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Vinod Kumar and anr. Vs. Suresh Pal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. Nos. 181 to 183 of 1985
Judge
Reported inAIR1985P& H361
ActsRegistration Act - Sections 30(2); Indian Limitation Act, 1963 - Schedule - Article 97
AppellantVinod Kumar and anr.
RespondentSuresh Pal
Cases ReferredJagdish Rai v. Suraj Kumar Singh
Excerpt:
.....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. - this view in my opinion, is erroneous in law article 97 of the limitation act clearly provides that the period of limitation would start from the date when the sale deed is registered and not from the date on which the plaintiff came to know of the registration of the instrument. this argument is clearly fallacious because explanation i deals with the notice off the previous sale to the subsequent vendee. suraj kumar singh air 1939 all 113. in that case the trial court as well as the first appellate court, on appraisal of..........under section 30(2) of the registration act. normally, under section 28 off the said act such sale deeds are to be registered in the office of a sub-registrar within whose sub-district the whole or some portion of the property is situate but section 30(2) authorises the registrar of the delihi district to register the sale deeds without regard to the situation in any part of india of the property. the plaintiff-respondent suresh pal brought three separate suits for possession on 23rd of august, 1984, to pre-empt these sales. applications were also filed along with the suits for condonation of delay in the filing of the suits. these applications were allowed by the trial sub-judge, jagadhari, on 12th of september, 1984. the orders passed by the trial court have been challenged by the.....
Judgment:
ORDER

1. By this judgment I am going to dispose of three civil revisions (C. R. Nos. 181, 182 and 183 of 1985) wherein identical questions of fact and law are involved.

2. The facts briefly stated giving rise to these revisions are that owners of land situate in village Naharpur, Teshil Jagadhari, district Ambala, sold the same to three sets of vendees who are the petitioners in these revisions. The sale deeds were executed on 3rd of January, 1983 and were registered on 10th January, 1983, at Delhi under Section 30(2) of the Registration Act. Normally, under Section 28 off the said Act such sale deeds are to be registered in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property is situate but Section 30(2) authorises the Registrar of the Delihi district to register the sale deeds without regard to the situation in any part of India of the property. The plaintiff-respondent Suresh Pal brought three separate suits for possession on 23rd of August, 1984, to pre-empt these sales. Applications were also filed along with the suits for condonation of delay in the filing of the suits. These applications were allowed by the trial Sub-Judge, Jagadhari, on 12th of September, 1984. The orders passed by the trial Court have been challenged by the vendees of the three sale deeds in these revisions petitions.

3. The core question for determination in these cases is whether the trial Sub-Judge had lawfully permitted the filling of the three suits after the expiry of the period of limitation Article 97 of the Indian Limitation Act, 1963, which relates to pre-emption suits, is as follows:-

(See Table below)

Description of suit Period of limitation Time from which period begins to run. '97. To enforce a right of pre-emption whether the right is founded on law or general usage or on special contract. One year When the purchaser takes under the sale sought to be impeached, 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 off the property, when the instrument of sale is registered'.

In the present case it is not disputed that the latter part of this Article is applicable and the limitation of one year is to be computed from the time when the instruments of sale were registered. In other words, the period of limitation had started running for these suits with effect from 10th of January, 1983, and so the suits had to be filed within one year of that date. The suits having filed on 23rd of August, 1984, were manifestly barred by time. the learned trial Court condoned the delay in the filing of the suits on the ground that the sale deed having been registered at Delhi, the plaintiff came to know, about them in the month of July, 1984 and since the suits had been filed within one year from the knowledge about the sale deeds, there was justification in condoning the delay. This view in my opinion, is erroneous in law Article 97 of the Limitation Act clearly provides that the period of limitation would start from the date when the sale deed is registered and not from the date on which the plaintiff came to know of the registration of the instrument. Hence the delay in filing of such pre-emption suits cannot be condoned simply because the pre-emptor became aware of the sale deeds long time after the registration of the instruments.

4. The trial Court has placed reliance on a judgment off this in Bachan Singh v. Darbara Singh (1964) 66 Pun LR 91 to condone the delay in filing of the suits. However this judgments is entirely inapplicable to those cases. It was held in that judgment that the period of limitation in that case was governed by Section 30 of the Punjab Pre-emption Act and as such the period of limitation had to be counted either from the date of attestation of the mutation or from the date when the vendees took physical possession of any part of the property. The cases with which I am dealing now are not governed by Section 30 of the Punjab Pre-emption Act but by Article 97 of the Limitation Act.

