Find a Lawyer

Regular Second Appeal No. 196 of 1979, decided on 4th December, 1979.

--- S. 30(1)-Limitation-Date of attestation of mutation of sale and date of taking by vendee physical possession of any part of land Held, two alternative conditions for reckoning of limitation-Limita tion, however, held, to be reckoned from earlier of such dates. [Limitation].

Asghar Ali fop Appellant.

Zafar Pasha for Respondent.

Dates of hearing : 12th and 13th November, 1979.

The appellant is aggrieved by the judgment and decree dated 12-2-1979 passed by the learned District Judge, Sheikhupura whereby the judgment and decree dated 2-12-1978 passed by the Darned Civil Judge, Nankan4, Sahib has been affirmed.

2. The brief facts of the case are that the appellant purchased land measuring kanals 11 marlas situated in village Dolta, Tehsil Nankana Sahib District Sheikhupura .for a sum of Rs. 3,275. The mutations in this behalf were entered on 2-2-1973 and were eventually sanctioned on 16-3-1973. According to Mutation No. 35 (Exh. P/1) the vendor admitted before the Assistant Collector that he had received the consideration and had handed over possession to the vendee. The mutations were duly sanctioned on 16-3-73 Ziarat Ali respondent filed a suit for possession through pre-emption which was registered as Case No. 95/1. By his judgment dated 2-12-1978 the learned Civil Judge decreed the suit in favour of the plaintiff on payment of Rs. 3275, subject to the payment of price (less 1/5th pre-emption money already deposited) by 10-1-1979 falling which the suit shall be deemed to be dismissed. The appellant unsuccessfully challenged the order of the learned

Civil Judge before the learned District Judge, Sheikhupura. Hence this appeal.

3. Before nee the learned counsel for the appellant co fined his submissions to the question of limitation alone.' He asserted that the learned District Judge has misconstrued the provisions of section 30 of the Pre-emp tion Act, 1913, and had failed to appreciate the judgment in the case of Sher Muhammad v. Rajada (PLD1969Lah.471) and Jarrgi v. .lhanda (PLD 1961BJ34).

4. In order to appreciate the arguments it is necessary to refer to the provisions of section 30 of the Pre-emption Act, 1913. The relevant portion whereof reads as under:-

Limitation.-In any case not provided for by Article 10 of the Second Schedule of the Limitation Act, 1908, the period of limitation in a suit to enforce a right of pre-emption under the provisions of this Act, shall,. notwithstanding any thing in Article 120 of the said Schedule, be one year-

(a) in the case of a sale of agricultural or of village immovable property, from the date of attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical posses sion of any part of such land or property, whichever date shall be the earlier."

A bare reading of the provisions of clause (1) of section 30 shows that in regard to agriculture land or village immovable property the limitation of one year has to be reckoned.

(f) from the date of attestation of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or

(ii) from the date on which the vendee takes under the sale physical possession of any part of such. land or property whichever date shall be the earlier.

5. The learned counsel for the appellant contended that the judgment of the West Pakistan High Court, Lahore in Sher Muhammad v. Raja clearly supports the appellant's case. ' In that case the sale of land was completed in the year 1951, notwithstanding the rejection of mutation. Subsequently mutations were sanctioned in May, 1956. On the evidence before it the .Court came to the conclusion that the vendee/respondent had paid the price to the vendor who delivered up possession of the land in question in the year 1951. There was no evidence that upon rejection of the mutation the parties had rescinded the sale by repayment of the price to the vendees and re-delivered the possession to the vendor. On the contrary the vendee was shown to be in continuous possession of the land since, 1951. The Court recorded the opinion that the sale was completed in the year 1951, but only conditional invalidity attached to it was removed in the year 1956.

In Jangi v. Jhanda it was held that the sale shall be deemed to have been completed on the day on which it was affected and not on the day on which the mutation in the revenue record was sanctioned about it. It was further observed that title in the .property passes when the transaction of sale is completed and is not postponed till the attestation of the mutation in the revenue record. The learned District Judge appears to have misdirected himself in law in computing the period of limitation from 16-3-1973, i.e. the day when the mutation was sanctioned with the observation that "it is front the date of the attestation of the sale by the Revenue Officer that the appellant is recognising the start of the period of limitation and not from the date of taking possession of the land in dispute as was the case in the afore mentioned precedent cited at the bar on behalf of the appellant". To my mind the learned District Judge failed to record a clear finding as to whether the appellant's case falls within the purview of the first or the second category contemplated by clause (1) of section 30 of the Pre-emption Act, 1913.

6. The learned counsel for the respondent vehemently argued that the sanction of mutation is the starting point of limitation and the mere entries in this behalf do not give rise to rights whatsoever as the same were liable to be rejected or cancelled at any time .I am afraid the argument is without any substance. Clause (1) of section 30 clearly lays down two alternative conditions from which the limitation of one year may be reckoned. First being the date of attestation of the sale by the Revenue Officer in the register of mutation and the second the date on while The vendee takes under the sale physical possession of any part of such lance.

7. If the interpretations sought to he placed by the learned counsel for the respondent were to be accepted, only the first condition would be relevant and the second would become redundant. in its wisdom has chosen to lay down two alternative conditions acid has farther declared in, unequivocal terms :feat the limitation shall he reckoned from the earlier of they dates. If attestation of mutation were to be the only. date from which limitation has to be reckoned the alternate clause (which permits of the limitation to be computed from the date of possession) together with the expression "which ever dale shall be tire earlier" shali also become redundant and mere Surplus age because in every case it shall have to be reckoned from the date of attestation of the mutation under the first clause. It is well settled principle of interpretation that the Courts would avoid- that interpreta tion which would render any words in ally enactment as surplus usage. I have no doubt in my mind that tile appellant's case is squarely covered by the decision ill P L D 1969 Lah. 471 and the limitation has to be reckoned from 2-2-1973 i.e. the date on which the appellant took possession of the land and as such the suit filed on 14-3-1974 was barred by limitation by 12 days.

8. The result is that the appeal succeeds and is allowed with costs.

M. A. K Appeal alto wed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.