Moman Ram and another vs Hanuman and others

Pritam Singh Pattar, J.—This is a second appeal filed by Moman Ram and Ram Rattan plaintiff''s against the judgment dated 6th August. 1971 of the Additional District Judge, Hissar, by which he accepted the appeal of the defendants and set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs-appellants but left the parties to bear their own costs throughout.

The facts of this case are that the land in suit measuring 62 Kanals 1 Marla fully described in the plaint situated in the area of village Siswal, Tehsil and District Hissar belonged to Hanuman, Respondent No. 1, who sold the same to Ram Chander Udmi and Bal Ram, Respondents Nos. 2 to 4 for Rs. 23.000/- on the basis of registered sale deed dated 27th February, 1967. Mom an Ram and Ram Rattan filed suit for possession by pre-emption of this land on the allegations that they being co-sharers in this land with the vendor and that Ram Rattan plaintiff was the fathers brother of the vendor and Moman plaintiff was the father''s brother''s son of the vendor, their right of preemption was superior to that of the vendees, who were strangers. It was averred that sale took place for Rs. 15.000/- only and the remaining amount was mentioned In the sale deed to deter the pre-emptors.

The vendees contested this suit. They denied that the plaintiffs had a superior right of pre-emption. It was alleged that the sale took place for Rs. 23,000/- and the same was the market value of the land. It was pleaded that their father Onkar Singh was the real purchaser of this land and they were Benamidars for him and, therefore, he was a necessary party to the suit, that Onkar Singh was a tenant under the vendor of the suit land on the date of the sate and, therefore, the suit far pre-emption was not maintainable and it may be dismissed. They claimed expenses from the plaintiffs regarding the execution and registration of the sale deed. It was alleged that they made Improvements worth Rs. 3,000/- on this land and they were entitled to recover the tame from the plaintiffs in case their salt was decreed. The plaintiffs during the pendency of this case made an application to implead Onkar Singh as a defendant and this petition was allowed. Onkar Singh also raised similar objections in his written statement. It was pleaded that suit against him was barred by limitation and it should be dismissed. On these pleadings of the parties, the following issues were framed by the trial Court:--

(1) Whether the plaintiffs have a superior right of pre caption?

(2) Whether the sale price was fixed In good faith or paid ?

(3) If issue No. 2 is not proved, what is the market value ?

(4) Whether Oakar Singh is the real purchaser and the vendees are Benami and what is its effect ?

(5) Whether the suit land was in the tenancy of Onkar Singh, father of the vendees at the time of sale and the sale is not pre-emptive ?

(6) Whether the plaintiffs were consenting to the sale and are estopped from riling the suit ?

(7) Whether the vendees are entitled to expenses of the sale deed and its registration ?

(8) Whether the vendees have made improvements after the sale, if so, in what amount and to what effect?

(9) Whether the suit is time-barred ?

(9-A) Whether the suit is barred by time ?

(10) Relief.

Issue No. 1 was decided in favour of the plaintiffs. It was held that the sale took place for Rs. 23,000/- and issue No. 2 was decided accordingly and no finding was given on issue No. 3 It was held that Onkar Singh was the real purchaser and defendants Nos. 2 to 4, who were his minor sons were Benamidars far him and issue No. 4 was decided accordingly. It was held that Onkar Singh was not a tenant of this land under the vendor on the date of sale and so issue No. 5 was decided against the defendants. Issues ''Nos. 6 and 8 were also decided against the defendants. On issue No 7, it was held that the vendees were entitled to the expenses incurred by them on the execution and registration of the sale deed. Issues Nos. 9 and 9-A were also decided against the defendants. As a result, the plaintiffs were granted decree for possession by preemption of the land in suit against the vendees on payment of Rs. 24,622.50, which amount consisted of Rs. 23,000/- as the sale price and Rs. 1622 50 as the expenses incurred for the execution and registration of the sale deed Feeling aggrieved, Onkar Singh, defendant No. 5 and his three sons, vendees-defendants 2 to 4 filed an appeal against this decree in the Court of the District Judge which was heard by the Additional District Judge, Hissar. The decision of the trial Court on issues Nos. 2, 3, 4, 6. 7 and 8 was not contested before the Additional District Judge by the appellants. He affirmed the findings of the trial Court on issues No. 1 and 5. However, on issues Nos. 9 and 9-A, he held that the suit was barred by limitation because Onkar Singh defendant, who was the real purchaser was made a party to the suit after the expiry of the period of limitation. As a result, he accepted the appeal of the vendees defendants and set aside the decree of the trial Court and dismissed the suit of the plaintiffs. Feeling aggrieved, Moman Ram and Ram Rattan plaintiffs filed this sec and appeal in the High Court.

