Karam Singh Bhagwan Singh and others vs Gurbux Singh Ganda Singh and others

This is a defendant-vendees'' appeal from the judgment and decree of a learned Subordinate Judge, First Class, Chandigarh, passing a decree for pre-emption in favour of the plaintiffs, who claim the right of pre-emption as sons of the vendor. The only question agitated on appeal relates to the limitation of the suit which is the subject-matter of issue No. 4.

The property in question was sold by means of a sale-deed, dated 6th June. 1958, registered on 16th February, 1959. The suit was instituted on 16th February, 1960, and the question canvassed is whether the suit is governed by Article 10 of the Indian Limitation Act, 1908. or section 30 of the Punjab Pre-emption Act (1 of 1913). The case, it may be pointed out, is governed by the old Act and not by the current Limitation Act. which came into force only in October, 1963. The Court below has relied on Article 10 on the ground that the properly sold did not admit of physical possession and. therefore, the terminus-a-quo would be the date of the registration of the instrument of sale. It is this conclusion which is assailed by the learned counsel for the appellants before us.

The sale-deed. Exhibit D-4, provides the sale of land measuring 214 bighas 3 biswas, the khatauni numbers of which are detailed therein along with some house property and faur. The appellants'' learned counsel has submitted that the sale was of a specific property and possession of the same was, as expressly mentioned in the sale-deed, delivered to the vendees on the very day of the execution of the deed. In the sale-deed, undoubtedly, there is a mention that the vendor was possessed of shamilat deh and bara, gohara, nadi, nala, loba, tapar, banjar. kallar, charand, burd, jhoond, pind pola with trees of every kind etc., which was being sold, but it is submitted that this does not show that the land sold did not admit of physical possession. This recital, it is emphasised, has been made as a matter of routine and there is no evidence that the vendor had in fact any share in the shamilat deh which was sold as per this sale-deed. Our attention has in this connection been drawn to that part of the sale-deed where it is staled that the land sold had been allotted, vide allotment order No. AB2/330/43, suggesting thereby that no shamilat land could have been allotted and that, therefore, on this ground also the mention of shamilat deh etc., in the sale-deed was not meant to refer to any rights in the shamilat deh as the subject-matter of the sale in question.

It may be pointed out that it is not the respondent''s case that the various other rights bracketed with the right in the shamilat deu in the sale-deed in fact existed as vesting in the vendor. This would also lend support to the submission that these various rights appear to have been entered in the sale-deed just by way of routine. Reference has also been made to the testimony of Charan Singh, D. W. 1. Halua Patwari, who has deposed about house No, 63 (half of which is also the subject-mailer of the sale) being a Muslim evacuee house, the actual possession of which was with Gurubax Singh vendor. So also according to this witness, was half the faur sold. Gurubax Singh had also taken the fard of the land from this witness. From his testimony, it is sought to be proved that half portion of this house and of the faur were capable of physical possession. Karam Singh, D. W. 4, one of the vendee-appellants had deposed that the property in dispute had been allotted to Gurubax Singh in lieu of the properly left by him in Pakistan. No evidence has been led on behalf of the plaintiffs suggesting that the property sold is not capable of physical possession. Mil Singh. P. W. 1. is the brother of the plaintiffs'' mother. According to him, Gurubax Singh had migrated from Pakistan and alter the sale, Karam Singh got the consolidation proceedings effected and bore the expenses. Karnail Singh, P. W. 2. has, however, deposed about the sale of the faur in question by Gurubax Singh in favour of Karam Singh and others; the vendees, according to this witness, have turned out Naranjan Singh from this property. This Naranjan Singh being the paternal uncle of the plaintiffs is stated to be prosecuting this litigation on behalf of his nephews : a fact which has also been slated by Mit Singh. P.W. 1 Naranjan Singh has also admitted this fact as P. W.

On this evidence. it is not at all possible to hold that the properly sold is not capable of physical possession. The only ground for holding the sold properly not to be capable of physical possession by the Court below is that share in shamilat deh has been sold. It is, however, not shown by the plaintiffs, who are the sons of the vendor himself, if any share in the shamilat deh was ever allotted to the vendor or vested in him in regard to the property sold. It is accordingly difficult for this Court to sustain the conclusion of the Court below on this point. Article 10, Indian Limitation Act, 1908. deals with the sale of two kinds of properties. Where the property sold admits of physical possession, then the terminus-a-quo is determined from the time the purchaser lakes physical possession under the sale sought to be impeached. In cases, however, the property sold does not admit of physical possession, then the terminus-a-quo is the date of the registration of the instrument of sale. These two periods of time have relevance apparently to the knowledge of the intending pre-emptor. It is true that law of pre-emption is to be construed on its plain language and equitable considerations are wholly out of place. I have only referred to this aspect for the purpose of pointing out that in the case in hand, the pre-emptors being the real sons of the vendor, there can hardly be any question, on the record of this case, of their not being aware of the sale in dispute and, therefore, there can be no question of anyfailure of substantial justice resulting from any technical view of Article 10. assuming the view is technical. Once this finding is recorded, the suit would indisputably be barred by time.

The result, therefore, is that this appeal prevails and allowing the same, we set aside the judgment and reverse the decree of the Court below and dismiss the plaintiffs'' suit.

Parties should bear their own costs both here and in the Court below.