1. The question that arises in this appeal is whether Article 120 applies or Article 10 of the Limitation Act. The Lower Appellate Court has held, that Article 120 applies, as the words of the third column in Article 10 exclude the position that arises in this case. The plaintiff had never given possession to his vendee and it is found that the second vendee never took possession, because of the fact that the plff. remained in possession which was wrongful. In my opinion, however wide a meaning can be claimed for the words 'subject of the sale does not admit of physical possession,' it cannot be read as including the case where possession has not been taken for such a reason only. I therefore think that the second alternative position in Article 10 does not apply. That being so, Article 120 will in my opinion apply, because it is a case 'for which no period of limitation is provided elsewhere.'
2. The second appeal is dismissed with costs.
3. This second appeal arises from a suit for pre-emption and the question argued in second appeal is that it is barred by limitation, under Article 10 of the Limitation Act. The Lower Appellate Court has applied Art, 120.
4. The facts found are that in 1911 the plaintiff to whom the plaint property originally belonged sold it to the 1st defendant by Ex. 11, with a convenant in it for pre-emption, in case of re-sale by the vendee. Possession of the property was however not given to the vendee, but was retained by the plaintiff under an oral arrangement by which he was allowed to remain in possession till certain betel vines growing on the land died down. In March 1914 the betel, garden ceased to exist, but nevertheless plaintiff continued in possession and he has done so, till the date of the suit. On the 15th April 1914, the 2nd defendant who is the appellant before us, purchased the property by Ex. I, with notice of the covenant, from the 1st defendant and he attempted to obtain possession, but he was successfully obstructed by the plaintiff. The plaintiff's possession after the betel garden ceased to exist, was conceded to be that of a trespasser as his right of pre-emption, it is admitted, gave him no legal right in the property and no right to hold possession of it against defendants 1 and 2. What was sold under Ex. I was the property itself, the 1st defendant being the sole owner of it and no one else having rights in it. Plaintiff brought the present suit to enforce his right of pre-emption obtained by his contract, in 1911; that is more than one year from the date of registration of Ex. I.
5. The Lower Appellate Court held that Article 10 did not apply to the case, as neither of the alternatives in column 3 of the article applied, and that Article 120 therefore applied and suit was not barred. The 1st alternative was held not to apply on the finding that the 2nd defendant never got possession and the 2nd alternative on the ground that the property sold did admit of physical possession being given of it. The appellants' contention before us is that the 2nd alternative applies as the vendor was not in a position to give physical possession to the vendee, that possession being with the plaintiff and that limitation began to run under Article 10 from the date of the registration of Ex. I. The decision of that question turns upon the meaning to be attached to the words ' the subject of the sale does not admit of physical possession ' in Article 10. Are those words applicable when a trespasser is in possession of the land sold and the vendor is in consequence unable to put the vendee in actual possession; or do they refer to the nature of the property sold, whether it is such as would admit of physical possession being given of it or not The natural meaning of the words would seem to support the latter suggestion and in the only case which has been brought to our notice, where the meaning of those words has been directly considered, Chandansingh v. Chandi Prasad 8 All. W.N. 227 that is the view taken.
