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Balwant Rai and ors. Vs. Ram Gopal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberS.A.O. No. 84 of 1970
Judge
Reported inAIR1970P& H354
ActsPunjab Pre-emption Act, 1913 - Sections 7 and 30(3); Limitation Act, 1963 - Schedule - Article 97
AppellantBalwant Rai and ors.
RespondentRam Gopal and ors.
Cases ReferredIn Ram Saran Lall v. Mst. Domini Kuer
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - shri roop chand has not challenged the fact that the copying of the document in the register was complete not earlier than february 24, 1968. the application for amendment was made on..........one-half share to the appellants for rs.2250 by a sale deed executed and registered on that date. suit for possession by pre-emption was filed by the respondents pre-empting the sale on the ground that they were tenants of the house sold. in the plaint, the respondents did not plead that there existed custom of pre-emption in respect of sale of urban immovable property situate in the town of ambala city. in the written statement filed on behalf of the appellants, objection was raised that no suit could lie in that absence of plea raised on behalf of the respondents that there existed custom for pre-emption of the property sold. on february 5, 1969, application for amendment of the plaint was filed on behalf of the respondents stating that there existed custom for pre-emption of urban.....
Judgment:

1. This is second appeal by Balwant Rai, Kulwant Rai, Haqiqat Rai and Daljit Rai against Ram Gopal, Chhabil Dass and Joginder Singh. It is directed against the judgment of Shri R. S. Gupta, Additional District Judge, Ambala dated May 30, 1970 allowing the appeal of the respondents and directing the trial Court to allow the respondents to amend the plaint filed on their behalf in a suit to pre-empt the sale of a house effected in favour of the appellants.

2. Facts leading to the appeal are as under:--

3. Brij Lal and Jawala Parshad jointly owned house No. 8189/7433-101 situate in Ward No. 6 in the town of Ambala City. On January 29, 1968, Jawala Parshad sold his one-half share to the appellants for Rs.2250 by a sale deed executed and registered on that date. Suit for possession by pre-emption was filed by the respondents pre-empting the sale on the ground that they were tenants of the house sold. In the plaint, the respondents did not plead that there existed custom of pre-emption in respect of sale of urban immovable property situate in the town of Ambala City. In the written statement filed on behalf of the appellants, objection was raised that no suit could lie in that absence of plea raised on behalf of the respondents that there existed custom for pre-emption of the property sold. On February 5, 1969, application for amendment of the plaint was filed on behalf of the respondents stating that there existed custom for pre-emption of urban immovable property situate in the city of Ambala and that they be allowed to amend the plaint to specifically state therein that plea. In the reply filed on behalf of the appellants, the amendment was opposed. On February 24, 1969, the trial Court rejected the amendment application holding that the amendment sought to be introduced pertained to a fresh cause of action and the sale deed having been registered on January 29, 1968 was belated and would convert the suit already filed into fresh suit after the period of limitation of one year. On February 27, 1969, the trial Court framed the following preliminary issue:--

'Whether the suit is not maintainable on the ground that custom of pre-emption is not pleaded.'

4. The trial Court held under that issue that plea having been raised on behalf of the respondents as required by Section 7 of the Punjab Pre-emption Act, 1913, the suit did not lie and dismissed the same. Feeling aggrieved of the judgment of the trial Court, the respondents preferred an appeal with the District Judge. The Additional District Judge, to whom the appeal was entrusted for disposal, held that the decision on preliminary issue framed by the trial Court was erroneous inasmuch as the period of limitation for filing the suit had not expired on January 29, 1968 but it ran out on February 24, 1968, when the registration of the sale deed was completed by its being copied in the register kept for the purpose. The appellants being dissatisfied with that judgment of the Additional District Judge have presented the present appeal.

5. The only point, which has been urged before me by Shri Roop Chand Chowdhry appearing on behalf of the appellants is that the date of starting point of limitation determined by the lower appellate Court is wrong inasmuch as the physical possession of the property had been taken by the appellants on January 29, 1968, when the deed was registered and consequently the dates of registration of the deed and the taking of physical possession being the same, the period of limitation ran out on January 29, 1968 and not on February 24, 1968, when the registration of the sale deed was complete. Under Article 97 of the Limitation Act, 1963 and also under Section 30(3) of the Punjab Pre-emption Act, the period of limitation to institute a suit to enforce right of pre-emption is one year from the date, when the vendee takes physical possession of the property sold. In the present case, the vendees themselves were the tenants. They continued to be in possession on and after the date of sale of the property as they were in possession prior to its sale. No physical possession was delivered by Jawala Parshad to the appellants-vendees. It is one-half share of the house, which belonged to Jawala Parshad and which was sold to the appellants and not any of its portion by metes and bounds. Jawala Parshad and Brij Lal were the joint owners of the property.

That property admittedly had not been partitioned between these two co-owners. Thus, it is only the notional one moiety of the property, which was sold and no physical possession of the property could lie or was delivered at the time its sale took place. Period of limitation of one year starts from the date of delivery of physical possession of the property, if the corpus of the property is capable of being delivered by the vendor to the vendee. In the present case, the property having not been partitioned between the two joint owners, the property could not be held to be capable of being physically delivered to the vendees. As the property sold was unspecified one-half share belonging to Jawala Parshad and the sale had not taken place of its any portion by metes and bounds and the notional share of the property sold was incapable of delivery of physical possession, the period of limitation could not run from the date of execution and registration of the document, namely, January 29, 1968, when its physical possession is also claimed to have been taken by the appellants-vendees. As the property was incapable of being physically delivered to the vendees on the date, when it is said to have been sold and had never in fact been physically handed over to the vendees, the only terminus a quo from which the period of limitation can start is the date of registration. In Ram Saran Lall v. Mst. Domini Kuer, AIR 1961 SC 1747, it was held that the registration in respect of sale of immovable property under the Registration Act is not complete till the document to be registered has been copied out in the records of the Registration Office. Shri Roop Chand has not challenged the fact that the copying of the document in the register was complete not earlier than February 24, 1968. The application for amendment was made on February 5, 1969. That application was well within the period of limitation provided for filing a suit to enforce right of pre-emption. If a suit could be filed on or before February 24, 1969, an application for amendment of the plaint by raising even a plea constituting fresh cause of action could be made and allowed. No other point was argued by the counsel for the appellants.

6. In the result, the appeal fails and is disallowed. There will, however, be no order as to costs.

7. Appeal dismissed.


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