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Civil Petition for Special Leave to Appeal No. 159‑P of 1975, decided on 13th October 1975.

(On appeal from the judgment and order, of the Peshawar Nigh Court, Peshawar, dated 7‑7‑1975 in C. R. No. 52 of 1974).

F. P. Pre‑emption Act (XIV of 1950)‑

‑‑ S. 31‑Pre‑emption‑Requirement of law for purposes of 'S.-31 Physical possession "under the sale"‑Vendor not himself in actual physical possession‑Not in position to deliver physical possession to vendee‑Any agreement with tenant of land regarding future attornment‑Cannot satisfy requirement of law.

Abdul Samad Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing : 13th October 1975.

MUHAMMAD GUL, J.

‑This petition is from the judgment of the Peshawar High Court dated 7‑7‑1975 dismissing a revision petition by the petitioner herein arising in a suit for the pre‑emption of land.

Vide mutation attested on 13‑3‑1372, land measuring 8 kanals 13 marlas bearing khasra Nos. 11l1 and 1146 situate in village Amandi, Tehsil and District Bannu was purchased by the petitioner herein from one Farooq allegedly for Rs. 16,240. On 5‑3‑1973, that is to say within one year of the date of attestation of the mutation, the respondent filed a suit for pre‑emption but only in respect of khasra No. 1111 measuring 3 kanals 2 marlas on payment of pro rata price of Rs. 1200 only on the ground that the respondent's superior right of pre‑emption on the basis of contiguity and participation in the immunities was confined to khasra No. 1111 only and did not extend to the other khasra No.

The petitioner contested the suit, inter alia on the ground that it was barred by limitation because he entered into physical possession of the land under sale on 15‑1‑1972, that is to say before the attention of mutation in his favour and as such the suit was barred under section 31 of the N.‑W.F. P. (Pre‑emption) Act.

It appears that the mutation was actually entered on 15‑1‑1972 the statement of the vendor was recorded on 25‑2‑1972 and it was attested on 13‑3‑1972. Thus it would be seen that if the terminus a quo is the date of tile attestation of mutation, then the suit is plainly within limitation. But the case of the petitioner was that he had taken actual physical possession of the land on 15‑1‑1972 under an agreement in writing with the tenant who agreed to attorn to him because of the sale ire his favour. This evidence was considered by the Courts including the High Court who have concurrently found that this agreement is wholly insufficient to satisfy the condition of actual physical possession "under the sale" within the meaning of section 31 of the Act.

We have heard the petitioner's learned counsel in support, of the petition and we have no reason to take a different view in the matter. The requirement of law for the relevant purpose is physical possession "under the sale". Since vendor himself was not in actual physical possession of the land, he was not in a position to deliver its physical possession to the vendee and any agreement with the tenant with regard to future attornment would not satisfy the requirement of law for the relevant‑purpose.

There is no merit in this petition which is hereby dismissed.

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