The only point for decision in this appeal is whether the suit for possession by pre-emption of land was barred by limitation. Exhibit D. 1 dated 27th February 1967 is the registered sale deed executed by Hanuman, Respondent No. 1 in favour of Ram Chander, Udmi and Bal Ram, defendants-respondents, who wera the minor sons of Onkar Singh defendant. The suit for possession by pre-emption was filed by the plaintiffs-appellants on 3rd January, 1968 and It was clearly within limitation. The vendees-defendants, respondents 2 to 4 in their written statement raised a plea that their father was the real vendee of this land and they were Benamidars for him and, therefore, he should he made a party to the suit. The plaintiffs had sued the minor vendees through their father Onkar Singh as their guardian ad litem and this written statement wherein this plea of Benami was taken, was also filed by Onkar Singh on 21st June, 1968 on behalf of his minor sons-vendees 2 to 4. The allegations in the written statement were controverted by the plaintiffs in their replication. The Issues in this case were framed by the trial Court on 12th August, 1968 and the case was adjourned to 12th November, 1968 for the evidence of the plaintiffs. The record shows that the plaintiff''s evidence In the affirmative was closed on February 5, 1969 and on the same day i.e. 5th February, 1949, the plaintiffs made an application under Order 6 rule 17, CPC and Order 1 rule 10, CPC to implead Onkar Singh, the father of the minor vendees as a party to the case. This application was accepted by order dated 7th February, 1969 and Onkar Singh was added as a defendant. Onkar Singh, defendant No. 5 in his written statement alleged that the suit was barred by limitation against him and the same should be dismissed. On his pleadings, Issue No. 9-A referred to above was framed regarding limitation.

The onus to prove issue No. 4 whether Onkar Singh was the real purchaser and the vendees were Benamidars for him was on the defendants. However, in his statement made on 5th February, 1969, Ram Rattan plaintiff stated that the suit land had been purchased by Onkar Singh Is the names of his sons. Therefore, in order to avoid further delay In the disposal of the case, the plaintiffs made an application on the sane day to implead Onkar Singh as a defendant as mentioned above. Admittedly, the suit against the vendees-defendants 2 to 4, who are the minor sons of Onkar Singh was filed within limitation. The lower appellate Court held that according to section 21 of the Limitation Act, the suit against Onkar Singh shall be deemed to have been instituted, when he was made a party to the suit by order dated 7th February, 1969 and, therefore, the suit was barred by limitation.

Mr. Nand Lal Dhingra, the learned counsel for the appellants contended that although Onkar Singh was the real purchaser of the land he was not a necessary party to the suit and, therefore, the fact that he was impleaded as a party after the limitation of one year would not show that the suit was barred by limitation. According to him, the plaintiffs had three years'' period of limitation as against Onkar Singh under article 113 of the Limitation Act, 1963. Articles 97 and 113 of the Limitation Act read as follows:--

Description of the suit to enforce a right of preemption whether the right Period of limitation One year Time from which period began to run. when the purchaser takes under the sale sought to be

is founded on law or general usage or on special contract. 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 whole or part of the property, when the instrument of sale is registered.

"Article 113

Any suit for which no period of limitation is pro-vided elsewhere in this Schedule. Three years. When the right to sue accrues."

Section 30 of the Punjab Pre-emption Act has no application to this case because the vendees took possession of the land in suit under the sale and also the sale was effected on the basis of a registered sale deed. The decision of the lower Courts on issue No.4 to the effect that Onkar Singh was the real purchaser and his minor sons, shown as vendees in the sale deed were Benamidars for him was not contested in this Court. In Meeyappa Chetty and another v. Maung Ba Bu, VIII IC 450. It was held that in India, when a piece of land is bought by a parent in the name of his son with his own money, the prima facie presumption is that it was bought Benami in the name of the son and if it is alleged to have been purchased for the advancement of the son, the burden of proving that fact lies on the party asserting it. As mentioned above, the vendees are the minor sons of Onkar Singh and the Latter got this sale deed executed from Respondent No. 1. There is as endorsement on the back of the sale deed, Exhibit D.1 that the whole of the sale price of Rs. 23,000/- was paid by Onkar Singh to the vendor before the Sub Registrar. The decision on issue No 4 is correct.

However, Onkar Singh, the real purchaser of this land was not a necessary party to the suit and the suit could proceed against the vendees defendants, respondents 2 to 4, whose names were mentioned in the sale deed. In Ragho Prasad Gupta Vs. Shri Krishna Poddar, , it was held as under:--

It is now well settled that in any litigation with a third party, the Benamidar can sufficiently represent the real owner. The decision in any proceeding brought by or against the Benamidar will bind the real owner though he is not joined as a party unless it is shown that the Benamidar could not or did not in fact represent the interest of the real owner in that proceeding.

