1. This is an appeal by certificate from a judgment of the Punjab High Court dismissing a suit filed by the appellants for possession by pre emption of certain lands.
2. The facts may be shortly stated. By means of a deed June 6, 1958 which was registered on February 16, 1959 Gurbux Singh sold to Karam Singh and others land, measuring 214 bighas3 biswas another in village Manakpur Shariff, Tehsil Kharar in Amabala District. It was stated in the sale deed that the land was being sold together with a share in the village Shemlat Deh a share in certain houses and Taurs etc. On February 12, 1960, the appellants who are minor sons of Gurbux Singh instituted a suit for possession by pre-emption with their mother acting as their next friend. The suit was resisted by the vendees and the principal question which has to be decided was one of limitation which formed the subject matter of issue No, 4.
3. The trial judge held that since the subject matter of sale was a share in Shemlat Deh also which was not capable of physical possession, the second part of Article 101 of the Indian Limitation Act 1908, hereinafter called the Act, was applicable and the suit was well within one year. The matter was taken by way of appeal to the High Court by the vendees. According to the High Court the mention of Shemlat Deh etc in the sale deed was not meant to refer to any rights in Shemlat Deh as the subject matter of sale and the various rights entered there including those in Shemlat Deh found mention only by way of routine. The property was thus capable of physical possession and the terminus-aquao would be the date of the registration of the deed of sale. In other words the first part of Article 10 would be applicable inasmuch as the pre-emptors who were the sons of the vendor must have been aware of the date of the sale on which physical possession was recited in the sale deed to have been delivered.
4. Article 10 of the Act is in the following terms:
4. Article 10 of the Act is in the following terms:Description
of suitPeriod of
limitationtime from which period
begins to run10. To enforce a right of
the right is founded on
law, or general usage,
or on special contract.one yearWhen the purchaser takes
under the sale sought to be
impeached, physical possession
of the property sold, or where
the subject of the sale does
not admit of physical possession
when the instrument of
sale is registered.
In the sale deed it was clearly mentioned that a share is the Shemlat Deh was included in the property which was being sold. In the written statement filed by the vendors no objection was taken that the recital in the sale deed was by way of routine and in fact the share in the Shemlat land did not form the subject matter of sale. On the contrary the vendees has pleaded that the suit was bad as it was for partial pre-emption. An issue had been framed by the trial court on that point, being issue No. 5A Karam Singh one of the vendees who appeared as D.W.4, stated apparently with reference to the aforesaid issue that the suit had not been filed for the entire property which had been sold and that the Shemlat, the abadi and some khesra nos. had been excluded. Before the trial judge the vendees did not even suggest that the share in the Shemlat Deh did not form the subject matter of sale. Indeed it appears thatat that stage it was common ground that a share in the Shemlat land was one of the properties which had been sold by Gurbux Singh by means of the sate deed in question. It was for the first time in the High Court that a new case was sought to be made out that rights or share in the Shemlat could not have formed the subject matter of sale. It was urged that the recital in the sale deed had been made as a matter of routine and there was no evidence that the vendor had any share in the Shemlat Deh which he could have conveyed by means of the sale deed. The High Court observed that the plaintiffs had failed to show that the vendor had any share in the Shemlat Deh which had been allotted to him by means of the allotment order No.AB-2/330'43
5. In our judgment the High Court completely overlooked the pleadings of the vendees as also the position taken by them in the evidence and before the trial court. Normally and according to the settled principles a new case cannot be allowed to be made out which is not laid in the pleadings particularly on a question of fact, whether a piece of property formed the subject matter of sale which was sought to be pre empted. In the absence of any pleas and proper issues on the point the burden could not have been thrown as appears to have been done on the plaintiffs to show that the vendor had a share in the Shemlat Deh. It has been suggested on behalf of the respondents that the High Court had in mind the provisions of the Punjab Village Common Lands Act, (Act 1 of 1954) by which all Shemlat Deh lands had vested in village panchayats and a share in Shemlat Deh could not be transferred or was not capable of transfer. According to the counsel for the appellants it was under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act 1954 that the land which was sold was transferred to the vendor and such land did not vest in the panchayat under the provisions of the Village Common Lands Act. None of these matters has been considered or investigated by the High Court and it appears that the decision on question of the share in the Shemlat forming the subject matter of sale was based on certain assumptions and not on the entire material on the record.
6. The next infirmity in the decision of the High Court is that on the question of delivery of physical possession it did not consider the entire evidence but largely assumed that physical possession had been delivered on the date the sale deed was executed. Even if the pre-emptors were the sons of the vendor it had to be determined as to when physical possession of all the properties which had been sold was given. A mere recital in a deed of sale may or may not be sufficient for that purpose. In our opinion the point relating to delivery of physical possession on which no finding had been given by the trial court has been disposed of by the High Court without due consideration of the entire evidence.
7. It is quite clear that the suit could be dismissed only if it was not covered by the second part of Article 10 of the Limitation Act. That could be done on a proper decision of the question whether a share in the shemlat land formed the subject matter of sale or there was any other formed the subject matter of sale or therewas any other property in the shape of taurs etc. which was not capable of physical possession. If the decision went against the appellants on that point then the next question would arise, namely, the date or point of time when the vendees took physical possession of the whole of the property sold and that would form terminus-aquo for the purpose of limitation.
8. The appeal is accordingly allowed and the decision of the High Court is set aside. The matter is remitted to the High Court for disposal of the appeal before it in accordance with law. Costs shall abide the event.