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1922 Supreme(Lah) 30
Lahore High Court
Sir Shadi Lal, Fforder, JJ.
Ganwa & Anr. - Appellants
Versus
Joti Prasad & Ors. - Respondents
Decided On : 24-11-1922
JUDGMENT
1. This appeal arises out of an action for the pre-emption of a plot of agricultural land, and the sole question for determination is whether the claim was barred by limitation. Now the undisputed facts are as follows:
2. The sale was effected on the 11th February, 1918, but the property sold was at that time in possession of tenants who were not evicted until June 1918. It appears that a sale-deed was subsequently executed and registered in September 1918.
3. It is beyond dispute that Article 10 of the First Schedule to the Indian Limitation Act of 1908 governs the action, but the matter in controversy is whather the first part of the third column of that article or the second part applies to the claim. Now, it has been repeatedly held both by this Court as well as by the Allahabad High Court that property, which is in the possession of a tenant does not admit of physical possession within the m eaning of that article. This principle is firmly established, and it is now too late to question its correctness.
4. Whether the subject of the sale does or does not admit of physical possession must be determined with reference to the date of the sale, and it is immaterial whether the property afterwards became susceptible of physical possession. The date of the sale is the crucial date for deciding whether the first part of the article governs the action, and it is common ground that on that date the property in question was in the possession of tenants. We must, therefore, hold that the subject-matter of the sale did not admit of physical possession and that the second part of the article prescribes the rule of limitation applicable to this case.
5. The sale-deed was registered in September, 1918, and the action, which was brought within one year from that date, was not barred by the law of limitation. We accordingly accept the appeal and, reversing the judgment appealed against, we restore the order of the District Judge, remanding the case for re-decision. The vendees must pay the costs incurred by the plaintiff in this Court as well as in the Court of the learned Judge in Chambers.
