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Civil Revision No.87‑D of 1984, decided on 29th February, 1984.

‑‑‑Ss.21 & 30‑‑Suit for pre‑emption‑‑Limitation‑‑Land in dispute, a share out of joint Khata and under cultivation of tenant‑‑Not capable of admitting physical possession within meaning of S.30 of Pre‑emption Act, 1913‑‑Limitation would run from date of delivery of possession if land was capable of admitting physical possession and if that possession was also under sale‑‑Suit, held, was not time‑barred in circumstances‑ Revision being without merits, dismissed in limine.

Ch. Muhammad Saleem for Petitioner.

On 10‑12‑1979 Mst. Zahran respondent filed a suit for possession by way ;of pre‑emption against Abdur Rahim petitioner. The suit was contested whereon nine issues were framed. The trial Court dismissed the suit on 26‑6‑1982. On this the respondent filed appeal which was accepted on 8‑12‑1983. Hence this revision. Before me the finding of the Appellate Court on Issue No.2 , alone has been challenged. The issue is as under:---

"Whether the suit is time‑barred " OPD.

2. The learned counsel submits that the physical possession of the suit land was delivered to the vendee petitioner on 6‑12‑1.978 when an entry was made in the mutation and as such the suit filed on 10‑12‑1979 was barred by 4 days and that there was no legal justification for the learned Appellate Court to reverse .the finding of the trial Court on this issue.

3. I have considered the arguments of the learned counsel with care and have not been able to persuade myself to agree with him. Since it is a case where mutation was attested, therefore, the relevant law for the purpose of limitation is section 30 of the Punjab Pre‑emption Act, 1913 which reads as follows:‑--

"30. 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‑‑

(1) in the case of a sale of agricultural or of village immovable property,

from the date of, the 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 possession of the part of such land or property, whichever date shall be the earlier;

(2) in the case of foreclosure of the right to redeem village immovable property or urban immovable property,

from the date on which the title of the mortgagee to the property becomes absolute; in the case of a sale of urban immovable property;

from the date on which the vendee takes under the sale physical possession of any part of the property."

The plain reading of the section would show that for the purposes of limitation, the date of completion of sale as defined under section 54 of the Transfer of Property Act is immaterial. It is by now well‑settled that limitation would run from the date of the delivery of possession if the land is capable of admitting physical possession and that the possession was also under the sale. Since admittedly the suit land is a share out of joint Khata and was under the cultivation of the tenant, I am of the view that the land was not capable of admitting physical possession within the meaning of section 30 of the Punjab Pre-emption Act. (I of 1913) and as such no exception can betaken to the finding of the learned Appellate Court on Issue No.2. 4. For what has been stated above, there being no merit, the revision is dismissed in limine

Revision dismissed. M.Y.H.

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