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Kashiram Kadtu Burkule Vs. Rajaram Daulat Korde - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 806 of 1951
Judge
Reported in(1957)59BOMLR1073
AppellantKashiram Kadtu Burkule
RespondentRajaram Daulat Korde
DispositionAppeal dismissed
Excerpt:
indian limitation act (ix of 1908), article 10-pre-emption-limitation-property sold admitting of physical possession-purchaser unable to obtain possession owing to obstruction of third party-whether this amounts to making property not admitting of physical possession-expression 'does not admit of physical possession' whether refers to inability of vendor to deliver possession to purchaser.;article 10 of the indian limitation act, 1908, provides two alternative points of time for commencement of the period of limitation. if the subject of sale admits of physical possession, then the period of limitation commences to run from the date on which physical possession of the whole of the property sold is taken by the purchaser. if the subject of sale does not admit of physical possession then..........of limitation commences to run 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. it may be observedthat; the learned judges of the courts below negatived the contention raised by the defendant that he had obtained physical possession of the field in 1941 and thereafter he had been dispossessed by baliramsa. they have held that at the date of the sale-deed baliramsa was in possession as a trespasser, and it was only after the decree was passed by the high court in second appeal, that the plaintiff obtained possession in enforcement of the decree. admittedly on the finding of the courts below on the.....
Judgment:

J.C. Shah, J.

1. This second appeal raises a question of limitation. One Kashiram filed Civil Suit No. 96-A of 1941 in the Court of the Second Subordinate Judge, Class II, Khamgaon, to enforce a mortgage executed by one Saburabai in respect of fields S. Nos. 2/2 and 1/1 Mouza Pimpri Korde, taluq Khamgaon. The suit was filed against the heirs and legal representatives of Saburabai, Saburabai having died before the institution of the suit. A preliminary mortgage decree was passed in 'the suit. Thereafter there was a compromise between Kashiram and the mortgagors. Pursuant to the terms of the compromise the mortgagors executed a sale deed of the mortgaged land in favour of Kashiram on June 28, 1941, for a consideration of Rs. 799. Kashiram being unable to obtain possession of the land, he filed Civil Suit No. 64-A of 1942 against one Baliramsa for possession of the land. The suit was dis-missed by the trial Court, but it was decreed in appeal by the Nagpur High Court on October 22, 1948. In execution of that decree against Baliramsa, Kashiram obtained possession of the field S.No. 2/2 on November 12,1948. The plaintiff Rajaram Daulat filed on Noyembe 8,1949, Civil Suit No. 22I-A of 1949 in the Court of the Additional Civil Judge, Cass II, Khamgaon, against Kashiram for pre-emption and for possession of the field S. No. 2/2.

2. It was the plaintiff's case that the defendant Kashiram had taken actual possession of the field on November 12,1948, in execution of the High Court decree and the suit filed within oneyear from that date was within limitation. The defendant contended that the suit was barred by limitation. He submitted that he had obtained actual possession of the land in dispute on June 28, 1941, and that he had, thereafter, been dispossessed by Baliramsa.

3. The learned trial Judge held that the suit was not barred by the law of limitation and that the market value of the field in suit on the date of the sale was Rs. 300. The learned Judge accordingly decreed the plaintiff's suit. Against that decree, an appeal was preferred to the District Court at Khamgaon. The learned Extra Additional District Judge was of the view that the fair price of the field was Rs. 600 at the date of the sale and that the plaintiff's suit was not barred by the law of limitation. The learned appellate Judge modified the decree passed by the trial Court by substituting Rs. 600 for Rs. 300 as the pre-emption price-in the decree of the trial Court. Against that decree, this second appeal has been preferred by the defendant.

4. In support of the appeal it is urged that the suit for pre-emption filed by the plaintiff was barred by the law of limitation. Article 10 of the Limitation Act provides a period of one year to enforce a right of pre-emption, whether the right is founded on law, general usage, or special contract and the period of limitation commences to run 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. It may be observedthat; the learned Judges of the Courts below negatived the contention raised by the defendant that he had obtained physical possession of the field in 1941 and thereafter he had been dispossessed by Baliramsa. They have held that at the date of the sale-deed Baliramsa was in possession as a trespasser, and it was only after the decree was passed by the High Court in second appeal, that the plaintiff obtained possession in enforcement of the decree. Admittedly on the finding of the Courts below on the date of the sale-deed in favour of the defendant the land in dispute was in the occupation though unlawfully of Baliramsa. By the sale-deed the vendors Punjabai and Sakharam purported to put Kashiram in possession of the land. It was recited in the sale-deed (exh. P-3) :

We have this day sold the land described below without encumbrances and possession of the land sold is delivered to you. It was also recited:-Hence, we have delivered possession of the land sold to you in order to free ourselves from our debt.

5. The question which falls to be determined in this second appeal is whether the subject of sale did not admit of physical' possession. If it did not admit of physical possession, the period of limitation commenced to run from the date when the instrument was registered: if it did admit of physical possession, the period of limitation commenced to run from the date when physical possession of the whole of the property sold was taken by the purchaser. It was urged by the defendant that the land in dispute being in the unlawful occupation of Baliramsa, the subject of the sale did not admit of physical possession, and therefore, the period of limitation commenced to run from June 28, 1941, and a suit filed on November 8, 1949, was barred by the law of limitation. I am unable to accept that contention. Article 10 of the Limitation Act provides two alternative points of time for commencement of the period of limitation. If the subject of sale admits of physical possession, then the period of limitation commences to run from the date on which physical possession of the whole of the property sold is taken by the purchaser. If the subject of sale does not admit of physical possession, then the period of limitation commences to run from the date when the instrument of sale is registered. What is decisive under Article 10 is the subject of sale. If what is sold is property which admits of physical possession, the circumstance that the purchaser is by reason of some obstruction raised by a third party unable to obtain possession, does not, in my judgment, make it a subject of sale not admitting of physical possession. In other words, the expression 'does not admit of physical possession' does not refer to the inability of the vendor to deliver possession to the purchaser. It refers to the quantity of interest and the quality of estate sought to be conveyed. If the subject of sale cannot be physically possessed, then only the second part of Article 10 applies.

6. The view that I have expressed is supported by authority. In Jogamaya Dasi v.Tulsa. ILR (1925) 48 All. 12 it was held by a division bench of the Allahabad High Court that where a lessee had. agreed with his lessor to grant him a right of pre-emption on sale of the house constructed on the land demised and thereafter the lessee sold the house, which was in the occupation of a tenant of the lessee, the period of limitation commenced to run against the lessor in a suit for pre-emption when the purchaser obtained actual possession of the house. Similarly in Mohanlal v.Satyabhama (1927) 23 N.L.R. 178 the Additional Judicial Commissioner of Nagpur held that the land in the possession of a trespasser at the date of the registration of the sale-deed is not land which does not admit of physical possession within the meaning of Article 10 of the Limitation Act, I am, therefore, unable to agree with the contention that the plaintiff's suit was barred by limitation.

7. The appeal, therefore, fails and is dismissed with costs. Cross objections dismissed with costs.


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