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Dhapal Singh Vs. Gopi Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1949All471
AppellantDhapal Singh
RespondentGopi Chand and ors.
Excerpt:
.....board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - if it ran from the date of the permission by the assistant collector, namely 4th march 1944, it was clearly within time, but if it ran from any other date more than a year prior to 23rd february 1945, it is equally clear that the suit was beyond time. regulation of agricultural credit act clearly imply that the date of the permission by the assistant collector does not affect the question of limitation for a suit for pre-emption. on the other hand, the words 'any question' in the above quotation clearly imply that the fact of the permission dating back to the date of the original transfer as mentioned in sub-section (2) of section 26 would have no bar on the question of the period of limitation for such a..........to have brought a suit for pre-emption. in cases in which upto the date of the decree in the pre-emption suit, no permission under section 24 of this act has been granted, the court would be necessarily giving a decree for pre-emption in respect of a transaction which, in the eye of law, has not yet matured into an absolute sale. that is an intolerable proposition and is shocking to the very conception of a right of pre-emption which must in every case involve a claim to an absolute proprietary title by the replacement of the original transferee.7. as observed by the learned munsif, if the contrary view were adopted, one of the curious consequences would be that the vendee can easily defeat the right of an intending co-sharer to claim substitution by preemption simply by inducing his.....
Judgment:

Mushtaq Ahmad, J.

1. This is a plaintiff's appeal arising out of a suit for pre-emption. The only question involved and to be decided in the appeal is one of limitation. The trial Court, holding that the suit was within time, decreed it, while the lower appellate Court being of the view that the claim was beyond time dismissed it. This appeal is against the latter decree.

2. The sale deed in question was executed by defendant 4 in favour of defendants 1 to 3 on 15th December 1943, in regard to an undivided share in certain specific proprietary plots for Rs. 4000. It may be mentioned at once that this amount was accepted as the actual pale consideration and is no more open to question in this appeal.

3. Admittedly the property covered by the above sale is what is known as 'protected land' within the meaning of the U.P. Regulation of Agricultural Credit Act XIV [14] of 1940. As such, under Section 24 of the Act, the property could not be permanently alienated without the permission of the Assistant Collector, in charge of the Sub-Division in which it lay. It is conceded by the vendee that no such permission had been obtained prior to the date of the sale-deed. Such permission was, however, obtained on 4th March 1944, within a year of which, that is on 23rd February 1945, the suit giving rise to this appeal was filed. The question was from what date the period of limitation for this suit ran. If it ran from the date of the permission by the Assistant Collector, namely 4th March 1944, it was clearly within time, but if it ran from any other date more than a year prior to 23rd February 1945, it is equally clear that the suit was beyond time. This is the principal question in the appeal.

4. The ground on which the trial Court held the suit as within time was that the sale deed dated 15th December 1943, though ostensibly a deed of permanent alienation, was in effect only a usufructuary mortgage, having regard to the provisions of Section 25 read with Section 13 (1) (a) of the aforesaid Act, so long as the permission of the Assistant Collector concerned had not been obtained. The learned Munsif in the course of his judgment, while fortifying his view by a number of circumstances, remarked that:

If this view of the matter is not taken the vendees will easily dupe the pre-emption (obviously meaning pre-emptor) by letting the vendor to take the permission after the period of limitation has expired for a suit for pre-emption.

5. This I consider to be a reasoning worthy of my serious consideration.

6. The lower appellate Court, on the other hand, based its contrary view on the question of limitation on the ground that there was neither any provision in the U.P. Regulation of Agricultural Credit Act, nor in the Limitation Act altering the mode prescribed in Article 10 of the latter Act for calculating the period of limitation. What the learned Judge meant was that if the legislature had intended to allow an extended period of limitation for a suit for preemption so as to sanction its computation from the date of the permission of the Assistant Collector under section 24, U.P. Regulation of Agricultural Credit Act, some provision must have been made to that effect, at least in Article 10, Limitation Act, and that in the absence of this, the said Article had to be applied as strictly as it would be applied even in cases outside this particular Act XIV [14] of 1940. That was, I may conceive, a possible line of reasoning, but it omits the necessary implications of certain vital and fundamental aspects, which, in my opinion, tend to make the position highly anomalous, if the view taken by the lower appellate Court was to be affirmed. To start with, one would have to say that although up to the granting of the necessary permission by the Assistant Collector there is no effective alienation in the sense that absolute title has passed on to the transferee from the transferor, and that must be the necessary effect of Section 24 of this local Act, it was still imperative for the pre-emptor to have brought a suit for pre-emption. In cases in which upto the date of the decree in the pre-emption suit, no permission under Section 24 of this Act has been granted, the Court would be necessarily giving a decree for pre-emption in respect of a transaction which, in the eye of law, has not yet matured into an absolute sale. That is an intolerable proposition and is shocking to the very conception of a right of pre-emption which must in every case involve a claim to an absolute proprietary title by the replacement of the original transferee.

