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Chhaju and anr. Vs. Bharpai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 958 of 1973
Judge
Reported inAIR1983P& H203
ActsLimitation Act - Sections 30 - Schedule - Article 97; Registration Act - Sections 47
AppellantChhaju and anr.
RespondentBharpai
Cases ReferredLimitation Act. In Sardar Singh v. Smt
Excerpt:
.....? if so, to what amount? the trial court clearly held that the vendees took the possession of the suit land on the date of the attestation of the sale deed, i......the suit land for a sum of rs. 3,500/- to chhaju and teka, defendants-appellants vide registered sale deed dated may 21, 1969. the suit was filed on may 27, 1970, by the plaintiff-respondent claiming herself to be the daughter of the vendor mst. mado. the suit was contested on behalf of the defendants on the ground that the plaintiff was not the daughter of the vendor, as alleged and, thus, she had no right to pre-empt the land. a specific plea was taken that the suit was barred by time as they had taken physical possession of the suit land on the date of the sale in their favour and, therefore, the suit filed on may 27, 1970, was beyond limitation under article 97 of the limitation act read with section 30 of the punjab pre-emption act (hereinafter called the act). on the pleadings of.....
Judgment:

1. This is defendants' second appeal against whom the suit for possession by way of pre-emption was dismissed by the trial Court, but was decreed in appeal.

2. Mt. Mado sold the suit land for a sum of RS. 3,500/- to Chhaju and Teka, defendants-appellants vide registered sale deed dated May 21, 1969. The suit was filed on May 27, 1970, by the plaintiff-respondent claiming herself to be the daughter of the vendor Mst. Mado. The suit was contested on behalf of the defendants on the ground that the plaintiff was not the daughter of the vendor, as alleged and, thus, she had no right to pre-empt the land. A specific plea was taken that the suit was barred by time as they had taken physical possession of the suit land on the date of the sale in their favour and, therefore, the suit filed on May 27, 1970, was beyond limitation under Article 97 of the Limitation Act read with Section 30 of the Punjab Pre-emption Act (hereinafter called the Act). On the pleadings of the parties, the trial Court framed the following issues :

1. Whether the plaintiff is the daughter of the vendor and to what effect ?

2. Whether the sale price was paid and fixed in good faith ?

3. What is the market value of the land, in dispute, on the date of its sale ?

4. Whether the vendees are entitled to the expenses of transaction If so, to what amount?

5. Whether the suit is within limitation ?

6. Whether the vendees are entitled to the expenses for carrying out improvements ?

7. Relief.

All the issues except issue No. 5, in regard to limitation, were found in favour of the plaintiff and consequently, her suit was dismissed. The trial Court held that the limitation would start from May 21, 1969, as the possession of the suit land was delivered on that day of the vendees-defendants and it was so admitted by the plaintiff herself also who appeared as P.W. 1. In appeal, the learned Additional District Judge, reversed the finding of the trial Court and, thus, decreed her suit. Dissatisfied with the same, the defendant-appellants have come up in second appeal to this Court.

3. The only question to be determined in this case is : whether the suit was filed within time or not Admittedly, the sale deed was executed and attested on May 21, 1969, but was entered in the registration book on June 5, 1969. The suit has been filed on May 27, 1970. According to Section 30 of the Act, read with Article 97 of the Act, read with Article 97 of the Limitation Act, the limitation is one year to enforce the right of pre-emption and the time begins to run when the purchaser takes, under the sale sought to be impeached, the 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. The trial Court clearly held that the vendees took the possession of the suit land on the date of the attestation of the sale deed, i. e., May 21, 1969 and it is so mentioned in the sale deed, Exhibit D-1, Chhaju, vendee, D.W. 7, also claimed the same. Besides, the plaintiff, who appeared as P.W. 1, also admitted the same. Therefore, ultimately, it was held that the limitation would start from May 21, 1969 and not from the date when the deed was actually entered in the registration book on June 5, 1969. The lower appellate Court has observed that in the present case, there is a recital in the sale deed that the possession had already been delivered to the vendees before the execution of the sale deed and, therefore, the possession could not be deemed to have been transferred under the sale and, under the circumstances, the limitation would start from the date of the actual registration, i. e., June 5, 1969. Reliance in this behalf was placed on Bai Chander Mani v. Bhagirath, AIR 1961 Punj 296. This finding recorded by the lower appellate Court is against the record. In the sale deed, Exhibit D-1 it is nowhere said that the possession had already been delivered before the execution of the sale deed; rather the recital is that the possession had been delivered to the vendees under the sale. Apart from that, even the plaintiff admitted that the possession was delivered on the date of execution of the sale deed. Thus, this finding of the lower appellate Court is vitiated as the same is based on the misreading of the evidence on the record. The finding of the trial Court in this respect, is more convincing and in accordance with the recitals in the sale deed.

4. The learned counsel for the respondent contended that Section 21 of the Act, inter alia, provides that a person is entitled to a right of pre-emption only when the sale has been completed. According to the learned counsel, because the sale was completed on June 5, 1969, when the sale deed was entered in the registration book, therefore, the limitation would start from that date. In support of this contention, the learned counsel relied upon Ram Chand v. Smt. Rajinder Kaur, 1972 Pur LJ 584. I do not find any merit in this contention. The abovesaid decision is not at all applicable to the facts of the present case. Limitation for bringing a suit for pre-emption has been provided under Section 30 of the Act, read with Article 97 of the Limitation Act. In Sardar Singh v. Smt, Dalip Kaur, AIR 1981 Punj and Har 340, it has been held that in cases where possessions delivered in the date of execution of the sale deed whether before or during the execution thereof or soon thereafter on that date, it would be considered in law to be under the sale and the limitation for a suit to pre-empt the sale would start from the execution of the sale deed and not from the date of its registration. In such a case, the first part of the third column of Article 97 would be applicable and not the second part. It was wholly immaterial whether possession was taken before the sale deed was written or while it was being written or after it was completed and signed by the parties. In such a case first apart of the third column of Article 97 would apply and not the second part. The only correct way to interpret the first part would be to hold that the sale would be complete when the same is executed because Section 47 of the Registration Act takes back the sale to the date of its execution. The moment sale deed is executed the rights of the parties stand crystallised and that is generally the date on which the deeds are presented for registration and the possession is taken by the vendees. The ratio of Sardar Singh's case (supra) is fully applicable to the facts of the parties present case.

5. For the reasons recorded above, this appeal succeeds and is allowed. The judgment and decree of the lower appellate Court are set aside and that of the trial Court dismissing the plaintiff's suit are restored with costs.

6. Appeal allowed.


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