A suit to enforce a right of pre-emption in the case of a sale of an equity of redemption of urban immovable property does not come within sub-s. (3), S. 30 of the Punjab Pre-emption Act, 1913, and is governed by the general residuary Art. 120, Sch. II, Limitation Act, 1908.

FACTS :- This was a Letters Patent Appeal arising out of a suit for possession by pre-emption of the house, situated in Jullundur City, Kucha Pathanan, Mohalla Rangrezan. To appreciate the point of law involved in these proceedings the facts, so far as material, are set out. On 18-1-1934, Nasir Din and Mohammud Haji mortgaged with possession the house in suit for Rs. 1400 to Ganga Singh and Ram Lal on the foot of the deed of mtge. Ex. D-3. On the same day the mtgors. executed a rent deed, Ex. D-4, in favour of the mtgees. under which they took the house on lease from the mtgees. on an annual rent of Rs. 36, with the result that the actual possession of the house remained with the mtgors. Ganga Singh mtgee. gifted his mtgee. rights to his daughter Mst. Sardhi. Nasir Din mtgor. died and on 11-8-1939, Mohammad Haji and Mst. Fazal Bibi widow of Nasir Din on the foot of unregistered sale-deed Ex. D-5 sold the equity of redemption in the house for Rs. 50 in favour of Mst. Sardhi and Ram Lal, the two co-mtgees. By the purchase of the equity of redemption, Ram Lal and Mst. Sardhi became full owners of the house in suit. Later on, on 29-4-1940, Mst. Sardhi sold her share in the house to Ram Lal for Rs. 700 on the foot of document, Ex. D-2. Thus Ram Lal became the absolute owner of the house on 29-4-1940. On 16-8-1944, Kharaiti Ram pltf. instituted a suit for possession of the house by pre-emption on payment of Rs. 1450. Ram Lal defts. vendee resisted the suit on a number of pleas, one of such being: "2. Was the suit within time?" The trial Court found in favour of the pltf. and decreed with costs the pltfs suit for possession by pre-emption against the deft. vendee on payment of Rs. 1450 within one month from 7-7-1945.

From the decree passed by the trial Court, Ram Lal deft, vendee went up on appeal. The Ct. of first appeal found that the property, at the time of the sale, being in possession of the tenants, was incapable of physical possession and that, in any case, the sale was made of a right which was not capable of physical possession and upon those findings dismissed the appeal with costs. Ram Lal, deft, vendees, went up in further appeal to the H. C. Mahajan J. who heard the appeal, finding that the suit fell within sub-s. (3), S. 30, Punjab Pre-emption Act, 1913 allowed the appeal, set aside the decrees of the Cts. below and dismissed the pltfs. suit leaving the parties to bear their own costs throughout. But in view of the fact that the law on the subject was not clear Mahajan J. allowed a Letters Patent Appeal from his judgment. The Letters Patent appeal was heard by Harnam Singh and Falshaw JJ. In this appeal, it was urged that Art. 10, Limitation Act, 1908 and S. 30 of the Punjab Pre-emption Act, 1913 have no application to suits for pre-emption arising out of sales of urban immoveable property by unregistered deed or oral contract where the subject matter of sale does not admit of physical possession and that such suits fall within Art. 120, Limitation Act. Their Lordships after discussing the law thus urged, concluded : "As observed by Mahajan J. there is no case which in very clear terms covers the precise point that has been raised in these proceedings and that being so, we think that the point arising in these proceedings should be settled by a larger Bench." They accordingly framed the question for reference to a F. B.

Weston, C.J. :- The question referred to the F. B. is in these words :

"Whether a suit to enforce a right of pre-emption in the case of a sale of an equity of redemption of urban immovable property when the pre-emptor preempts the immoveable property treating the sale of equity of redemption to the mtgee. in possession as being a sale of the property itself comes within sub-s. (3), S. 30 of the Punjab Pre-emption Act, 1913 ?"

2. The question indicates that in the suit from which the reference has arisen the pre-emptor has claimed not only to pre-empt the rights sold to the mtgee. in possession, but