5. The respondents counsel contended that the sale deeds having been registered at Delhi under Section 30(2) of the Registration Act, although the property is situated in tehsil Jagadhari, copies of the instruments along with endorsements and certificates thereon should have been forwarded to the Sub-Registrar in whose jurisdiction the property was situate as provided in Section 67 off the Registration Act and since the provisions of Section 67 were not complied with, the period of limitation should be computed from the date of knowledge of the registration and not from the date of registration itself. I do not find this contention acceptable. The effect of non-compliance of Section 67 cannot be deferment of the date of registration of the sale deed. It cannot be said that the sale deed is to be deemed registered only when the provisions of Section 67 are complied with. It is quite clear that despite non-fulfilment of the procedure laid down in Section 67, the date of registration of the instrument remains the same when it was actually registered under Section 30(2) of the Act. It is, therefore, inevitable that according to Article 97 of the Limitation Act the period of limitation has necessarily to be counted from the date of registration of the sale deed and not from the date when the provisions of Section 97 of the Registration Act were complied with. In the present case it is stated that even till today Section 67 has not been complied with. Would it be justifiable to hold that the sale deeds in question have not been registered so far'. The answer must be in the negative. In my opinion therefore, the non-compliance of Section 67 does not extend the period of limitation as provided in Article 97 of the Limitation Act.

6. It is next contended by the plaintiff's counsel that Explanation I appended to Section 3 of the Transfer of Property Act would be applicable to the present cases and the period of limitation would start only from the time when the plaintiff-respondent came to know of the sale deeds. This argument is clearly fallacious because Explanation I deals with the notice off the previous sale to the subsequent vendee. this Explanation provides that where any transaction relating to immovable property is required to be effected by a registered instrument, any person acquiring such property subsequently shall be deemed to have notice of such instrument from the date of registration or where the registration has been effected under Section 30(2) of the Indian Registration Act, from the earliest date on which any memorandum of such registered instrument has been filed by the Sub-Registrar within whose jurisdiction any part of the property is situated. This provision of the Registration Act has no connection with the period of limitation regarding pre-emption suits. It has been enacted for the benefit of the subsequent vendees who happen to acquire property without knowledge of the previous transaction. Hence the Explanation attached to Section 3 of the Transfer of Property Act is of no help to the respondent.

7. It is lastly contended by the respondent's counsel that fraud has been committed by the petitioner-vendees by getting the sale deeds registered at Delhi and so under Section 17(1)(b) of the Limitation Act, the period of limitation would start flowing from the date of plaintiff-respondent came to know of the existence of the sale deeds. There is no merit in this contention. The vendees were entitled in law under Section 30(2) of the Registration Act to get the sale deeds registered at Delhi. It was not their duty to send copies of the registered sale deeds to the office of the Sub-Registrar in whose jurisdiction the property is situate: They were not obliged to inform the plaintiff or any other pre-emptor regarding the property purchased by them. In such circumstances it cannot be held that any fraud had been committed by the vendees upon the respondent. The respondent's counsel drew my attention to a judgment of the Allahabad High Court in Jagdish Rai v. Suraj Kumar Singh AIR 1939 All 113. In that case the trial Court as well as the first appellate Court, on appraisal of evidence, had held that the vendees had committed fraud on the pre-emptor and consequently the pre-emptor was entitled to file suit within one year from the date when the fraud was practised. This being a mixed question of fact and law the Allahabad High Court did not interfere in the same in second appeal. This judgment is, therefore, wholly inapplicable to the present case. Simply because the vendees did not get the sales in their favour mutated and did not inform the respondent about the transactions, it cannot be held that they are guilty of fraud envisaged under Section 17 of the Registration Act.

8. Having regard to the aforesaid discussion. It is not possible to uphold the impugned orders passed by the trial Court. The respondent's suits for pre-emption were evidently barred by time and the delay in the filing of the same could not be lawfully condoned by the trial Court. In this view of the matter, these three revision petitions are allowed, the impugned orders of the trial Court are set aside and all the three suits are hereby dismissed as barred by time. The parties are, however, left to bear their own costs.

9. Revision allowed.


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