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Civil Revision No.39/D of 1985/BWP, decided on 18th March, 1985.

‑‑‑S. 30‑‑Limitation Act (IX of 1908), Art. 10‑‑Pre‑emption suit‑‑ Limitation‑‑Starting time‑‑Sale of suit land was affected through registered sale‑deed‑‑Suit land being undivided share in Khata, was not capable of physical possession prior to registration of sale‑deed‑ Limitation, held, was to be governed by Art. 10, Limitation Act, 1908 and not under S.30, Punjab Pre‑emption Act, 1913‑‑Limitation could not run from date of physical possession of any of vendees‑‑Suit having been filed within one year of registration of sale‑deed, was therefore, quite within time.

‑‑‑Art. 10‑‑Constructive possession of pre‑empted land delivered to husband of vendee, held, would not tantamount to physical possession within meaning of Article 10, Limitation Act, 1908.

M. M. A. Pirzada for Petitioner.

Date of hearing: 18th March, 1985.

On 14‑4‑1982 Allah Ditta respondent filed suit for possession by pre‑emption against Mst. Zubeda Bibi in the Court of Civil Judge, Bahawalpur. The suit was resisted whereon three issues were framed. The parties led their evidence. The trial Court vide its judgment and decree, dated 20‑3‑1984 decreed the suit. Feeling aggrieved by this judgment and decree, Mst. Zubeda Bibi defendant filed appeal which was dismissed by the learned Additional District Judge, Bahawalpur on 9‑1‑1985.

2. Before me the findings of the Courts below on issue No.3 have been challenged. The issue is as under:‑

Whether the suit is not within limitation O. P. D.

3. The learned counsel for the petitioner submits that since physical possession of the suit land was taken by the vendee/ petitioner on 20‑5‑1980, therefore, the suit filed on 12‑4‑1982 was barred by time. The learned counsel further submitted that the statements made by the plaintiff, Nazir Ahmad D.W.1, Nabi Bakhsh D.W.2, Qadir Bakhsh D.W.3, Zia‑ud‑Din D.W.5 and Zubeda Bibi D.W.6 wherein they stated that the physical possession of the suit land was delivered much before the registration of the sale‑deed, have been misread by the Courts below.

4. I have considered the arguments advanced by the learned counsel for the petitioner with care and have not been able to persuade myself) to agree with him. I find that the sale was effected through registered sale‑deed, dated 22‑11‑1981; that the suit for possession by pre‑emption was filed on 12‑4‑1982 i.e within 5 months; that since instrument of sale is registered, therefore, the limitation is governed by Article 10 A of the Limitation Act and not under section 30 of the Pre‑emption Act: that the suit land being undivided share in Khata, was not capable of physical possession at the time of the registration of sale‑deed prior to that, and as such, the limitation in the instant case could not run from the date of physical possession, if any, of the vendee /petitioner on 20‑5‑1980 as claimed by the learned counsel for the petitioner. The relevant provisions of law may be reproduced advantageously:‑

Art. 10.

"To enforce a right of One year. When the purchase takes,

pre‑emption, whether the under the sale sought to

right is founded on law, be impeached, physical

or general usage, or on possession of the whole of

special contract. the property sold, or,

where the subject of the

sale does not admit of

physical possession, when

the instrument of sale is

registered."

The suit having been filed within one year of registration, was quite within time. The learned counsel has failed to point out any 1B misreading/non‑reading of material evidence by the Courts below affecting their judgments. Document EXh.D.l, relied on by the learned counsel also shows that constructive possession of the land was delivered to the husband of Mst. Zubeda Begum, vendee/ petitioner which does not tantamount to physical possession within the meaning of Article 10 of the Limitation Act, and as such, there is no force in the submissions made by the learned counsel for the petitioner.

5.For what has been stated above, there being no merit, the petition is dismissed in limine.

H . B . T . Revision Petition dismissed.

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