JUGAL KISHORE Vs. SMT. ANNAPURNA DEVI AND ANR.

JUDGEMENT

(1.) THIS Second Appeal has been filed by the plaintiff who has lost from both the Courts below. The plaintiff appellant filed Original Suit No. 39 of 1976 for preemption in respect of a house purchased by defendant No. 1 from defendant No. 2 and for execution of the sale deed by defendant No. 1 in favour of the plaintiff and also for injunction against defendant No. 1. It was stated that on 1.6.1975 the plaintiff came to know that the defendant No. 1 had purchased the house from defendant No. 2 and since the custom of pre -emption prevailed in the city of Banaras, he immediately sent a notice to defendant No. 1 asking her to transfer the said house but defendant No. 1 did not agree. The defendant no. 1 filed a written statement and denied that there was any custom of pre -emption and even if it was so the same was void being repugnant to the fundamental rights guaranteed under the Constitution of India. It was further pleaded that the suit was barred by time and that there was no right of easement. The Trial Court framed a number of issues. As regards whether the suit was barred by time, the Trial Court decided the issue against the plaintiff and held that the suit was barred by time. As regards the issue whether the plaintiff was entitled to pre -empt the premises for a consideration of Rs. 10,000 the Trial Court found that the custom of pre -emption amongst non -Muslims in the city of Benaras existed but the formalities required for claiming and enforcing the right of pre -emption were actually not performed. The Trial Court also recorded a finding that the sale deed had been executed for a consideration of Rs. 16,800 and, therefore, there was no question of the plaintiff claiming preemption for a consideration of Rs. 10,000 only. As regards the issue whether the plaintiff had a right of easement of light and air through the doors and the windows, the Trial Court recorded a finding against the plaintiff and held that he could not prove that he had acquired such rights. It accordingly dismissed the suit. The Appellate Court dismissed the appeal agreeing with the Trial Court that the suit was barred by time; that the plaintiff had not completed the formalities required for pre -emption or that he had any right of easement as claimed by him.

(2.) LEARNED Senior Counsel for the appellant Sri Siddheshwari Prasad contended that the findings recorded by the two Courts below that the suit was barred by limitation is incorrect and is not in accordance with Article 97 of the Limitation Act, 1963 (hereinafter referred to as the 'Act'). He, in order to elaborate his submissions, placed the provisions of Article 97 of the Act which are as follows: - -

(3.) LEARNED Senior Counsel appearing for the appellant submitted that the period of one year begins to run when the purchaser takes under the sale sought to be impeached physical possession of the whole or part of the property sold. He further submitted that the disputed premises were actually in possession of Shyam Lal Kakkar who was a tenant and only when he vacated the house on 1.6.1975, the physical possession of the house could have been taken and, therefore, the suit was within time. He further contended that even the defendants had stated that they started living in the disputed house only in the month of November, 1975.