SARMUKH SINGH Vs. KARAM SINGH

JUDGEMENT

(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 bighas 3 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.