It was further held in this ruling that the Benamidar did not cease to represent the real owner as soon as he disclosed his Benami status and pleaded that the real owner should be added as a party to the proceedings.

In Ch.Gur Narayan v. Sheolal Singh, AIR 1918 PC 140, it vas held as under:--

The system of acquiring and holding property and even of carrying on business in names other than those of the real owners, usually called the Benami system, is and has been a common practice in India. So long as a Benami transaction does not contravene the provision of the law, the Courts are bound to give it effect The Benamidar has no beneficial interest in the property or business that stands in his name; he represents, in fact, the real owner, and so for as their relative legal position is concerned he is a mere trustee for him. In such circumstances there is no reason why an action cannot be maintained in the name of the Benamidar in respect of the property although the beneficial owner is no party to it. The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the Benamidar, the parson beneficially entitled is fully affected by the rules of res judicata. It is open to the latter to apply to be joined in the action ; but whether he is made a party or not, a proceeding by or against his representative in its ultimate result Is fully binding on him.

In Sukhram Dubey Vs. Lal Partap Singh and Others, it was held:--

An intending pre-emptor is entitled to assume that the person named in the sale deed is the mal vendee and not a mere Benamidar for others, and no duty is cast by law on him to institute an enquiry as to whether the vendee named in the sale deed is a mere Benamidar or is the read purchaser. The omission of a plaintiff in a pre-emption suit to implead as defendant to that suit the real purchaser will not entail the dismissal of the suit on the ground of non joinder of necessary parties

To the same effect was the law laid down in AIR 1927 509 (Oudh)

The law laid down in these authorities aptly applies to this case. The legal position, therefore, is that the pre-emptor is entitled to assume that the person named in the sale deed is thereat vendee and not a Benamidar for ethers and suit for preemption is maintainable against him and the decision in the suit would be binding on the real owner even though he is not joined as party to the suit. It is well settled that in any litigation with a third person, the Banamidar can sufficiently represent the real owner and the real owner is not a necessary party to the suit. However, the preferential right of the pre-emptor is to be seen vis-a-vis the real owner and not that of the ostensible owner. In the instant ease the real owner Is no person other than the father of the minor vendees, who got the sale deed executed in their favour and paid the price. The plaintiffs-pre-emptors filed a suit for possession by pre-emption against the minor vendees through their father Onkar Singh as their guardian ad litem. Therefore, as held by the Privy Council in Ch. Gur Narayan and others (supra), it was open to Onkar Singh to apply to be joined as a party to the suit ; nonetheless whether he is made a party or not, the decision of the suit would be binding on him a view of the law laid down in these authorities, Onkar Singh was not a necessary party.

The learned counsel for the respondents relied on Ml'' Musammat Ram Sakhi Kuar Vs. Lachmi Narain Lal, but this ruling does tot help the respondents in any manner. It was held in this ruling that a suit against a Benamidar binds the Benamidar as much as the real purchaser even though the latter may not have been made a party to the suit. The preferntial right of the plaintiffs is to be seen vis-a-vis the real owner and not that of the ostensible owner. Similar view was taken by a Division Bench of this High Court in Jagdish Khattar v. Ram Kishen 1971 PLJ 242. It was observed in this ruling that it is open to the ostensible owner to plead that he is not the real owner and once that plea is raised, the real owner should be impleaded as a party so that the suit can be effectively adjudicated upon However, the rights of the real owner are to be seen vis-a-vis the preemptor and not those of the ostensible owner There is no dispute regarding the law Said down in these authorities. It was not laid down in these authorities that the real owner was a necessary party to the suit and that the suit could not proceed without impleading him. The Supreme Court laid down in Ragho Parsad Gupta''s csae (supra) that the real owner is not a necessary party and a decree obtained against a Benamidar is binding both on the real owner and the Benamidar.

Section 21(1) of the Limitation Act, 1963 lays down:--

Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:

Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.

In the The Ongole Byragi Mutt, Ongole and Others Vs. Inala Kannayya and Others, , it was held as under:--

The question whether the joinder of parties after the institution of a suit shall necessarily involve the bar of limitation if the prescribed period has expired, must depend upon the answer to the question whether the joinder was necessary to enable the court to award the relief in the suit as framed. The test to be applied is whether the suit was properly consumed on the date of the plaint so as to enable the court to adjudicate as between the parties impleaded. A suit is not said to be properly constituted unless all the necessary parties are impleaded. Pesrons who ought to be joined as parties are called necessary parties. They are persons necessary to the constitution of the suit i.e. persons in whose absence no effective decree at all can be passed. If necessary parties are not impleaded, the suit is had for non-joinder and the addition of those parties after the period of limitation will necessitate the dismissal of the suit. If, however, at the inception, the necessary parties are impleaded, the non-joinder of other persons who are not necessary or indispensable but whose joinder is only desirable to safeguard their rights and the rights of others and to prevent further litigation does not render the suit as improperly constituted and the joinder of those parties after the period of limitation will not necessitate the dismissal of the suit.

