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Sri Thakurji Maharaj and anr. Vs. Sujan Singh and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1939All158
AppellantSri Thakurji Maharaj and anr.
RespondentSujan Singh and ors.
Excerpt:
- - 1. this is an appeal by defendant 5 as well as defendant 4 and arises out of a suit for pre-emption which has been decreed by both the courts below. in either case the suit giving rise to this appeal was well within time......the courts below. the only point involved in the appeal is one of limitation. on 13th july 1932 a sale deed was executed by defendants 1 to 3 in respect of certain property in favour of hira lal, defendant 4, and appellant 2. the suit for pre-emption which has given rise to this appeal was filed by the plaintiffs-respondents on 12th july 1933 impleading hira lal alone, claiming that they had preferential rights of purchase as against hira lal, and praying for a decree for possession by right of pre-emption in respect of the sale deed of 13th july 1932 in their favour. in his written statement hira lal alleged that he was no longer in possession of the property in question as he had by a deed of waqf dated 22nd october 1932 transferred his entire property, including the property which he.....
Judgment:

Verma, J.

1. This is an appeal by defendant 5 as well as defendant 4 and arises out of a suit for pre-emption which has been decreed by both the Courts below. The only point involved in the appeal is one of limitation. On 13th July 1932 a sale deed was executed by defendants 1 to 3 in respect of certain property in favour of Hira Lal, defendant 4, and appellant 2. The suit for pre-emption which has given rise to this appeal was filed by the plaintiffs-respondents on 12th July 1933 impleading Hira Lal alone, claiming that they had preferential rights of purchase as against Hira Lal, and praying for a decree for possession by right of pre-emption in respect of the sale deed of 13th July 1932 in their favour. In his written statement Hira Lal alleged that he was no longer in possession of the property in question as he had by a deed of waqf dated 22nd October 1932 transferred his entire property, including the property which he had purchased under the sale deed in question to Sri Thakurji Maharaj. Thereupon the plaintiffs applied that Sri Thakurji Maharaj be impleaded as a defendant in the suit and asked for consequential amendments of the plaint. This application was granted on 20th December 1933 and Sri Thakurji Maharaj was added as defendant 5. A written statement was filed on behalf of Sri Thakurji Maharaj and one of the pleas taken in it was that 'the plaintiffs' claim as against the contesting defendant is barred by one year's limitation.' This plea was explained in the course of arguments before the trial Court to mean that the period of one year was to be taken from the date of the transfer in favour of the idol, namely 22nd October 1932 when the deed of waqf was executed. Both the Courts below have repelled this contention. The same argument has been advanced before us as was urged before the Courts below and it is argued that the suit as against the idol must be held to be time barred. The Article of the Limitation Act which has to be considered is Article 10. It runs thus:

To enforce a right of pre-emption...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.

2. The deed of sale which the plaintiffs sought to impeach by this suit was, as mentioned above, executed on 13th July 1932. The suit was filed within one year from that date. The suit was to enforce a right of pre-emption in respect of that sale deed. The cause of action for that suit arose either on the registration of that sale deed, or, when the purchaser took physical possession of the property, and that cause of action was based on the fact that property had been sold to a person as against whom the plaintiffs had a preferential right of purchase. If a purchaser under a sale deed in respect of which the cause of action for the suit for pre-emption has arisen has subsequently transferred the property to another, the original cause of action for pre-emption is not thereby affected. The subsequent transferee from the original vendee must take the transfer subject to the 'plaintiff's' right to pre-empt. It has been so held by a Full Bench of the Punjab Chief Court in Karamdad v. Muhammad (1913) 31 P.R. 1913. The late Court of the Judicial Commissioner of Oudh has also accepted that view in Razawand Singh v. Dukchhor (1914) 1 A.I.R. Oudh. 216. We agree with the view expressed in these cases that a suit in these circumstances is not barred by time as against the subsequent transferee. The suit as against the subsequent transferee may be regarded as one for declaration, and so governed by Article 120, or as one for possession against a person who is in possession without title, and so governed by the 12 years rule of limitation. In either case the suit giving rise to this appeal was well within time. Reference may also be made to the decision of a Bench of this Court in Sat Narain v. Badri Nath (1912) 9 A.L.J. 211. We do not think that the fact that the sale deed in favour of the subsequent transferee in that case was registered a few days after the expiry of the period of one year from the date of the first sale deed affords any valid ground for distinguishing that case. It is admitted by the learned Counsel for the appellants that he has no authority to support his contention. For the reasons given above, we dismiss this appeal with costs.


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