The First Part of Article 97 of the Limitation Act, 1963 is applicable to a suit for pre-emption under the Mahommedan Law where the property is already in possession of the vendee as a tenant.

JUDGMENT :

P. Ray, J. - The plaintiff-opposite party Mohammed Parvej filed a suit in the Court of the Sub-Judge (now Civil Judge, Senior Division), Rourkela, for pre-emption of a sale of a shop room in favour of the defendant-petitioner by a registered sale deed dated November 16,1988. From the pleadings of the parties it appears that the shop room originally belonged to Md. Umer and the defendant-petitioner was a tenant in respect of the said shop room. It also appears that the relevant sale deed was executed on November 16, 1983. The same was copied out and delivered on March 29, 1990. The pre-emptor-plaintiff has also alleged that on the date of execution of the deed, i. e. November 16, 1988, he advanced his claim of right of pre-emption and demanded re-sale of the property to him and again on March 29, 1990, i.e. the date of delivery of the registered document, he demanded the resale of the property affirming his previous demand. The suit for pre-emption was filed on June 24, 1991.

2. The pre-emptee defendant raised an objection that the suit was barred by limitation as the same was filed beyond the period prescribed by Article 97 of the Limitation Act, 1963. The said issue, whether the suit was barred by limitation was tried as a preliminary issue. By the impugned order, the trial Court has held that the suit is not governed by Article 97, but by Article 113 of the Limitation Act, 1963, and accordingly it is not barred by the law of limitation. The pre-emptee defendant has moved this Court in its revisional jurisdiction against the said order of the trial Court.

3. The trial Court has given its verdict mainly upon two grounds. Firstly, it has held that the purchaser being already in possession of the shop room as a tenant before the date of sale, there was no question of taking the physical possession of the suit property and thus First Part of Article 97 of the Limitation Act was not attracted. Secondly, it has taken the view that the right for pre-emption under the Mahommedan Law does not automatically accrue on the date when the sale is completed inasmuch as under the Mahommedan Law the plaintiff is to declare his intention (Talab-i-mowasibat) to assert his tight of pre-emption after the completion of the sale. The trial Court his further taken the view that there is great difficulty in applying Article 97 of the Limitation Act to a case where information of sale is received by the pre-emptor long after the sale is completed and there is (sic) in putting forward the required demands, namely, 'Talab-i-mowasibat' and 'Talab-i-ishhad'.

4. Mr. A. Mohapatra, learned Advocate for the pre-emptee petitioner has urged that the claim for pre-emption under the Mahommedan Law being a right founded on law, is governed by Article 97 of the Limitation Act and the trial Court has committed error in holding that Article 97 of the Limitation, Act is not applicable.

5. Mr. D. K. Mohapatra, learned Advocate appearing for the pre-emptar opposite party, has supported the impugned order and has urged that where the disputed property does not admit of physical possession, Second Part of Article 97 cannot be made applicable to a suit for preemption under the Mahommedan Law because right of pre-emption under the Mahommedan Law does not accrue on the date when the sale deed is registered, but only after the demands for pre-emption, as required under the rules of the Mahommedan Law are made after completion of the sale. He has submitted that the vendor being already in possession of the shop room as a tenant, the property did not admit of physical possession.

6. For the purpose of appreciation of the questions raised, it is necessary to reproduce Article 97 of the Limitation Act, 1963. Article 97 of the Limitation Act is quoted below for reference :

"97. To enforce a right One year when the purchaser

of pre-emption takes under the sale

whether the right sought to be impeached,

is founded on law physical possession

or general usage of the whole o