Skip to content


Sundra and anr. Vs. Harnam Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 356 of 1982
Judge
Reported inAIR1983P& H25
ActsLimitation Act - Sections 21(1)
AppellantSundra and anr.
RespondentHarnam Singh and ors.
Cases Referred and Samir Singh v. Ujagar Singh
Excerpt:
.....clearly shows that it was made more than clear that the sale was mad e in favour of three vendees and not only two who were impleaded as defendants. ..5. it clearly shows that 1/2 share was being sold to prem singh (and) chand sons of sadhu ram, in equal shares. but it has been ruled in decided cases that it is a piratical and a weak right and can be defeated by all legitimate means......brother's son of the vendor. the last date for filing the suit was 11th of june, 1981. hence the suit filed was within limitation. in the suit, two vendees were impleaded besides the vendor, as follows:--1. sundra son of ramji lal. 2. prem singh alias prem chand son of sadhu ram a reading of the plaint shows that the sale was in favour of two vendees and therefore, both were impleaded as defendants. when notice of the suit went to the vendees, they filed written statement on 31st of august, 1981 in which they inter alia raised preliminary objections nos. 1 and 5 with which we are concerned in this case. the translation of objection no. 1, is as follows:--'that the land in dispute has not been purchased by the two vendees but has been purchased by three. only two had been made parties......
Judgment:
ORDER

1. On 4th of June, 1980, a sale deed was executed and was presented for registration and it was actually entered in the book of registration on 11th of June, 1980. The vendor was Gurcharan Singh, son of Harbans Singh son of Mangal Singh. 87 Kanals 5 Marlas of land was sold for Rs. 1,33,593. The names of the vendees are not being mentioned here purposely and will come in the later part of the judgment. On 4th of June, 1981. Harnam Singh filed a suit to pre-empt the aforesaid sale being father's brother and father's brother's son of the vendor. The last date for filing the suit was 11th of June, 1981. Hence the suit filed was within limitation. In the suit, two vendees were impleaded besides the vendor, as follows:--

1. Sundra son of Ramji Lal.

2. Prem Singh alias Prem Chand son of Sadhu Ram

A reading of the plaint shows that the sale was in favour of two vendees and therefore, both were impleaded as defendants. When notice of the suit went to the vendees, they filed written statement on 31st of August, 1981 in which they inter alia raised preliminary objections Nos. 1 and 5 with which we are concerned in this case. The translation of Objection No. 1, is as follows:--

'That the land in dispute has not been purchased by the two vendees but has been purchased by three. Only two had been made parties. Therefore, this suit deserves to be dismissed on this ground.'

The true translation of preliminary objection No. 5 is as follows:--

'The suit is liable to be dismissed on the ground of partial pre-emption.'

Wherever in the body of the plaint it was stated that sale was made to defendants Nos. 1 and 2, it was replied in the written statement that the sale was made in favour of three vendees including defendants Nos. 1 and 2. A reading of the entire written statement clearly shows that it was made more than clear that the sale was mad e in favour of three vendees and not only two who were impleaded as defendants. The plaintiff sought time to file replication which was granted and the case was adjourned to 14th Sept., 1981. On that day, replication was not filed and another opportunity was granted to file replication on 28th Sept., 1981 on payment of Rs. 10 as costs. On 28th Sept., 1981, replication was not filed and further adjournment was sought. The matter was adjourned to 21st Oct., 1981 on payment of Rs. 20 as costs. Previous costs were paid. On 21st Oct., 1981. the issues were also to be framed. On that date, the learned Judge did not hold the Court and the case came up on 6th Nov. 1981, when the case was again adjourned to 9th Nov. 1981 for filing of replication and issues. On 9th Nov., 1981, replication was not ready and adjournment sought for was allowed on payment of Rs. 20 as costs. Previous costs were paid and the case was adjourned for replication and issues for 16th Nov., 1981. On 16th Nov., 1981, instead of filing replication, an application was filed P. C. seeking amendment of the plaint to include the name of the third vendee. That application was opposed by the vendees and ultimately by order dated 7-1-1982, the amendment was allowed on payment of Rs. As costs. Against the aforesaid order, the vendee-defendants have come up in revision to this Court.

2. The Court below allowed amendment particularly on the basis that the mistake was unintentional and bona fide which cropped up due tom error of the names of the persons in the certified copy of the sale deed provided to them. On the facts of the present case, the learned counsel for the defendants has strenuously urged that the amendment sought for was neither bona fide nor could be due to any mistake from the certified copy of the sale deed supplied to the plaintiffs. It was further urged that even if there was some mistake in the mind of the plaintiffs at the time of filing of the suit, that was cleared the day written statement was followed and in spite of that, the plaintiffs applied for amendment on 16th of Nov., 1981 after more than 11/2 months of the filing of the written statement and, therefore, indulgence of amendment could not be allowed in this case especially in pre-emption suits.

