Sukhvinder Singh and others vs Mohar Singh and another

S.D. Bajaj, J.—Raghbir Singh, Para Singh and Kapoor Singh vendors had undivided 1410/3189th share in 159 Kanals 9 Marias of land situated in village Sigun Majra, tehsil Guhla district Kurukshetra, Haryana State. They sold it to the appellants for Rs. 1,40,000/- vide sale deed executed on May 22, 1980 which was got registered on June 4, 1980. Possession of specific Khasra numbers set out in para 2 of the plaint is alleged to have been made over by the vendors to the vendees at the time of the execution of the sale deed on May 22, 1980.

Civil suit No. 557, filed on June 4, 1981 for obtaining possession of the land sold by pre-emption by the co-sharers of the venders for remaining undivided (sic)/3189th share was dismissed by the learned trial court, as barred by limitation on October 26, 1983. In civil appeal No. 53/13 of 1985 decided on May 27, 1985 learned lower Appellate Court held the suit to have been filed within time and deed it. Feeling aggrieved, the vendees have come upto this Court in regular second appeal.

I have heard Shri Des Kaj Mahajan, Advocate, for the vendee-appellants and have carefully gone through the record of proceedings before the learned courts below. None, however, appeared for the respondents.

The sole point arising for determination is whether the prescribed period of one year would start running from May 22, 1980-the date of delivery of possession of specific Khasra numbers detailed in para 2 of the plaint or from June 4, 1980-the date of the registration of the sale. Relevant Article 97 of the Limitation Act reads:-

97.

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

One year

When the purchase takes under the sale sought to be 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.

Everyone of the joint owners is presumed in Jaw to be in possession of every inch of the joint land by delivering possession of the lands comprised in specific Khasra numbers, set out in para 2 of the plaint, the vendors admittedly joint owners of 1410/3189th share of the land in suit, cannot be said to have delivered actual physical possession of the property sold to the vendees because the nature of the property sold was incapable of being the subject-matter of transfer of physical possession.

The first thing to be considered reapplying this article is, to see whether the subject of sale admits of physical possession at the date of the sale. If it does, then limitation will start from the time when the purchaser takes such physical possession. Under the old article, where the subject of the sale admitted of physical possession, limitation for a suit for pre-emption did not begin to run until physical possession was taken of the whole of the property sold. Where part of the property sold was not capable of physical possession, it could not be said that the subject of the sale admitted of physical possession, and consequently limitation ran under the second part of the third column, from the date of the registration of the sale deed. It follows that the following subjects of sale do not admit of physical possession:-

(a) An undivided share in property.

(b) Property in the possession of unsufructuary mortgagee, that is unequity of redemption in property that has been mortgaged with possession.

(c) Property that has been leased. In such cases the subject of sale is a reversion in a lease.

The words "admit of physical possession" have no reference to the ability or inability in fact of the vendor to place the vendee in actual possession of the property sold, but to the nature of the property sold. When an undivided share in joint property was sold and the sale was sought to be pre-empted by a co-sharer and 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, the suit for pre-emption would be governed by the second part of Art. 10 of (sic) Act and the period of limitation would commence from the date of registration of sale deed.

As held in Sukhnandan Singh and others v. Jamiat Singh (1968) 70 P.L.R. 253, which decision was affirmed by the Supreme Court in Civil Appeal No. 1729 of 1967 decided on February 18, 1978, AIR 1971 SC 1158 Sukhnandan Singh, etc. Vs. Jamiat Singh and Others, the period of limitation would start running in this case from the date of the registration of the sale deed viz. June 4, 1980 and the suit filed on June 4, 1981 was therefore, within time and learned lower Appellate Court was thus fully justified in reversing the finding of the learned trial court on the point of limitation and its finding in this regard is affirmed.

In result the appeal fails and is dismissed with costs.