Dhanno vs Lehna Singh And Ors.

1. A suit instituted by respondent nos. 1 and 2 claiming pre-emption in respect of a transaction of sale of land under a registered sale deed executed on June 12, 1979 was dismissed by the trial court on the ground that the suit was barred by limitation though the trial court negatived the other contentions raised by the appellant-defendant. The lower appellate court reversed the decision rendered by the trial court and came to the conclusion that the suit was within limitation. Accordingly, the suit of respondent Nos. 1 and 2 was decreed. The appellant approached the High Court by way of second appeal. The High Court dismissed the appeal in limine. Thereupon the original defendant No. 2

in whose favour the sale deed was executed by the original owner has approached this Court by way of present appeal by special leave.

2. In so far as the point of limitation is concerned, the relevant provision is embodied in Article 97 of the Indian Limitation Act which reads thus:

97. To enforce a right of pre-emption When the whether the right is founded on Law or One year purchaser takes general usage or on special contract. under the sale sought to be impeached physical possession of the whole or part of the property sold, or whether 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.

3. The trial court has recorded a finding to the effect that the suit was time-barred on the premise that physical possession of the land in question was made over by the vendor to the vendee on the date on which the sale deed was executed that is to say on June 12, 1979, oh the basis of a recital contained in the sale deed. It was overlooked that the appellant in his written statement had not raised any plea on the premise that the possession of the land in question had been handed over to him on that day. And that the suit was time-barred by reason thereof, having regard to the fact that the suit was instituted one year after the said date of taking possession. Not only such a plea was not raised but the appellant did not even step into the witness box to testify that he had secured the physical possession of the land in question on June 12, 1979. As a matter of fact what was sold was an undivided one-half share in the land. Under the circumstances the trial court was not justified in upholding the plea that the suit was barred by limitation it having been instituted on 16-7-80. The lower appellate court has rightly taken into account the relevant provision embodied in Article 97 of the Indian Limitation Act which provides to the effect that where physical possession of the land is not capable of being handed over the limitation would commence on the expiry of one year from the date of the registration of the document. Admittedly, the document was registered on July 14, 1979. The suit could therefore have been instituted till July 13, 1980. But the courts were closed on account of summer vacation on that day. The suit was instituted on the first day of the reopening of the court on July 16, 1980. Under the circumstances, we are of the opinion that the view taken by the lower appellate court was unexceptionable and the suit instituted by respondent Nos. 1 and 2 was rightly decreed. The High Court was accordingly fully justified in dismissing the appeal.

4. We are told that the respondent No. 1 and 2 have already deposited the decreetal amount of Rs. 54,650/- in the trial court pursuant to the direction of the lower appellate court and that it has been deposited in a Bank. The aforesaid amount along with the interest, if any, which may have been credited to the account in the Bank, can now be withdrawn by the appellant.

5. We accordingly dismiss the appeal with the aforesaid observation. No costs.