Jai Karan vs Babu and Others

R.S. Pathak, C.J.—This is a Plaintiff''s second appeal arising out of a suit for pre-emption.

Chhanga Ram sold the land in dispute to Udho by a sale deed dated October 23, 1961, for a sum of Rs. 400/-. The sale deed was registered on October 24, 1961. The Appellant claimed that he enjoyed a superior right of pre-emption by virtue of being a co-sharer and tenant in the land. On July 2, 1966, he filed the suit, out of which the present appeal arises, for pre-emption on payment of Rs. 50/- which, he alleged, was the price actually paid. As Udho had died meanwhile, the suit was filed against this three sons and the widow of a deceased son. He claimed extension of limitation u/s 17 of the Limitation Act on the plea that the Respondents had practised fraud on him and thereby kept him from knowledge of his right to sue. The suit was resisted on the ground, inter alia, that it was barred by time. The trial court framed an issue on the plea of limitation and on April 29, 1968, it dismissed the suit as barred by time. An appeal filed by the Appellant against the trial court decree was dismissed on August 29, 1969, by the learned Additional District Judge, Kangra Division at Dharamsala. The present second appeal was then filed by the Appellant, and on December 17, 1970, a learned single Judge of the Himachal Bench of the Delhi High Court made an order remitting three issues to the learned Additional District Judge for his findings thereon. The three issues are:

(a) When had the purchaser taken physical possession of the property in suit under the impugned sale?

(b) Whether the property sold was capable of physical possession or not, and if it was not a property of which physical possession could be taken in consequence of the sale deed then the finding should be returned as to whether climitation was to start from the dete of registration or not?

(c) If the conclusion could be reached that Article 10 of Schedule II of the Limitation Act, 1908, had no application then whether any mutation had taken place in consequence of the alleged sale and if no mutation had taken place then on what date had the vendee taken possession of a part or the whole of the property demised through the sale?

By an order dated May 9, 1975, the learned District Judge returned his findings on the aforesaid issues. On the first issue he has found that the vendee Udho had been in possession since long as an occupancy tenant, that the land in suit measuring one kanal two marlas was a part of a larger holding jointly owned along with others, that no specific area had been shown either in the sale deed or in the revenue record entries as having been sold to Udho, and no mutation had been incorporated in the revenue record showing the area sold under the sale, that while the possession of Udho could be construed as symbolic joint possession only it could not be said that he had taken physical possession of the property under the sale inasmuch as actual possession to Udho could proceed only on partition of the joint holding. On the second issue the learned District Judge observed that as the sale was in respect of a part of the joint share represented by khasra numbers, it was not capable of physical possession and therefore it was Article 10 of Schedule II of the Limitation Act, and not Section 30 of the Punjab Pre-emption Act, which was attracted. On the third issue the learned District Judge held that even if it be held that Article 10 of Schedule II of the Limitation Act had no application no mutation had taken place in consequence of the sale and the vendee had not taken possession of part or whole of the property sold under the sale.

On the aforesaid facts and findings the question is whether the suit is barred by time.

Article 10 of Schedule II of the Indian Limitation Act, 1908 reads:

To enforce a One year When the purchaser takes, right of pre- under the sale sought to emption, whe- be impeached, physical ther the right possession of the whole is founded on of the proerty sold, or, law, or general where the subject of the usage, or on sale does not admit of special contract. physical possession when the instrument of sale is registered.

The corresponding Article 97 of Schedule II of the Limitation Act, 1963, reads:

To enforce a One year When the purchaser takes, right of pre- under the sale sought to emption whe- be impeached, physical ther the right possession of the whole is founded on or part of the property law or general sold, or, where the sub- usage or on ject matter of the sale does special con- not admit of physical tract. possession of the whole or part of the property, when the instrument of sale is registered.

As will be noticed, the only difference between Article 10 of Schedule II of the Indian Limitation Act, 1908, and Article 97 of Schedule II of the Limitation Act, 1963, is that in the latter case the provision speaks also of physical possession of part of the property sold, while the former made no such reference. The learned Additional District Judge has held that the property sold was incapable of being the subject of a transfer of physical possession inasmuch as a share only of the entire holding, and not a demarcated area, had been sold. Consequently, he held that Article 10 of Schedule II of the Indian Limitation Act, 1908, applied and limitation commenced from the date of registration of the instrument of sale, that is, October 24, 1961. The suit was therefore held barred by time.

Learned Counsel for the Appellant challenges the finding of the learned District Judge that the property was incapable of admitting physical possession and therefore the relevant date for applying Article 10 was the date of registration of the sale deed. Now, it has been held in a series of cases that the purpose of Article 10 is to provide limitation from the date on which notice can be said to have been given of the transaction of sale. Reference may be made to Tola Ram v. Lorinda Ram AIR 1922 Lah. 210, Dharam Singh v. Kirpal Singh AIR 1923 Lah. 31, Dhanna v. Lekh Ram AIR 1924 Lah. 695, Thakur Singh v. Karam Singh AIR 1925 Lah. 165 and Sheo Ram v. Indraj and Ors. AIR 1925 Lah. 152. All those cases have been considered in Bai Chander Mani v. Bhagirath AIR 1961 Pun. 296. Under the first part of Article 10, notice would be deemed to have been given on the date when physical possession, of the property was taken under the sale. Under the second part of the provision, physical possession is deemed to have been taken when the instrument of sale was registered. The sale deed dated October 23, 1961, executed by Chhanga Ram in favour of Udho recites that one kanal and two marlas of land included in the share belonging to the vendor was sold to the vendee. As long ago as Wasakha Singh v. Mohammad Hussain AIR 1942 Lah. 118, it was held by the Lahore High Court that the sale of an undivided share of a joint holding could not admit of physical possession and therefore the claim to pre-empt a sale must be governed by the second part of Article 10, that is to say, the terminus a quo would be the date of registration of the instrument of sale. In such a case, the question of the transfer of possession could not arise and had to be ignored. That view was endorsed by the Punjab and Haryana High Court in Jagat Singh v. Gurminder Singh 1970 Current Law Journal 659, where a number of cases have been cited deciding that if the property sold was an undivided share in a holding it was not capable of physical possession. The view was re-affirmed by that court in Kashmir Singh v. Mehar Chand 1971 Current Law Journal 169 and reliance was placed by the learned Judges on the opinion of the Privy Council in Batul Begum v. Mansur Ali Khan ILR 24 All. 17. It is apparent that the property sold under the sale deed of October 23, 1961, could not, on the date of the sale, be described as property capable of admitting physical possession., That being so, it is the second part of Article 10 which is attracted. The relevant date from which limitation must be computed is the date of registration of the sale deed. Inasmuch as the sale deed was registered on October 24, 1961, and the suit was filed on July 2, 1966, the suit is clearly barred by time. The courts below are right in dismissing it on that ground.

It may be mentioned that the finding of the learned Additional District Judge, who disposed of the appeal in the first-instance, negativing the Appellant''s case that the Respondents had been guilty of fraud is a finding of fact and has not been assailed by the Appellant before me.

In the circumstances, the appeal fails and is dismissed. There is no order as to costs.