7. As observed by the learned Munsif, if the contrary view were adopted, one of the curious consequences would be that the vendee can easily defeat the right of an intending co-sharer to claim substitution by preemption simply by inducing his vendor to postpone his seeking permission under Section 24 of Act XIV [14] of 1940 for over a year from the date of the transfer. In other words, the co-sharer, without any fault of his own, would be exposed to the risk of losing an otherwise undeniable right simply by the vendor or the vendee or both of them in combination arranging to defeat that right. This would be contrary to the very basic principles of jurisprudence, namely that a man should be made to suffer not for what he does himself but for what others may be permitted to do with impunity.

8. It was contended by the learned Counsel for the respondents that the provisions of Sub-section (3) of Section 26, U.P. Regulation of Agricultural Credit Act clearly imply that the date of the permission by the Assistant Collector does not affect the question of limitation for a suit for pre-emption. This sub-section is worded thus:

An order passed under this section shall not affect any question of title or any question relating to reversionary right or right of pre-emption.

9. Now Section 26 of which the above sub-section is a part, relates to cases in which the Assistant Collector is approached for granting permission, for a permanent alienation pending proceedings for mutation under the Land Revenue Act. The previous Section 24, on the other hand, requires such permission being obtained prior to such an alienation. A provision similar to this subsection is to be found in Section 24 also. The legal effect of the two identical provisions, in my opinion, would be that the mere fact of the Assistant Collector having permitted the alienation, either prior to the date of the alienation or subsequent to it, would not affect the right of a co-sharer to claim pre-emption in substitution of the alienee. That is to say, the alienee would not be permitted to deny such a right merely on the ground that his alienation has been sanctioned by a local authority either before or after it was made. That, I consider, is the only meaning of these provisions, and they do not, in my view, profess to prescribe or determine any particular rule of limitation applicable to a suit for pre-emption. Any other interpretation of these provisions would give rise to the anomalies which I have already pointed-out earlier in my judgment. The words ' shall not affect any question...relating; to...a right of preemption' in Sub-section (3) of Section 26 as also in Sub-section (4) of Section 24, are not free from significance. If the words were 'shall not affect a right of pre-emption' one might argue that the date of the granting of the permission was not relevant to the normal mode of calculation of the period of limitation for a suit of this nature. On the other hand, the words 'any question' in the above quotation clearly imply that the fact of the permission dating back to the date of the original transfer as mentioned in Sub-section (2) of Section 26 would have no bar on the question of the period of limitation for such a purpose at all.

10. In view of the above considerations I am of the opinion that although Article 10, Limitation Act was allowed by the legislature to remain in its original form, even after the promulgation of Act XIV [14] of 1940. it must be held as a natural consequence of the provisions; of this Act that the period of limitation for a suit for pre-emption must be calculated in every case of a permanent alienation of protected land only from the date on which the alienation has been sanctioned by the Assistant Collector. Of course, where the permission precedes the alienation, Article 10, Limitation Act would apply in its terms, but where it follows the alienation, so that what was till then only a usufructuary mortgage for the first time became a permanent alienation as a result of the (permission, the period must be taken to run from the date of such permission. The date of this permission in the present case was 4th March 1944 and the period must be taken to run from that date.

11. I am, therefore, of opinion that the suit brought by the plaintiff-appellant, as held by the trial Court, was within time and it was wrongly dismissed by the lower appellate Court as barred by limitation.

12. I, therefore, set aside the decree of the lower appellate Court, restore that of the Court of first instance and grant the plaintiff a decree for pre-emption. He would be entitled to his costs throughout.

13. Leave to appeal under the Letters Patent is granted.


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