Sukhnandan Singh and others vs Jamiat Singh and others

P.C. Pandit, J.—A short pedigree table given below will be helpful in understanding the relationship of the parties:

On 19th of September 1961, Kartar Singh, Bachan Singh and Sardara Singh, by a written document, Exhibt D 1, agreed to sell land measuring 193 Kanals and 15 Marlas situate in village Islamwala, district Ferozepore, to Sukhnandan Singh and others for Rs. 32550/- Rs. 7000/- were taken as earnest money and with regard to the balance of Rs. 25550/-, it was stipulated that it would be paid to the vendors before the Sub Registrar at the time of registration. On 6th of December, 1961, the sale deed regarding this land was executed and it was actually registered on 9th of March, 1962, on 6th of March, 1962 Jamiat Singh Gurdial Singh and Gurdev Singh, the three sons of the vendors, brought a suit for possession of the land by preemption on the ground that they, being the sons of the vendors, had a preferential right to purchase this land. It was alleged by them that the price mentioned in the sale deed was not actually paid and instead Rs. 18525/- was the sale price of the said land.

The suit was contested by the vendees on a number of grounds which would be apparent from the following issues framed in the case:

Was the sale price fixed in good faith or actually paid?

If not, what is the market value of the suit land ?

Are the vendors entitled to sale deed and registration expenses, if so how much?

Have the vendees made improvements, if so of what value and to what effect?

Have the plaintiffs waived their right of pre-emption?

Is the suit collusive, if so its effect?

Is the suit within time?

Relief.

The trial Judge came to the conclusion that since the sale price of Rs. 32550/- was actually paid by the vendees, therefore, the question of determining the market value of the land did not arise. He further found that the vendees had spent Rs. 4133/50 Paise towards registration and sale deed expenses and they were entitled to that amount, in case the plaintiffs suit was decreed. On issue No. 4, it was held that there was no evidence worth the name which showed the value of the improvements made by the vendees and as such they were not entitled to any sum under that head. The learned Judge discussed issues 5 and 6 together and came to the conclusion that the plaintiffs suit was collusive and it bad been filed at the instance of and in collusion with the vendors, The plaintiffs were thus estopped from exercising the right of pre-emption. On the question of limitation, his finding was that the limitation started from 6th of December, 1961 when the sale deed was executed and the suit having been filed on 6th of March, 1963 i.e. more than one year after that date, was clearly barred by time. On these findings, the suit was dismissed.

Aggrieved by this decision, the plaintiffs went in appeal before the learned District Judge, Ferozepore. He confirmed the findings of the trial court on issue No. 1 and further held that the market value of the land was also Rs. 32550/-. fie reversed the finding of the trial court on issue No. 6 and found that the vendees had failed to establish that the suit was collusive. The finding on issue No. 7 was also set aside by the learned District Judge and he held that the vendors were not in possession of the whole of the land sold at the time of sale and, therefore, the limitation for the institution of the pre-emption suit started running from the date of the registration of the sale deed i.e. 9th March 1961, under Article 10 of the Indian Limitation Act, 1908 That being so. the suit having been filed on 6th of March, 1963, was within limitation. Nothing was said by the learned Judge regarding the finding of the trial court on issue No. 3. On these findings, the appeal was accepted, the decision of the Subordinate Judge was set aside and the plaintiffs'' suit for possession was decreed on the payment of Rs. 32550/-.

Against the decree of the learned District Judge, the present second appeal has been filed by the vendees.

The first contention raised by the Learned Counsel for the appellants was that the finding of the learned District Judge that the plaintiffs suit was not collusive was erroneous in law. He submitted that even on the proved facts, it should have been held that the plaintiffs had filed the suit for the benefit of the vendors and at their instance. For this, he mentioned three circumstances. Firstly, it was said that it had been proved on the record that a copy of the consolidation proceedings register, Exhibit P. 2, had been obtained by one of the vendors one day before the institution of the suit. Secondly, the vendees had produced certain photographs which had been taken by them showing the presence of some of the vendors with the plaintiffs and their counsel in the court compound. Thirdly, it was said that the vendors and their sons were united in mess and estate.

With regard to the third circumstance, there is no clear and reliable evidence, and therefore, it cannot be taken into consideration. As regards the other two, even when taken together, they would not prove that the suit was collusive. Out of the plaintiffs, only Jamiat Singh had appeared as P.W. 1 and he had stated in cross-examination that he had separated from his father three years back, that it was incorrect that his lather was meeting the costs of the suit and that he was spending whatever little amount he earned on the litigation, with regard to his statement, the learned District. Judge observed: In the instant case, Jamiat Singh, plaintiff clearly stated to his desire to pre-empt the transaction with his own earnings and there is no rebuttal to his assertion. I have gone through his statement and I, however, find that his evidence is not very satisfactory, because he stated in cross examination that his father neither gave any property nor any money to him and the land was also not partitioned inspite of the fact that he had separated from him. He further said that he had got his own land in village Bannanwala and in the next breath, he deposed that he did not have any land in his name. Be that as it may, it was for the vendees to establish that the plaintiffs'' suit was collusive. On the evidence produced in the case, the learned District Judge came to the conclusion that they had failed to discharge the said onus and the suit had not been proved to be collusive. This is a finding of fact which has not been shown to be vitiated by any error of law and the same is, consequently, binding in second appeal. It was held by me in Ram Saran and others v. Kanwal Singh (1964) 66. P.L.R. 983 that unless the contrary was clearly established it was to be presumed that the plaintiff was suing for his own benefit. The onus lay very heavily on the vendees to establish that the suit had been instituted for the vendors'' benefit. The mere fact that the plaintiff was a minor and the son of one of the vendors did not show that the suit was for the benefit of the vendors.

