Gurdev Singh, J.
1. On the 10th of June, 1958, the appellant Bai Chander Mani brought a suit for pre-empting the sale of agricultural land situate in village Murari Pur, District Narnaul, by her father Hari Ram and her mother Kushalya Devi for Rs. 4,000/- in favour of Bhagirath defendant No. 1 vide sale deed dated the 30th of May, 1957. She claimed right of pre-emption on the plea that she was the daughter of the vendors. She disputed the sale price and prayed for a decree in her favour on payment of Rs. 1,800/- only, on the allegation that the remaining sale consideration has been fictitiously entered in the sale-deed.
The vendee, while contesting the suit, denied the plaintiffs preferential right of pre-emption and also asserted that the entire consideration of Rs. 4,000/- mentioned in the sale deed had been paid nor was it the market price of the properly in dispute. He further pleaded that the suit was barred by time. On trial of the relevant issues the learned Subordinate Judge found that the consideration of the sale was only Rs. 3,700/- and this was also the market price of the property in suit. He, however, dismissed the suit as barred by time.
2. The plaintiff went up in appeal to the learned District Judge. The question of limitation alone was agitated before that Court but the learned District Judge agreed with the findings of the trial Court and dismissed the appeal holding that the plaintiff's suit had been rightly dismissed as barred by time. It is against this judgment and decree of the learned District Judge dated the 24th of December, 1959, that Bat Chander Mani has come up in second appeal to this Court and the only question for consideration before me is whether Or not the plaintiff's suit was barred by time.
3. The facts necessary for the decision of this question are as follows, and they are not disputed. The sale was effected by means of a written agreement between the parties. The sale deed was executed on the 30th of May, 1957, and the same day it was presented to the Sub-Registrar for registration. The Sub-Registrar, however, recorded the statements of the parties concerned that very day, but it was only on the 12th of June, 1957, that he endorsed a certificate of registration on the sale deed itself and registered the document.
The suit out of which this appeal has arisen was instituted by Bai Chander Mani on the 10th of June, 1958. It is also common case of both the parties, as admitted by their learned counsel before me, that prior to the 12th of June, 1957 (when the sale deed was duly registered) the vendee had taken possession of the property. The finding of both the Courts below is also to the effect that the possession of the property was taken by the purchaser 'on or before the 30th May 1957'.
I regret to say that this finding is not definite. When the question of limitation was involved and the decision depended up the date of taking possession of the property in dispute it was the dutyof the Courts below to give a definite finding regarding the date on which the possession passed from the vendors to the vendee. The learned counsel for the parties have, however, taken me through the entire evidence and the appellant's learned counsel has also relied upon the evidence of the witnesses produced by the defendant, namely. Ram Kumar D. W. 1, Hardev D. W. 2, Bhani Sahia D. W. 4 and Bhagirath D. W. 5 all of whom were unanimous in deposing that the possession was taken by the vendor 'one day prior to the registration'.
The parties' counsel, however, agree that in the context in which the word 'registration' has been used by these rustic witnesses they meant by it the date on which the sale-deed was presented to the sub-Registrar for registration i.e. the 30th of May, 1957, and not the date (i.e. the 12th of June 1957), on which the Sub-Registrar recorded his certificate on the sale-deed itself in the presence of the witnesses.
On this point there is no difference between the learned counsel for both the parties and on a fair reading of the evidence adduced in the case I agree with them that the possession of the property in suit was delivered by the vendors to the vendee one day prior to the 30th of May, 1957, i.e. on the 29th of May, 1957, and not on the day on which the sale deed was executed or presented to the Sub-Registrar for registration, i.e. on the 30th of May, 1957.
This conclusion is supported by the evidence of Ram Kumar D. W. 1, Hardev D. W. 2, Bhani Sahia D. W. 4 and Bhagirath D. W. 5. The position adopted by Hari Ram vendor, who is the-father of the appellant, that the possession was handed over to the vendee 15 or 20 days after the sale, has been rejected by both the Courts below and I agree with them that he was obviously making a wrong statement to profit his daughter, Bai Chander Mani appellant, on the question of limitation.
4. The provision regarding limitation for suits to enforce a right of pre-emption is contained in Section 30 of the Punjab Pre-emption Act 1913. As stated therein it will apply only if the case is not covered by Article 10 of the Second Schedule of the Indian Limitation Act 1908. If none of these two provisions of law applies to the case then reference has to be made to the resi-duary provision contained in Article 120 of the Indian Limitation Act. Article 10 of the Limitation Act runs as follows:--
'10. To enforce a One When the purchaser takes
right of Year under the sale sought
premption to be impeached, physical
whether the possession of whole of
right is the property sold, or,
founded on where the subject of the
law, or general sale does not admit of
usage, or on physical possession,
special contract. when the instrument of
sale is registered.'
