Turner, Spankie and Oldfield, JJ.
1. The provisions of the former law, Act XIV of 1859, declared that in suits for pre-emption the period of limitation should be computed from the time at which the purchaser shall have taken possession under the sale impeached. On the construction of the term 'possession' this Court held in Ganeshee Lall v. Toola Ram H.C.R. N.W.P. 1868 p. 367, that such possession was intended as the nature of the thing sold admitted of, and that it did not necessarily mean tangible or visible possession. Thus, where a property was in the possession of the mortgagee, and the rights of the mortgagor were sold, it was held that possession was acquired under the sale as soon as the right of redemption was completely transferred to the purchaser, and that limitation must be computed from that period and not from a subsequent date when the mortgage having been discharged from the usufruct the purchaser was able to resume possession. It was pointed out that at the time of the sale two persons had rights in the property, the mortgagor and the mortgagee, and that the subject of the sale was the right of the mortgagor as it subsisted at the time of the sale. Seeing that the purchaser had purchased the right to recover and enjoy the profits at an indefinite period, for it could not be ascertained with certainty at what date the debt and interest would be discharged from the usufruct, it was deemed inequitable to allow a pre-emptor to obtain the property in 1867 freed from mortgage at the price paid by the purchaser in 1860 for the estate encumbered with the mortgage. As an analogous case it was suggested that, if land were leased for a certain term at a nominal rent, and during the term the lessor sold and conveyed the reversion to a purchaser, although the purchase would not have conferred on the purchaser the right to any immediate profit from the estate, the subject of the sale would have been his and in his possession, for all intents and purposes, as completely as before the sale it was in the possession of the vendor.
2. The language of the present Limitation Act, IX of 1871, differs somewhat from that of the former in declaring the date from which the period of limitation is to be computed in suits for pre-emption. In Schedule ii, Clause 10, it is declared the period begins to run when the purchaser takes actual possession under the sale impeached, and the question put to us is, whether there has been any change in the law, whether by actual possession we are to understand in all cases visible and tangible possession or such possession as the nature of the subject of the sale allows.
3. We have felt some difficulty in determining this question, for it may be presumed the term actual was not introduced without a purpose. But it will equally apply to subjects of sale which admit of visible and tangible possession as well as to subjects of sale which do not admit of such possession. The purchaser of an. equity of redemption or of a right of reversion is, it must be allowed, actually in possession, of what he has purchased, when the rights of the mortgagor or lessor have been completely transferred to and vested in him. In the one case he and he only could maintain suit for any injury to the reversion, in the other he and he alone could maintain suit for damage done by the mortgagee to the property mortgaged in contravention of the terms of the mortgage. We are pressed, too, by the argument in Ganeshee Lall v. Toola Ram H.C.R. N.W.P. 1868 p. 367, that it would be inequitable to allow a pre-emptor to lie by for a number of years to see whether the purchase was beneficial or otherwise, and to come in and claim the benefit of the sale when the subject of the sale is freed from the encumbrance existing at the time of the sale, or where its market-value may have considerably increased. Of course if the language of the law admitted but one construction we could not allow this consideration to influence us, but where it is not incompatible with a construction that avoids hardship and injustice, we are at liberty to adopt that construction. It appears to us that full effect is given to the term actual possession if it be held that, where the nature of the subject of the sale admits, of visible and tangible possession, limitation will run from the period when tangible possession is taken, but that when the nature of the subject of the sale does not admit of tangible possession, limitation runs from the date when the subject of sale is completely conveyed to and vested in the purchaser, and he has acquired such possession as before the sale was enjoyed by the seller.