Ajit Singh vs Dhara Singh

P.C. Pandit, J.—On 30th of April, 1965, Sawal Singh, by a deed which was registered on 12th of May, 1965, sold land measuring 46 Kanals 16 Marlas to Ajit Singh for Rs. 5,500/-. On 2nd of May, 1866, Dhara Singh, brought a suit for possession of this land by pre-emption on the ground that he was the vendor''s brother''s son and thus had a superior right to purchase the said land. He also alleged that the price mentioned in the sale deed was neither paid nor fixed in good faith. As a matter of fact, the vendee had given only Rs. 3,500/- for this land.

The suit was contested by the vendee on a number of grounds. It was said, inter alia, that the plaintiff was not the son of the vendor''s brother, that Rs. 5,500/- had been actually paid, that the vendee was a tenant of the vendor on the date of sale and as such the suit for preemption was not maintainable, that the vendee was also entitled to Rs. 362/25 for expenses of sale and registration and Rs. 400/- towards the improvements made by him in the said land and that the suit was barred by limitation.

On the pleadings of the parties, a number of issues had been framed. All of them had been decided in favour of the pre-emptor by the courts below, but with this difference that the trial Judge allowed Rs. 330/- towards the cost of stamps purchased for the sale deed, thus disallowing Rs. 32/25, the registration expenses, out of Rs. 362/25, claimed by the vendee, whereas the lower appellate court granted the entire amount of Rs. 362/25 for this purpose and decreed the plaintiff''s suit on payment of Rs. 3,862/25. The vendee has come here in second appeal.

The only question argued by the Learned Counsel for the appellant was regarding limitation and it was contended that the finding of the courts below on that point was erroneous in law. While holding that the plaintiff''s suit was within limitation, the trial court had observed that the Khasra Girdawaris showed that one Charan Singh was in possession of the suit-land at the time of sale and consequently, it Was not capable of physical possession. It had not been shown as to when the defendant vendee took possession of the land. So the limitation under Article 97 of the Limitation Act, 1963 would be one year from the date when the sale deed was registered. As the deed was registered on 12th of May, 1965, therefore, the present suit having been filed on 2nd of May, 1966 was well within time. The learned: Additional District Judge, while dealing with this matter, agreed with the trial court that the land in dispute being in possession of Charan Singh at the time of sale, was not capable of physical possession According to him, the sale deed was registered on 3rd of May, 1965 and since the suit had been filed on 2nd of May, 1966 i.e. within one year from 3rd of May, 1965, it was within limitation. It may be mentioned that 3rd of May, 1965 was the date when the sale deed was actually presented for registration, but it was copied in the register of the Registration Department on 12th of May, 1965, which would indisputably be the date of registration of the document.

Article 97 of the Limitation Act, 1963, gives the limitation as one year and the starting point of limitation is mentioned as ''when the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold, or, where the subject matter of the sale does not admit of physical possession of the property, when the instrument of sale is registered. The issue framed on this point was No. 6, namely, whether the suit was barred by time. In other words, the onus had been placed on the defendant-vendee to show that the pre-emptor''s suit had been filed beyond limitation. In the plaint, in paragraph 1, it had been mentioned that the sale deed had been executed on 30th of April, 1965 but was registered on 12th of May. 1965 and possession was delivered to the vendee, though the date on which such possession was given was not stated in that paragraph. In paragraph 6, however, it was mentioned that the cause of action arose on i2th of May, 1965 when the sale deed was registered and possession given to the vendee-defendant. In the written statement filed on behalf of the vendee, the contents of paragraph 6 were denied and in the additional pleas, it was said that the vendee was a tenant of the vendor, on the date of sale i.e. 30th April, 1965, of the land in dispute and had been in its possession as such since Kharif 1962 and, consequently, the sale in dispute was not pre-emptible. It was also said that as the sale deed was executed on 30th of April, 1965, therefore if the vendee was not in possession as a tenant, then the possession would be considered to have been delivered to him on that date and he was actually in possession of the suit land on 30th of April, 1965 and as such the suit having been filed on 2nd of May, 1966, was beyond limitation. The courts below have negatived the contention of the vendee that he was a tenant of the vendor. It has been held that it was Charan Singh who was the tenant. It may be stated that efforts had been made by the vendee to get the Khasra Girdawaris, which were in favour of Charan Singh, corrected so as to show himself as in cultivation of the land as the tenant of the vendor. The courts below, however, have rejected that evidence on the ground that those efforts had been made after the institution of the suit and, therefore, would not, in any way, affect the decision. Thus, it has to be held that Charan Singh was in possession of the land in dispute as a tenant. In case, Charan Singh was in possession at the time of the sale, i.e. on 30th of April, 1965, then the suit land was not capable of physical possession by the vendee on that date. Charan Singh had appeared as P.W. 4 and stated that he had cultivated the land in suit for four years and had abandoned its possession in Jeth about 18 months back. He gave this statement on 26th of October, 1966. It was suggested by the Learned Counsel for the appellant that from his evidence the date, when he gave up the possession, would be counted as 26th of April, 1965. From that he concluded that after that date, the vendee came into possession and he was there on 30th. of April, 1965. But that is not correct. Charan Singh had specifically mentioned that he gave up the possession in the month of Jeth, which admittedly would be from about 14th of May to 14th of June. This would fit in with the case of the plaintiff in paragraph 6 of the plaint where he had mentioned that the cause of action arose on 12th of May, 1965 when the sale deed was registered and possession given to the defendant-vendee. It is clear, therefore, that the land was not capable of physical possession on 30th of April, 1965 when the sale deed was actually executed, because at that time, Charan Singh was in its possession. Under Article 97, in such a case, the limitation would start from the date of the registration of the instrument and in this case that date was 12th of May, 1965. The suit having been filed on 2nd of May, 1966, was therefore, well within time.

The result is that this appeal fails and is dismissed. In the circumstances of the case, however, the parties will bear their own costs throughout.