Ramchand Prabh Dial vs Tulsi Ram Gupala and another

Shamsher Bahadur, J.—This is a vendee''s appeal from the Judgment of the lower appellate Court which set aside the decree of the trial Judge dismissing the suit of the plaintiff-pre-emptor.

The suit property consisting of 65 kanals and 1 marla of land was sold by Labhu on 31st October, 1953. This was an oral transaction reported to the Patwari by the vendor on the date of sale. According to the roznamcha (Exhibit D.I) of 31st October, 1953, a statement was made by Labhu that he had sold two of his khatas, No. 5985 (4 kanals and 12 marlas) and No. 6108 (9 marlas) without any share in the shamilat to Ram Chand to whom possession had been delivered that day. The sale-price of Rs. 325/- was stated to have been received by the vendor that day.

The mutation, however, was made by the Tehsildar on 18th of June, 1954. In the mutation (Exhibit D-2), the statement which had been made by Labhu to the Patwari on 31st October, 1953, was repeated verbatim and it was stated that in the jalsa-i-am the mutation was sanctioned on 18th of June, 1954. The only other document (Ex. D-3) on which reliance has been placed by the Courts below is khasra girdawari relating to the Khariff and Rabi crops of 1953 and 1954. In this entry, Labhu is shown to be in cultivating possession of the land for the Kharif crop of 1953 while the vendee''s name is mentioned in respect of the Rabi crop of 1954.

The plaintiff Tulsi Ram as a collateral of Labhu brought a suit for pre-emption on 14th of June, 1953. The right of the pre-emptor to bring the suit is not denied. The suit was resisted on the sole ground that it was not brought within the time prescribed by Article 10 of the Indian Limitation Act. Article 10 of the Limitation Act is as under:-

Description of suit

Period of limitation

Time from which period begins to run

To enforee a right of pre-emption, whether the right is founded on law, or general usage, or on special contract.

One year

When the purchaser takes under the sale, sought to be impeached, physical possession of the whole of the property sold or, where the subject of the sale does not admit of physical possession, when the instrument of sale is registered.

If the date of the mutation is to be taken as a terminus quo it cannot be disputed that the suit is within time. On the other hand, if the land is capable of physical possession and possession of the whole of the land sold is taken by the vendee, the time would begin to run from that date.

The trial Judge found that the land was capable of physical possession and the vendee had taken possession of it on 31st of October, 1953. Reliance was placed by the trial Judge on the three documents to which reference has been made.

That the land is capable of physical possession is not disputed. All that has to be seen is whether the possession had actually been taken by the vendee on the 31st October, 1953, as claimed by the defendant and found so by the trial Judge. The lower appellate Court took the view that recitals in the roznamcha and repeated in the mutation do not establish that possession had actually been taken by the vendee.

The crucial fact on which the finding of the lower appellate Court is based is that the vendee Ram Chand never appeared in the witness-box. It is stated in evidence that Ram Chand is serving in the army and was not in a position to cultivate the land or appear as a witness in Court. It is claimed by the vendee that the land was cultivated by Raghu, who is a brother-in-law of Ram Chand. Raghu again has not come in the witness-box to assert that he had taken possession of the land which had been orally sold to Ram Chand on 31st October, 1953. No explanation has been given for the defendant''s failure to produce Raghu as a witness. It has been asserted by Mr. Balmokand, the learned counsel for the respondent, that Raghu is the collateral of the vendor and no notice could be taken of a change of possession even assuming that Raghu was found in possession.

As stated by Le-Rossignal, J., in AIR 1925 165 (Lahore) the law of pre-emption requires strictly physical possession and a mere reporting to the Patwari that the vendor has relinquished possession and that the vendee has taken the same up are not a sufficient compliance of the requirements of the Pre-emption Act. The reason, according to Le-Rossignal, J., is that

physical possession would be a notice to all would be pre-emptors of the fact that the enjoyment and possession of the land has changed hands and puts them to enquiry, because physical possession is a thing which can be seen by anybody that wants to do so.

Admittedly, Ram Chand could not have been seen in cultivating possession as he was serving in the army. We are, thus, left with the position that the recital which is manifestly erroneous in the roznamcha that the vendee had actually taken possession should be regarded as sufficient notice to the public. In my opinion, the finding of the lower appellate Court that possession had not actually passed on 31st October, 1953, is a correct appraisal of the evidence in accordance with principle laid down by Le-Rossignol, J., in AIR 1925 165 (Lahore)

There is one other matter to which reference is essential. Labhu vendor stated as P.W. 4 that he actually received a sum of Rs. 125/- before the Tehsildar and that he had given the possession after he had received this amount. The matter was not left in any doubt by Labhu and he definitely stated that the transaction was completed only at the time of mutation. The statement of Labhu read with the documentary evidence and the failure of the vendee to have come in the witness-box are sufficient to uphold the finding reached by the lower appellate Court. As has been recently stated by Mr. Justice Gajendragadkar, speaking for their Lordships of the Supreme Court, in Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, it is not for the High Court in second appeal to examine the sufficiency or adequacy of evidence on which the finding of the lower appellate Court is based.

I would accordingly uphold the finding of the lower appellate Court and dismiss this appeal with costs.