The terminus a quo for a suit for pre-emption prescribed under the first part of Article 10 re-produced above is the date when the purchaser takes under the sale 'physical possession of whole of the property sold'. It is thus obvious that if, the physical possession is not taken 'under the sale' it would not apply. In such cases the second part of Article 10 would apply if the sale is effected by a registered deed. Since in the present case it has been found as a matter of fact that the possession of the property sold was taken over by the vendee one day prior to the execution of the sale deed it is obvious that the case would not be governed by the first part of Article 10 of the Limitation Act.
5. IN view of the clear language of the last column of Article 10 of the Indian Limitation Act, it is beyond dispute that if the possession of the property cannot be transferred to the vendee physically, be being already in possession, the first part of Article 10 would not have any applicability. This has been the consistent view taken by the Punjab Chief Court and the Lahore High Court. In Ram Peara v. Rup Lal, 80 Pun Re 1918: (AIR 1918 Lah 79) Shah Din J. was dealing with a case in which the vendee had taken possession of the property some two months prior to the date at its actual sale, which was effected by a registered deed. The argument that the possession of the property taken in anticipation of the sale should be considered as taken 'under the sale' was repelled with the following observations:--
'The crucial point for decision in the present case, therefore, is this: When did the vendees take under the sale sought to be impeached, physical possession of the whole of the property sold? Was such possession taken on 26th October 1914, i.e.. about two months before the sale, evidenced by the registered deed, dated 21st December 1914, actually took place; or should it he considered in law to have been taken after the said sale, the delivery of possession on 26th October being treated as a Convenient arrangement entered into between the parties in anticipation of the intended sale? The matter admits hardly of any doubt lor it is clear beyond question both from the terms of the registered sale-deed dated 21st December 1914 and from the statement made by the vendor in the lower Court, that the proprietary rights in the land in dispute did not pass from the vendor to the vendees until the sale-deed was duly executed and registered, and, therefore, the vendees could not take under the sale sought to be impeached, physical possession of the property sold before the date of the said sale-deed.'
In Tola Ram v. Lorinda Ram, ILR 3 Lah 261: AIR 1922 Lah 210), a person had entered into an adhlapinama contract in regard to the holding in Multan district under the terms of which he was to get possession and was to sink a well, erect certain buildings and pay Rs. 300/-. It was further provided in that agreement that it was only on the fulfilment of these conditions and not before that one-half of the holding would become his property.
The question that arose for decision of the Division Bench was whether the period of limitation for a suit to pre-empt the sale of the holding commenced on the date the possession was taken or subsequently when all the conditions were fulfilled and the purchaser became the owner of one-half of the holding, The learned Judge held that because the vendee was in physical possession from the date of the original contract (adhlapi-nama), under the circumstances physical possession under the sale was impossible and Article 10 of the Limitation Act did not apply.
The above decision and Imam-ud-Din v. Khuda Bakhsh, 88 Pun LR 1915: (AIR 1915 Lah 479) were followed by another Division Bench of the Lahore High Court in Dharam Singh v. Kirpal Singh, AIR 1923 Lah 31(2), In that case the vendee was in possession of the property prior to the sale in the capacity of a tenant and it was held that the period of limitation for a suit to preempt the sale began not from the date of the sale but from the date of the mutation in pursuance of the sale. In that case the sale was not by a registered deed.
The same view was taken in Misri Khan v. Shahji, AIR 1924 Lah 394, Dhanna v. Lekh Ram, AIR 1924 Lah 695, Sheo Ram v. Indraj, AIR 1925 Lah 152 (2) and Thakur Singh v. Karam Singh, AIR 1925 Lah 165. In the last case It was also observed that as the law of presumption required strictly physical possession, the mere reporting to the patwari that the vendor had relinquished possession and the vendee had taken up the same, was not enough to prove that the physical possession had been taken under the sale.
6. A reading of Section 30 of the Punjab Pre-emption Act and a perusal of other provisions governing the limitation for suit for pre-emption indicate that the Legislature intended thai the period of limitation for such a suit would start from the date of notice to the public.