3. After hearing the learned counsel for the parties at length, I am of the view that this revision deserves to succeed.

4. What I am saying in this case, should not be read for cases other than pre-emption cases. Firstly coming to the factual position, the copy of the registered sale deed is on the record of this case. The true translation of the relevant portion describing vendees is as follows:--

'Sundra son of Ramji Lal 1/2 share and Prem Singh Chand sons of Sadhu Ram, resident of

Katlehri in equal shares 1/2 share........'

5. It clearly shows that 1/2 share was being sold to Prem Singh (and) Chand sons of Sadhu Ram, in equal shares. No doubt is left on a reading of the copy of the sale deed that there were at least three vendees because one vendee was Sundra son of Ramji Lal and at least two sons of Sadhu Ram were the vendees getting equal getting share in the remaining 1/2 share. If there were to be two vendees, it would have been mentioned as sons of Sadhu Ram in equal share, rather it would have read as Sundra son of Ramji Lal--1/2 share and Prem Singh son of Sadhu Ram 1/2 share. The specific mentioning of sons of Sadhu Ram and in equal shares, leaves no room for doubt that 1/2 share was being sold in favour of the two sons of Sadhu Ram in equal shares. Therefore, I do not find any mistake in the copy of the sale deed. In any event the mentioning of 'sons of Sadhu Ram and in equal shares' would have put the plaintiffs to guard to find out the correct names of the two sons of Sadhu Ram and to implead them as vendees in the suit besides Sundra son of Ramji Lal. If no enquiry was made, then the plaintiffs would have come to know that Sadhu Ram had two sons Prem Singh and Chand alias Chander and would have impleaded all the three vendees in the suit. It is to be noted that the suit was filed almost a week before the last date of limitation and during this period, they had sufficient time to make enquiry and implead the correct vendees. Moreover, the vendor in this case was no other than the real nephew of plaintiff No. 1 and first cousin of plaintiff No. 2 and from hi at least it could be found out whether, I am of the opinion that in the background of this case, it cannot be held that there was a bona fide mistake in impleading the vendees due to the certified copy of the sale deed.

6. Assuming for the sale of argument that there could be a faint chance of misunderstanding from the certified copy of the sale deed. When the mistake was pointed out on 31st Aug. 1981' in clear and certain terms that there were three vendees and not two, that very day or soon thereafter if the mistake had been corrected, something may have been said in favour of the plaintiffs. They slept over the matter foe 11/2 months and kept on seeking adjournments for filing replication, and the application for amendment of the plaint was filed on 16th Nov. 1981 after undue delay. Therefore, no indulgence could be shown on this basis also. The aforesaid view of mine finds support from a Division Bench judgment of this Court in Bhawani Dass v. Kaushalya Rani, 1981 Pun LJ 131 : (AIR 1981 Punj & Har 196).

7. Although right of pre-emption is statutory. but it has been ruled in decided cases that it is a piratical and a weak right and can be defeated by all legitimate means. The Parliament did not permit even minors to have limitation of more than one year in pre-emption suits whereas for all other matters, they have limitation up to three years after attaining majority. that is why pre-emption cases have to be decided on different basis vis-a-vis suits under the general law of the land. It is not disputed that if the third vendee had to be added with effect from 16th Nov. 1981, when the application for amendment was filed suit against him would be barred by time with the result that it would be a suit for partial pre-emption. The entire suit will have to be dismissed. Before the Court below. It was not pleaded that the delay in impleading the third vendee should be condoned under the proviso to sub-section (1) of S. 21 of the Limitation Act.

8. Before me, learned counsel for the plaintiffs urged that this Court may exercise the discretion and grant the relief of condonation of delay to the plaintiffs and the added third deemed to have been a party with effect from the filing of the suit. No satisfactory explanation has been furnished before me for exercising the discretion in favour of the plaintiffs and I, therefore, decline to condone the delay.

9. In fairness, it must be stated that the whole argument of the learned counsel for the plaintiffs was that there was a bona fide mistake in the mind of the plaintiffs while drafting the plaint and in support of his argument, he places reliance on Deedar Singh v. Dalbir Singh, 1970 Cur LJ 143(Punj), Banta Singh Ganga Singh v. Smt.. Harbhajan Kaur, AIR 1974 Punj & Har 247(FB), and Samir Singh v. Ujagar Singh, 1976 Cur LJ 463(Punj). All the aforesaid three decided cases are entirely on different facts and have no bearing on the facts of the present case.

10. On the other hand, Bhawani Dass's case (AIR 1981 Punj & Har 196)(supra) is quite similar to the present case where out of two vendees, one was left out and the left out vendee was sought to be added in a period less than 11/2 months and yet the plaintiff was not permitted to do so.

11. For the reasons recorded above, this revision is allowed. The order of the Court below sated 7th Jan. 1982 is set aside and the application for amendment of the plaint to add the name of the third vendee is dismissed. The plaintiff-respondents shall bear the cost of this revision petition. Parties through their learned counsel are directed to appear before the trial Court on 20th Sept. 1982 for further proceedings with the suit in accordance with the law.

12. Revision allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //