MUHAMMAD MURAD vs PIR BAKHSH AND ANOTHER

' This Regular Second Appeal has arisen out of a pre-emption suit brought by respondent No, 1, Pir Bakhsh against the appellant, Muhammad Murad, and respondent No, 2, Ghulam Haider. The suit which was instituted in the Court of Civil Judge, Ahmadpur East, District Bahawalpur related to a piece of land sold by respondent No, 2 in favour of the appellant. It was alleged by respondent No, 1 that he was a collateral of the vendor (respondent No, 2) and had, therefore, a superior right of preemption. Resisting the suit, it was urged by the appellant that it was time-barred and that respondent No, 2 had waived his right of pre-emption. These pleas had found favour with the learned Civil Judge with the result that the suit was dismissed. Respondent No, 1 went in appeal before the District Judge, Bahawalpur, who reversed the findings of the learned Civil Judge on the issues of limitation and waiver and decreed the suit. Hence this second appeal by the appellant.

2. #TS##It is not disputed that the sale involved in the present case was oral. It was followed by a mutation attested on 24th August, 1962. A Exh. D. 4 is a copy of the mutation. The suit was instituted on 29th July, 1963. The plea raised by the appellant was that he had taken possession of the disputed land before the mutation was attested and, therefore, the suit was time-barred.

According to him, possession of the land was delivered to him on 11th July, 1961 when respondent No, 2 had agreed to sell the land in his favour by executing a deed, Exh. D.

1. The argument advanced by learned counsel for the appellant, therefore, was that the period of limitation started running against respondent No, 1 from 11th July, 1981 and, therefore, the suit brought by him on 29th July, 1963 was beyond limitation. This contention of the learned counsel was based on section 30 of the Punjab Pre-emption Act, 1913.

3. There is no dearth of authority on the point that the possession which matters for the purpose of section 30 of the Punjab Pre-emption Act is possession under the sale which constitutes the subject-matter of a suit for pre-emption. It was frankly conceded by-learned counsel for the appellant that in the instant case the sale had taken place on 24th August, 1962 when the mutation was attested. Thus, the possession of the appellant before the date of sale was of no consequence even though it was in pursuance of the agreement of sate. An agreement of sale cannot be equated with the sale. In this view of the matter, the pre-sale possession of the appellant is to be ignored for the purpose of calculating the period of limitation. Admittedly, the sale in the present case had taken place on the same date when the mutation was sanctioned. The period of limitation, therefore, commenced from the date of the attestation of the mutation. It was not disputed by learned counsel for the appellant that the suit was within time with reference to the date of attestation of the mutation. In the circumstances, the finding of the learned District Judge that the suit was within time is unexceptionable and is, therefore, upheld.

4. Learned counsel for the appellant did not say anything against the verdict of the learned District Judge that respondent No, 1 had not waived his right of pre-emption. His finding in this behalf is, therefore, affirmed.

5. Resultantly, this appeal fails. It is dismissed with costs.