil and District Gujrat, which was solo by Siraj Din and his two brothers, namely, Muhammad Din and Mehr Din on the 26th of October 1960 in favour of Ali Ahmad and Khalil Ahmad, appellants. Muhammad Fazil son of Siraj Din, respondent No. 1, filed Suit No. 294 of 1961 for posses sion by pre eruption of the land in dispute. The parties, however, compromised the matter and the vendees on receipt in Court of an amount of Rs. 7,000.00 from the respondent‑pre‑emptor, made a statement on the 8th of December 1;61 that a decree be passed in favour of Muhammad Fazal. Accordingly, a consent decree was passed by the learned Administrative Civil Judge on the 8th of December 1961. The respondent took no steps for execution of the decree till the 5th of February 1967 when he submitted an application to the Revenue Assistant for sanctioning the necessary mutation on the basis of the said decree of the civil Court. The Assistant Collector, Grade II, sanctioned mutation No. 4209 on the 7th of July 1967 giving effect to the decree of the civil Court. The appellants sought review of the mutation on the ground that since the respondent had not applied within the prescribed period of limitation for execution of the degree of the civil Court, the same had become inoperative and lost its binding effect. The Assistant Collector, Grade 11, reported the matter to the Collector for his permission to review the mutation already sanctioned in favour of the respondent. The Collector grantee the requisite permission on the 27th of July 1967 and the Assistant Collector, Grade Il, by his order dated the 7th of August 196' cancelled mutation No. 4209 dated the 7th of July 1967. It was without hearing the respondent and without issuing any notice to him. The Collector accepted the appeal of the respondent on the 23rd of December 1967 and remanded the matter to the Assistant Collector, Grade II, for fresh decision after hearing the parties. The Assistant Collector, Grade 11, again sanctioned the mutation on the 2nd of March 1968 in favour of the respondent. The appellants challenged that order in appeal before the Collector who accepted it by his order dated the 7th of August 1968 on the ground that since the respondent had not applied for execution of the decree within the prescribed period of limitation, the decree had become ineffective and not binding on the parties. The second appeal filed by the respondent was dismissed by the Additional Commissioner on the 3rd of December 1968. The learned Members, Board of Revenue, dismissed the revision petition of the respondent on the 31st of July 1969. The respondent then filed Writ Petition No. 792 of 1970 which was accepted by our learned brother, K. E. Chauhan, J., by his order dated the 1st of Novem ber 1971 and he, by quashing the orders of the Collector, the Additional Commissioner and the learned Member, Board of Revenue, restored the order of the Assistant Collector, Grade Il, dated 2nd of March 1968 by which the mutation had been sanc tioned. This is the Letters Patent Appeal;

2. It was contended on behalf of the appellant‑vendees that they had acquired right in the land by purchase and remained vested with the same notwithstanding the decree in favour of the respondent, because it was not accompanied with possession.

The contention is untenable. The trial Court passed the decree for possession on the basis of pre‑emotion in favour of the respondent‑ pre‑emptor as a result of the compromise which was arrived at between the parties. The respondent paid the entire amount in the Court. A decree conclusively determines the rights of the parties with regard to the matters in controversy in the suit. The suit for pre‑emotion has special incidents. The property vests in the vendee by virtue of "e sale made in his favour by the vendor. A person when he files a suit to pre‑empt the sale, he does not do so in the exercise of any right in the property but on the basis of his statutory right to pre‑empt the sale. He, therefore, does not have any existing right in the property when he institutes the suit. It is only when the decree is passed and the payment is made that the decree becomes one in his favour and he becomes vested with the property.

The decree in a pre‑emotion case is passed in accordance with the provisions contained in Order XX, rule 14, C. P, C. and its relevant portion reads as : "(1) where the Court decrees a claim to pre‑emotion in respect of a particular sale of property and the purchase‑money has not been paid into Court, the decree shall (a) specify a day on or before which the purchase‑money shall be so paid, and (b) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a) the defen dant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment".