7. In ILR 3 Lah 261: (AIR 1922 Lah 210) it was observed that the underlying principle governing the limitation in pre-emption suits is that it ran from the date of notice. If physical possession is taken under the sale, the whole world is given notice of the alienation. If a registered deed is executed constructive possession is given and in the same way constructive notice is given by mutation. In this view of the matter, possession which is not transferred in pursuance of the sale, but in anticipation of it, cannot be considered as storting point of limitation under part I of Article 10 of the Indian Limitation Act.
8. The respondent's learned counsel has, however, urged that the possession delivered on 29-5-1957 in the present case should be taken as possession taken by the vendee under the impugned sale, because it was not in pursuance of any other right that the vendee took possession of the property. I find myself unable to accept this contention. The common case of the parties has been that the sale was effected on 30-5-1957, and it was by a written and registered sale-deed.
No oral sale was ever pleaded nor does the evidence establish that there was an oral sale (if such a sale was legally permissible) prior to 29-5-1937 when the possession was admittedly taken by the vendee. Obviously the vendee had taken possession of the property before the sale was effected. As observed by Martineau J. in AIR 1924 Lah 695, it is impossible for a person to take physical possession of property under the sale of which he had already got physical possession prior to the sale itself.
9. The expression 'under the sale' is clear and unambiguous and there is no justification for stretch-ing it so as to include physical possession taken in contemplation or anticipation of the sale. Generally every written Contract of sale is preceded by a ver-bal talk between the parties leading to it, but for that reason it cannot be said that the sale had been effected when the oral transaction took place between the parties and the possession by the purchaser prior to the execution of the sale-deed be taken as posses-sion under the sale.
A contrary view would lead to absurd results. Supposing in a particular case an agreement of sale is entered into between the parties more than a year before the sale-deed is executed and the vendee takes possession of the properly under the agreement of sale in anticipation of the actual contract. If the argument urged on behalf of the respondent is accepted the period of limitation for a suit to pre-empt such a sale would commence on the date the agreement to sell is arrived at between the parties and possession taken by virtue of that agreement and a suit instituted even on the very day on which the sale-deed is written out after a year will be barred by time under first part of Article 10 of the Limitation Act.
Such a position would be untenable. If the possession taken in contemplation of the sale is held to be the possession taken 'under the sale', it would be opening doors for fraud and the parties to a sale would be successful in defeating the claim of a pre-emptor by merely entering into an agreement to sell and delivering physical possession on that day to the purchaser but agreeing to postpone the execution of the sale-deed to a period beyond one year. The matter may be viewed from another angle.
Before the date of the delivery of the possession under an agreement to sell, as distinguished from the completed contract of sale, can be urged as starting point of limitation under Article 10 Part I it has to be shown that on that day the plaintiff had a cause of action and thus the period of limitation had started to run against him. Where there is only an agreement to sell and pre-emptor comes to Court to enforce his right, he would be non-suited on the short ground that he had no cause of action since there was no sale which he could pre-empt.
No cause of action in favour of a pre-emptor can arise unless there is a valid or completed sale and consequently the period of limitation for a suit to enforce a right of pre-emption cannot under any circumstances commence on a day prior to the completion of the sale. Thus the taking of physical possession by the vendee prior to the sale cannot be considered as starting point of limitation for a preemption suit.
10. For all these reasons I am of the opinion that the possession taken by a vendee prior to the sale cannot be considered as one under the sale for the purpose of determining the limitation for a suit for pre-emption.
11. It has then been urged on behalf of the respondent that since in the present case the possession was taken by the vendee only one day prior to the sale, it should be considered as one taken under the sale. The period elapsing between the delivery of possession and the contract of sale has hardly any bearing on the question in issue. Once it is foundthat the physical possession of the property was not taken under the sale there is no justification for not giving effect to the clear language of the relevant provisions of law.
12. Since it has been found in the present case that the possession was already with the vendee before the 30th of May, 1957, when the sale was effected, the present case would be governed not by the first, but by latter part of Article 10 of the Limitation Act which lays down that where at the date of the sale the property sold did not admit of physical possession, then the period of one year prescribed for a suit for pre-emption shall be reckon-ed from the date on which the instrument of sale is registered. Though the sale deed was presented for registration on the 30th of May, 1957, it was registered only on the 13th of June, 1957, when the Sub-Registrar endorsed a certificate- of registration on it. The suit out of which this appeal arises having been instituted on the 10th of June, 1958, was, consequently, within time.
13. For the reasons stated above, I accept the appeal and setting aside the finding of the Court below on issue No, 4 remand the case to the learned District Judge for decision in accordance with law since he has not dealt with the findings of the trial Court on the remaining issues. The parties are directed to appear before the District Judge on 29-12-1980. The costs of this appeal shall be borne by the parties themselves.