IMAM ALI SHAH vs MUHAMMAD SHARIF KHAN
This petition arises from a judgment of the Peshawar High Court dismissing a revision petition in a pre-emption suit regarding agricultural land. The core legal question was whether the suit for pre-emption was barred by limitation under Section 31 of the N.-W.F.P. Pre-emption Act, based on the date of physical possession under the sale. The Supreme Court held that the concurrent findings of the lower courts were correct, concluding that an agreement with a tenant for future attornment when the vendor was not in actual physical possession does not constitute actual physical possession 'under the sale' to trigger the period of limitation. The petition was accordingly dismissed. The key principle laid down is that physical possession under a sale requires actual delivery of possession by the vendor, and an agreement with a tenant regarding attornment without such actual delivery is insufficient to satisfy the requirements of limitation provisions under pre-emption law.
- Does an agreement with a tenant for future attornment constitute actual physical possession under a sale for the purposes of limitation in a pre-emption suit?
- What is the starting point of limitation for filing a pre-emption suit when physical possession under the sale is disputed?
- Can a vendor who is not in actual physical possession of the land deliver physical possession to a vendee to satisfy pre-emption limitation requirements?
- Section 31, N.-W.F.P. Pre-emption Act
1. MUHAMMAD GUL, J.-This petition is from the judgment of the Peshawar High Court dated 7-7-1975 dismissing a revision petition by the petitioner herein arising in a suit for the pre-emption of land.
2. Vide mutation attested on 13-3-1972, land measuring 8 kasals 13 marlas bearing Khasra Nos. 1111 and 1146 situate in village Amandi, Tehsil and District Bannu was purchased by the petitioner herein from one Farooq allegedly for Rs. 16,240. On 5-3-1973. That is to say within one year of the date of attestation of the mutation, the respondent filed a suit for pre-emption but only in respect of Khasra No. 1111 measuring 3 kanals 2 marlas on payment of pro-rata price of Rs. 1200 only on the ground that the respondent's superior right of pre-emption on the basis of contiguity and participation in the immunities was confined to Khasra No, 1111 only and did not extend to the other Khasra No. The petitioner contested the suit, inter alia, on the ground that it was barred by limitation because be entered into physical possession of tae land under sale on 15-1-1972, that is to say before the attestation of mutation in his favour and as such the suit was barred under section. 31 of the N.-W.
3. F. P. (Pre-emption) Act.
4. It appears that the mutation was actually entered on 15-1-1972, the statement of the vendor was recorded on 25-2-1972 and it was attested on 13-3-1972. Thus it would be seen that if the terminus a qua is the date of the attestation of mutation, then the suit is plainly within limitation. But the case of the petitioner was that he had taken actual physical possession of the land on 15-1-1972 under an agreement in writing with the tenant who agreed to attorn to him because of the sale in his favour. This evidence was considered by the Courts including the High Court who have concurr-- ently found that this agreement is wholly insufficient to satisfy the condition of actual physical possession "under the sale" within the meaning o section 31 of the Act.
5. We have heard the petitioner's learned counsel in support of the petition and we have no reason to take a different view in the matter. The requirement of law for the relevant purpose is physical possession "under the sale". Since vendor himself was not in actual physical possession of the land, he was not in a position to deliver its physical possession to the vendee and any agreement with the tenant with regard to future attornment would not satisfy the requirement of law for the relevant purpose.
6. There is no merit in this petition which is hereby dismissed.
Cited by 6 cases
- ABDUL MAJEED Versus MOMINA SYEDA FATIMA 2001 CLC 165
- KHUSHI MUHAMMAD Versus MURAD ALI 1998 MLD 1793
- NOOR MUHAMMAD vs AHMAD through Legal Heirs and anothers 1997 PLD Supreme Court 371
- Mst. SAFIA BEGUM vs ALLAH NAWAZ 1990 CLC 1852
- SHER NAWAZ KHAN vs BAT IN KHAN And Other 1989 CLC 1332
- MUHAMMAD MALIK Versus RAZIA BEGUM 1988 PLD 45