6. The appellants' vakil has drawn our attention to the rulings in Batual Begam v. Mansur Alt Khan I.L.R.(1901) All. 17 and Kaunsilla Kunwar v. Gopal Prasad I.L.R. (1906) All. 424 and though in both'cases Article 10 was held not to apply, but Article 120, he contends that it was because there was no registered instrument in either of them and that their ratio decidend supports him. The first case is a Privy Council decision and requires careful consideration. It was an appeal from the Full Bench of the Allahabad High Court reported in Batul Begam v. Mansur Ali Khan I.L.R.,(1898) All. 315 and their Lordships affirmed that decision. That case referred to a conditional mortgage, which had been foreclosed, of an undivided share in an estate. The person who fore-clausesed and who was held to fall within the word purchaser in Article 10, had got a decree for possession against his co-sharers and others and had taken formal or symbolical possession, but he never had actual possession of any item of property. The appeal to the Privy Council was by the plaintiff who was claiming pre-emption and it was she who contended that Article 10 applied; the argument being that the property was one capable of being taken possession of and therefore the first part of column 3 applied and as no possession had actually been taken the limitation had not yet begun to run. That explains why the plaintiff sought to apply Article 10 and not Article 120, though the period fixed in the former is much shorter than the one fixed in the latter. The main discussion in the case was about the meaning of the words 'physical possession' and their Lordships held that they meant ' personal and immediate possession. They also held that as vendee's purchase was only of a share he could not get such possession under the sale, without bringing a suit for partition and consequently the case did not fall within Article 10 'so far as possession was concerned.' They were discussing only the first part of column 3 of Article 10, as they say expressly '' this being so, the alternative stated in the thjrd column relating to registration arises, but the appellant did not argue upon it and no suggestion has been made that it affects the argument.' The reason for appellant's conduct is clear, because there was no registered instrument in the case. This ruling is conclusive of the meaning of the expression 'physical possession ' in both parts of column three; but their Lordships did not consider the meaning of the words 'the subject of the sale does not admit of ' which are the words we have to construe. When their Lordships said that the vendee could not take physical possession of any definite portion of the lands, without a suit for partition, they were dealing with the argument that he could and therefore the plaintiff was entitled to wait till he did, under the first part of column 3. I do not consider their Lordships' observation to be one bearing on the meaning of the words 'admit of possession in the 2nd part. That ruling does not seem to me to apply to the question before us. I would also observe that their Lordships were dealing with a case where the subject of the sale was the right to an undivided share of an estate, which was in the possession of co-sharers or tenants under them and which can hardly be said to admit of physical possession being given; whereas in the ease before us, the subject of the sale was the land itself and it was properly so, as there were no outstanding rights of their parties in it. It is no doubt true that a suit would have been necessary to recover possession from the plaintiff; but that does not affect the nature of the subject of the sale in the case, which was the land itself. In cases where there is an outstanding interest in third parties in the property sold, which gives them a right to possession, as in cases of leases and usufructuary mortgages, even if the sale purports to be of the land itself, the sale Would pass only the lessor's or the mortgagor's estate; the subject of the sale in such cases my well be held to be only that estate and not the land; and as physical possession of such an estate cannot be given and the vendor not being entitled to the possession of the land itself could not pass it on to the vendee, it may be that in such cases the second part of column 3 will apply, if there is a registered instrument. The argument in the case in Kaunsilla Kunwar v. Gopal Prasad (1906) I.L.R, 28 All. 424 which was one of possession by lessors, can be distinguished on this ground and it is not necessary to consider whether we should follow it or not.
7. I think effect should be given to the natural meaning of the words ' the subject of the sale does not admit of physical possession' and when we are satisfied that the subject of the sale was properly the land itself, as in this case, we must hold that the case does not fall within the second alternative of column 3 of Article 10, notwithstanding that the possession is with a trespasser, or with a person who holds it without any right to such possession.
8. In this view, it is not necessary to decide, whether Article 10 will apply or Article 120 to this case. If Article 10 is to be held to apply to cases where a purchaser can, but does not, take possession, as falling within the first part of column 3 as the full Bench of the Allahabad High Court in Balul Begam v. Mansur Ali Khan I.L.R.(1898) .All. 315 seemed to have been inclined to hold, (see paragraph 2, page 319), the limitation will run only from the date when he takes possession. Applying this view, the plaintiff here is well within the time. If Article 120 applies, he is also admittedly within time. In either case the second appeal fails. I am however inclined to think the better view is that Article 10 applies and limitation commences only, when possession is taken; for, if a suit is brought after possession is taken, but beyond 6 years from the date of sale, it would fall exactly within the words of the article and it will then be difficult to apply Article 120 and to hold that it was already barred under it.
9. I agree in dismissing the second appeal with costs.