Thus it is on the payment of the decretal amount that the title accrues to the pre‑emptor and not on the delivery of the possession. It is, indeed, mentioned that the defendant shall deliver the possession of the property to the plaintiff but the fact that the possession is not delivered does not in any way affect the vesting of the property in the pre‑emptor. It only means that on payment of purchase‑money the pre‑emptor gets title in the pro perty and he thereby becomes entitled to its possession from the vendee. In Deokinandan v. Sri Ram ((1890) 12 All. 234) the majority view was that "the decree merely avoided the sale and that it divested the original owners of all interest in the property as from the date when the decree became final by the payment in accordance with its terms, by the pre‑emptor of the pre‑emotive price decreed, and vested in the pre‑emptor the rights of ownership from that date". Mahmood, J., went much further than his colleagues and held: "the vendees were entitled to the profits not only to the date when the pre‑emptor had paid the pre‑emotive price, but to the date when had actually acquired possession of the property in accordance with the terms of the decree". The decision by Mahmood, J., was under the Code of 1882 where the pre-emption decree was drawn in terms of section 21.4 which reads : "When the suit is to enforce a right of pre‑emotion in respect of a parti cular sale of property, and the Court finds for the plaintiff, if the amount of purchase‑money has not been paid into Court, the decree shall specify a day on or before which it shall be so paid and shall declare that on payment of such purchase‑money, together with the costs (if any) decreed against him, the plaintiff shall obtain possession of the property, but that if such money and costs are not so paid the suit shall stand dismissed with costs".

In the Code of 1908 a substantial charge was made whereas under the Code of 1882 the words used were "and shall declare that on payment of such purchase‑money, together with the costs (if any) decreed against him, the plaintiff shall obtain possession of the property" the words used in the Code of 1908 were "direct that on payment into Court of such purchase‑money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment." (Under lining is by us). These lines which are underlined* were added by the Legislature to remove all ambiguity in the matter and to make it clear and unmistakable that accrual of title to the pre‑emptor was dependent not on the delivery of possession to him but only on the payment of purchase price, These words were newly inserted to make this clear and to supersede the opinion expressed in some of the cases. In Lachhman Singh v. Natha Singh (A I R 1930 Lah. 128) it was held : "In this connection reference may also be made to Order XX, rule 14, Civil Procedure Code, which lays down that in a pre‑emption decree, the title of the plaintiff to the possession of the property shall be deemed to have accrued from the date on which payment of the decretal amount is made". The case‑law was reviewed again by the Full Bench in Muhammad Siddiq v. Ghasi Ram (A I R 1946 Lah. 322) and it was held : "A right of pre‑emption can he said to have been effectively exercised or enforced only when the pre‑emptor has become actually substituted for the vendee in the original bargain of sale. Till such substitution takes place the vendee remains the owner of the property purchased by him and the pro spective pre‑emptor cannot claim to have any right to or in the subject‑matter of the sale. Where the pre‑emptive right is sought to be enforced by means of a suit, such substitution takes place, and the pre‑emptive right is deemed to have been exercised or enforced, only when the price has been paid by the pre‑emptor into Court in compliance with the decree passed in his favour. Till such payment has been made, the act of the pre‑emptor in Instituting the suit for pre‑emption amounts to no more than a mere assertion of the right, which becomes a successful assertion of the right when the suit culminates in a decree. There is, how ever, a vast difference between a mere assertion, albeit a success ful assertion, of the pre‑emptive right and the exercise of enforce ment of that right." While discussing the view of Mahmood, J., in 12 All. 234 the Full Bench observed that His Lordship "went to the extent of holding that the enforcement of pre emption is not deemed to have taken place unless, by virtue of his pre‑emption, the pre‑emptor has obtained possession of the pre‑emptional tenement, either under a voluntary surrender thereof by the buyer, or under a decree. 1n our province, however, being put in possession of the pre‑emptional tenement has never been Insisted upon as an essential pre‑requisite of the enforcement of the pre‑emptive right, and it has been considered enough for the divestiture of the vendee's title and the vesting of the title in the pre‑emptor, which by common consent the enforcement of a pre‑emptive right necessarily pre‑supposes, that the pre‑emptor has duly deposited in Court the price as required by the decree".

In this view of the matter the respondent by virtue of the decree passed in his favour and on payment of the purchase price on the 26th of October 1960 became the owner of the pro perty and became vested with right, interest and title in it from that date

3. The learned counsel next contended that the respondent had lost all right and interest in the property on his failure to execute decree within three years provided under Article 182 of the Limitation Act.

In order to appreciate this contention we must refer to the scope of the Limitation Act. It contains provisions both about limitation and prescription. The difference between the limitation and prescription is that limitation bars the remedy but does not extinguish the right but under the law of prescription the right itself may be extinguished. It is well settled that the rule of limitation is a rule of procedure, a branch of the adjective law, and does not either create or extinguish rights, except in the case of acquisition of title to immovable property by prescription under section 28, Limitation Act. After the expiry of the period prescribed for filing a suit to recover the possession of a property, the title of a person is extinguished under section 28 and the same is created in favour of the person in possession. However, under the law of limitation it is only the remedy by way of a suit. that is barred, but the right itself continues to exist ; and if there is some other remedy by which that right can be enforced, the Limitation Act cannot come in the way.