It was next contended that the finding of the learned District Judge that part of the land sold was in possession of the tenants at the time of sale and its possession could, therefore, not be given to the vendees was incorrect. There is no merit in this contention, because it has not been shown that Exhibit X 4, which was a copy of the Khasra Girdwari relating to Rabi 1962 and Kharif 1962, had been misread by the learned District Judge. According to it field No. 24/21, out of the suit land, was recorded under the cultivation of Bahadur Singh s/o Udham Singh, tenant at will, during Rabi 1962. This again is a finding of fact, based on evidence which has neither been misread nor misconstrued, It has, therefore, to be held that the learned District Judge was right in remarking that a part of the suit land was in possession of the tenant and, therefore, its possession could not be delivered to the vendees at the time of sale. With this finding is connected the third contention of the counsel for the appellant that the learned District Judge had erred in law in holding that Article 10 of the Indian Limitation Act, 1908, applied to the instant case. According to the Learned Counsel, Article 19 would not be applicable to a case where possession of a part of the land sold was given to the vendees and the possession of the remaining part could not be given, because it was in the occupation of the tenants. To such a situation, according to the Learned Counsel, section 30 of the Punjab Pre-emption Act applied and the limitation of one year would start from the date on which the vendees took physical possession of a part of the land sold. That being so, according to him, the suit having been filed more than one year after the date of execution of the sale deed (6th December, 1961) on which date possession of a part of the land sold had been given to the vendees, was barred by limitation.

Section 30 of the Punjab Pre-emption Act starts by saying "in any case not provided for by Article 10 of the Second Schedule of the Indian Limitation Act, 1908, the period of limitation in a suit to enforce aright of pre-emption under the provisions of this Act shall, notwithstanding anything in article 120 of the said schedule be one year". That being so, before this section is made applicable, one has to find out whether a particular case is covered by Article, 10 of the Limitation Act or not. The said Article reads:

Description of suit

Period of Limitation

Time from which period begins to run.

To enforce a light of pre eruption, 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.

This Article contemplates two types of cases. Firstly, when the purchaser takes under the sale sought to be pre empted physical possession of the whole of the property sold. If that be so, then the limitation of one year is, counted from the date when physical possession of the whole of the property sold is taken. Secondly, when the subject of the sale did not admit of physical possession and the sale deed was registered then the limitation of one year would start from the date of the registration of the said sale deed. If a particular case is covered by any of the two situations, then Article 10 of the Limitation Act would be attracted. It is only when the case is not provided for by Article 10 that resort has to be taken to section 30 of the Punjab Pre-emption Act.

While dealing with Article 10, a Division Bench of the Punjab Chief Court in Maluk Singh v Muhammad 65 P.R. 1889, observed :

To take the last point first, it appears to me to be sufficiently answered by the words of Article 10, which distinctly provide that possession, when it is to be taken as the starting point for limitation, must be a possession of the whole property. It is clearly this whole property which is "the subject matter of the sale", referred to in the second clause of the article, and I think that a correct paraphrase of the whole article would be "unless the whole property sold, admits of physical possession, limitation begins to run from the date of registration.

This judgment was followed by Scott-Smith, J. in Lehna Singh v. Bhagat Singh 68. P.R. 1918, where it was held:

Section 30, however, only comes into operation in cases not provided for by article 10 of the second schedule of the Indian Limitation Act. Article 10 lays down that where the subject of the sale does not admit of physical possession, the limitation for a suit is one year from the date of the registration of the deed of sale, when any part of the property sold does not admit of physical possession, then it is clear that the subject matter of the sale as a whole does not admit of physical possession and article 10 clearly applies in accordance with the ruling above quoted (65 PR 1889).

A Division Bench of the Nagpur High Court consisting of Muddholkar and Naik JJ., in AIR 1956 243 (Nagpur) held-

Article 10 is not exhaustive of all cases of pre-emption. It would only apply if the case squarely falls within it.

In applying Article 10 the matter must not only fall under the first column but also under third, and if the third column cannot be attracted Article 10 goes, however, much the right may be the kind of right which the first column contemplates. Further, there is no scope for piece meal application of column 3. Either the property sold, the whole of it, admits of physical possession or it does not. If it does, the first part applies. If it does not and there is a registered document the second part would apply. But, if the property neither completely falls under the first part nor under the second, the case is taken out of the category of Article 10.

In the present case, it has been found by the learned District Judge that physical possession of a part of the property sold could not be delivered to the vendees, because it was in possession of the tenant at the time of sale. The sale deed having been registered, I am of the view that the learned District Judge was right in a plying Article 10 of the Indian Limitation Act, 1908, to the present case. The suit was thus rightly held to be within limitation.

Lastly, it was submitted that, in any case the vendees were entitled to the amount of Rs. 4,133/50 paise, which they had spent on stamp and registration, as found by the trial Court There is merit in this contention. As already mentioned above, no finding was given by the learned District Judge on this point. It appears that the plaintiffs had rot challenged the finding of the trial Court on this point before the lower appellate court. The Learned Counsel for the pre emptors had no serious objection to the payment of this amount to the vendees.

In view of what I have said above, I would partly accept this appeal and enhance the amount of Rs. 32,550/- held by the learned District Judge to be payable by the pre-emptors to the vendees, by an additional sum of Rs. 4,133/50 paise. If the entire amount is not deposited in the trial Court on or before the 4th of December, 1967 the plaintiffs'' suit shall stand dismissed with costs throughout.

In the circumstances of the case, however, I leave the parties to bear their own costs throughout.