The law laid down in this ruling aptly applies to the present case. Law is firmly established that if all necessary parties are not impleaded, the suit is had for non-joinder and the addition of such parties after the period of limitation will necessitate the dismissal of the suit. If a person is not a necessary party to the suit but joined as a proper party to the suit, then the impleading of such a party after the period of limitation will not necessitate the dismissal of the suit. In the instant case, it has been held above that Onkar Singh defendant, who is the real purchaser, was not a necessary party to the suit and he was only a proper party to the suit. The suit could proceed even without his being impleaded as a defendant and the decree passed against the vendees defendants 2 to 4 would have been binding on him also. Since he was not a necessary party to the suit, therefore, the suit will not be dismissed as barred by limitation because he was added as a defendant after the expiry of the period of limitation. The decision of the lower appellate Court on this point is not correct and is reversed.

In Karam Dad and another v. Ali Muhammed 31 PR 1913 (FB), the facts were that the sale in respect of which plaintiffs claimed pre-emption was made on the 13th July, 1907, the vendee resold the property to one A.K. on the 31st January, 1908. The plaintiff''s suit was instituted within one year from the 13th July, 1907 but after the 31st January, 1908 and A.K. was not made a party to the suit till the 3rd February, 1909. On these facts, it was held as under:--

That as regards A.K. the suit was governed by articles 120 and not article 10 of the Limitation Act and that the starting point of limitation was the date of the resale by the first vendee-viz., the 31st January, 1908

It was further observed in the body of the judgment that article 10 of the Limitation Act, 1908 contemplates only the first sale and the first set of purchasers, and takes no cognizance of the second vendee to whom the subject of the first sale has been transferred subsequent, to the date of that sale. The right of pre-emption which is sought to be enforced by a pre-emptor by suit always arises in respect of particular sale which furnishes him with a definite cause of action and the only parties against whom he has that cause of action are the parties to that sale, which is sought to be impeached. Article 10 of the limitation Act would have no application to the claim of the plaintiffs pre-emptors against the donee or against the transferee by exchange, as the case may be from the original vendee because the real nature of the claim as against these persons being this that the pre-emptors in effect ceased to establish their right to ignore the gift or the exchange and to bind the transferee of either kind by the transfer eventually to be passed in their favour. To the same effect was the law laid down in Sri Thakurji Maharaj and Another Vs. Sujan Singh and Others, , by a Division Bench of the High Court.

The ratio of these rulings applies to the present case. The period of limitation against Onkar Singh for this suit is governed by article 113 of the Limitation Act and the plaintiffs had three years'' period of limitation against him. In the Instant case, the sale took place on 27th February, 1967. The plaintiffs appellants filed suit for pre-emption against the vendees mentioned in the sale deed, Exhibit D. 1 on 3rd January, 1968, which was within limitation. The written statement in this case was filed by the minors vendees defendants 2 to 4 through their guardian ad litem Onkar Singh their father on 21st June, 1968, wherein they took up the plea that the real purchaser was their father Onkar Singh and he should be impleaded as a party. This fact was contested by the plaintiffs and the necessary issues were framed on 12th August, 1968. As mentioned above, the evidence of the plaintiffs in the affirmative was closed on 5th February, 1969, and on the same day application for amendment of the plaint was made and it was granted on 7th February, 1969. It has been held above that Onkar Singh was not a necessary party to the suit. However, the plaintiffs could gel decree because of their superior right of pre-emption against the vendees and also against the real purchaser Onkar Singh.

For the re sons given above, it is held that the suit was not barred by limitation and the decision of the lower appellate Court on issues No. 9 and 9 A is wrong and is set aside It is held that the suit was within limitation. As a result the appeal is accepted, the decree of the Additional District Judge, Hissar dismissing the suit of the plaintiffs is set aside, and a decree for possession by pre-emption of the land in suit on payment of Rs. 24,622.50 is passed in favour of the plaintiffs-appellants against the defendants-respondents 2 to 5 It is directed that the plaintiffs shall deposit this amount in the trial Court on or before 18th August, 1973 if not already deposited ; failing which their suit shall stand dismissed. In view of the point of law involved, the parties are left to bear their own costs.