4. The appellants, therefore, can succeed only if they are able to make out that section 28 of the Limitation Act is attract ed. It reads as : "At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." This section applies to suits, and suit as provided under section 2, clause (10) of the Limitation Act "does not include an appeal or an application". Article 182 does not prescribe the period of limitation for the institution of a suit by the decree‑holder. It merely prescribed the period of limitation for an application for delivery of possession to him. Section 28 does not apply to applications for execution under Article 182. Therefore, if the respondent did not apply for the execution within the period of limitation, his right and title in the property which he acquired by virtue of the decree for pre‑emption is not extinguished. He continues to be the owner of the land notwithstanding that he did not file an application for execution. The failure on the part of the decree‑holder to take delivery of possession within the time limited by Article 182 of Schedule I of the Limitation Act only bars his remedy to seek assistance of the Court to order to, put him into possession. In spite of his failure in that behalf he may get into possession by an amicable arrangement with the judgment‑debtor or in any other way. His title remains alive unless it is lost either by way of sale, gift, etc. or by operation of some statute, for example section 28, Limitation Act.

5. It was next contended that the respondent by instituting collusive suit against Ghulam Hussain and Muhammad Ramzan who were the tenant of the appellants had obtained the order of ejectment against them and also succeeded in taking possession from them; that the appellants had filed a suit for recovery of possession of the said land and that the learned Judge was not justified in writ proceedings to hold that the tenants could attorn to the respondent and this finding is bound to adversely affect the appellants' case. We see no justification for such apprehension because the learned Judge has not given any definitive finding on that question and 1t is clear from his following observations

"The plaintiff had succeeded in obtaining the possession of the suit land. A controversy is going on that the aforesaid possession was obtained collusively from the tenants, but neither I am nor were the Revenue authorities in mutation pro ceedings concerned with that aspect of the matter."

It is manifest that the learned Judge has left the real contro versy between the parties in the suit to be decided by the civil Court.

6. The learned counsel then contended that the learned Single Judge has held that Ghulam Hussain and Muhammad Ramzan, even if they were the tenants of the appellants, could attorn themselves to the respondent and that this finding will be used against them in the suit. Doubtless the learned Judge has made certain observations in this behalf, but again they cannot be deemed to be the conclusive determination of the matter as is manifest from his observations : "Be that as it may, the facts hereinbefore mentioned show that somehow or other, the peti tioner did obtain possession of the land".

7. The respondent had admittedly obtained the possession of the land in suit. He is the owner of the land, because his title has not been extinguished either by operation of law or by his own act. He has the right to remain in possession till such time as he is dispossessed in duo course of law. Section 9 of the Specific n Relief Act provides summary and speedy remedy through the medium of the civil Court for the restoration of possession to a party dispossessed by another, within six months of its disposses sion leaving them to fight out the question of their respective titles in a competent Court if they are so advised. (See I L R 13 All. 537 and A I R 1922 Bom. 216). The remedy of the appellants was/is thus under section 9 of the Specific Relief Act and if they have already filed this suit, we have no doubt that it will be decided on merits and after determination of the question whether under law the old tenants could attorn themselves to the new owner and could render themselves liable for .the payment of rent and also for eviction.

8. It was next contended that the High Court cannot give direction to the Revenue Authorities to enter a mutation. He relied on Muhammad Iqbal v. S. A. M. Khan (P L D 1970 Lah. 614). The case was one where the right of a person had not been adjudicated upon by a Court and the writ was refused on the ground that sanctioning of the mutation neither creates a right nor does it take away any right of a person and that it only gives effect to a completed transaction of sale, gift, exchange, mortgage etc. The position here is different. There is a decree of the civil Court by which respon dent acquired a title in the land in dispute. The Revenue Authori ties are obliged under law to give effect to the decree. Section 45 of the West Pakistan Land Revenue (Act XVII of 1967) provides: "Entries in a record‑of‑rights shall not be varied in subsequent records otherwise than by (b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties". The Revenue Authorities are thus required by law to give effect to the decree and change entries in accordance with the rights determined thereby and if they fail to give effect to a decree by sanctioning mutation, a direction can be given to them under Article 98 to act in accordance with the provisions of section 45 of the Act, because the decree is a con clusive proof of the title 9n a property.

9. The contention of the learned counsel in the context of the present case is otherwise untenable. The learned Judge did not give any direction to enter the mutation. He only declared as without lawful authority and of no legal effect the appellate and revisional orders of the Revenue Authorities (who had passed those orders on a mistaken view of law that the decree ; if not executed within the period of limitation loses its validity) and restored the order of the Assistant Collector. The order of the Assistant Collector being in accordance with law, the learned Judge was justified to give effect to the same.

10. We find no merit in the appeal which is dismissed in limine.

K. B. A.

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