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Civil Appeal No.3 of 1986, decided on 9^thJanuary, 1989.

(On appeal from the judgment and decree of the High Court. dated 7 1 1985 in Civil Appeal No.12 of 1984).

S. 29 Limitation Act (IX of 1908), Art.10 Right of prior purchase Enforcement of Period of limitation Provisions of S.29 of Prior Purchase Act envisage limitation wider Art.10 of Limitation Act, failing which such limitation is to be determined under its own provisions Period of one year to enforce right of pre emption is provided under Art. 10, Limitation Act Limitation would run from the time when the purchaser takes under the sale sought to be impeached, physical possession of the whole of the property sold, or where the subject of sale does not admit of physical possession, when the instrument of sale was registered Where, however, physical possession of whole of the property, passed on much earlier from the time of the transaction of sale made in the shape of decree in dispute, provisions of Art.10 of Limitation Act would not be attracted Provisions of S.29 of Prior Purchase Act would be applicable in absence of application of Art.10, Limitation Act When physical possession of land, preceded transaction of sale, first qualification pertaining to date of attestation of mutation alone would be enforceable Period of limitation would thus be one year Suit instituted beyond period of one year would be patently beyond time.

Arts. 10 & 120 Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.) Right of prior purchase Provisions of Act.120, Limitation Act being a residuary Article, could be invoked in aid where no other definite provision of law was attracted Delivery of physical possession to vendee, registration of deed and attestation of mutation were constructive notice to the would be pre emptor Resort to residuary provisions of Art.120 of Limitation, in absence of such qualification, would be permissible wherein limitation was six years from the time when cause of action accrued Where, however, provisions of S.29 of the Right of Prior Purchase Act were attracted, limitation has to be reckoned under that provision and not under Art.120, Limitation Act.

Kh. Muhammad Saeed, Advocate for Appellants.

Sh. Abdul Aziz, Advocate for Respondent No.l.

The appeal is addressed against the order of the High Court passed on January 7, 1985, whereby the suit for possession by pre emption filed by the appellants, on reversing the findings of subordinate Courts, was dismissed for want of limitation.

2. The suit land measuring 15 kanals out of 19 kanals comprising survey No.293 is situated in village Jaglari, Tehsil Bagh. It was in the ownership of Jang Khan and others. Mir Alam Khan respondent No.l brought a suit for declaration claiming his ownership by virtue of oral sale in his favour. The suit was instituted on May 28, 1963, in the Court of Sub Judge Bagh, against Jang Khan, Ali Ahmed Khan, Nika, Resham Khan, Balour Khan, Mst. Rahim Jan and Hussain Khan. It was averred that the land was purchased by Mir Alam Khan on June 15, 1950, by oral sale for a sum of Rs.500. He took possession of the land at the time of sale and was enjoying the same continuously, in his own right and title. Balour Khan admitted the suit on September 30, 1963, by receiving additional price in the sum of Rs.400. Jang Khan and Nika Khan also admitted the suit on November 2, 1963, on receipt of Rs.400 each. The claim of the plaintiffs with respect to the share of other defendants namely Mst. Rahim Jan and Hussain Khan was withdrawn and ex parte order was passed against Ali Muhammad and Resham Khan on August 17, 1965, when the suit was decreed in favour of Mir Alam Khan. Mutation on the basis of the decree was attested by the Revenue Officer, in favour of stir Alam a on March 18, 1966.

3. Sher Alam and Bashir Hussain instituted a suit for possession by pre emption by alleging the decree passed on August 17, 1965, as sale. It was averred that decree was secured in disguise of declaration to defeat their prior right of purchase. The suit was instituted on August 17, 1971, i.e. 6 years after passing of the decree. Mir Alam repudiated the claim of pre emptors and pleaded limitation to defeat the suit. The trial Court decreed the suit on April 29, 1981. The finding of the trial Court was upheld by the Additional District Judge Bagh by his order passed on March 3, 1984. In second appeal, however, the learned Judge in the High Court, dismissed the suit for want of limitation. It was. held that in absence of registered deed of sale and passing of possession prior to the transaction of sale, the limitation would run from the date of admission of the suit and not from the date of passing of the decree. In view of the learned Judge the limitation of 6 years described under Article 120 of the Limitation Act, was available to the pre-emptors. On this it was found that the suit was beyond time as it was instituted after more than 6 years from the date of admission of the suit. The appellants and the respondents both disagreed with the finding of the learned Judge in the High Court as in view of the appellants limitation started running from the date of decree as such the suit was within time, under the provisions of Article 120 of the Limitation Act. The counter stand was that the period of limitation was one year as contemplated under section 29 of the Right of Prior Purchase Act and it commenced from the date of attestation of mutation in the Revenue. Register, maintained under law.

4. The proposition raised before us, has been reduced to the point of limitation applicable to pre emption suit.

5. Section 29 of the Right of Prior Purchase Act, postulates that in any case not provided for by Article 10 of 2nd Schedule of the Limitation Act of the State, the period of limitation in a suit to enforce a right of prior purchase shall be one year in case of sale of agricultural land or village immovable property:

(i) from the date of attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Land Revenue Act;

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

It is evident that the provisions of section 29 envisage limitation under Article 10 of the Limitation Act, failing which limitation is determined under its own provision.

6. Article 10 provides period of one year to enforce a right of pre emption. The limitation runs from the time when the purchaser takes, under the sale sought to be impeached, physical possession of the whole of the property sold, or where the subject of the sale does not admit of physical possession, when the instrument of sale is registered. The provisions of Article 10 are not attracted in the present case as the physical possession of whole of the property, passed on much earlier from the time of the transaction of sale made in the shape of decree in dispute. This factual aspect is undisputed. It is also admitted that the sale of land was not made through a registered instrument:

7. In absence of application of provisions of Article 10 we have to the provisions of Section 29 of the Right of Prior Purchase Act. It 1rescribed the limitation as one year. The limitation would run from

(i) the date of attestation of the sale by competent Revenue Officer in the Register of mutations, maintained under law; or

(ii) the date on which the vendee takes under sale, physical possession of any part of the land or property, whichever is earlier.

Here in this case it is already held that physical possession of land preceded the transaction of sale. Therefore, the first qualification pertaining to date of attestation of mutation alone is enforceable to the case. It is on record that vide Exh. D.G. the mutation of sale of the suit land was attested in the Register of mutations by the Revenue Officer Bagh, on March 18, 1966. This state of fact is unrebutted. Thus in the light of the provisions of section 29 in present case limitation commenced from the date of attestation of mutation. The period of limitation was "obviously one year. The suit was instituted on August 17, 1971. It was patently beyond time.

8. The learned Judge in the High Court failed to apply his mind to the text of Section 23 and fell in error by analysing the proposition of limitation by adverting to Article 120 of the Limitation Act. Article) 120 is a residuary Article. Its provisions can be invoked in aid of, the proposition where no other definite provision of law is attracted.

9. The qualifications or conditions regulating commencement of time of limitation, as prescribed under Article 10 and Section 29 indicate that the legislature prescribed such conditions to afford adequate notice of sale to all concerned. The delivery of physical possession to the vendee, registration of deed and attestation of mutations are constructive notice to the concerned pre emptors. Where these qualifications are found absent in that case it is permissible to resort to the residuary provisions of Article 120 of Limitation Act, wherein the limitation was 6 years from the time when (he cause of action accrued. In the present case the provisions of Section 29 of the Right of Prior Purchase Act, are attracted as the mutation on the basis of sale by a decree was duly attested by the Revenue Officer Bagh where the land is situate. Therefore, the limitation is to be reckoned under the provisions of Section 29 and not under Article 120 of the Limitation Act. The controversy is resolved accordingly.

There is o force in the appeal it is therefore, dismissed with costs.

A.A./244/S. C. A. Appeal displeased.

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