KASHIRAM KADTU BURKULE Vs. RAJARAM DAULAT KORDE

JUDGEMENT

(1.) THIS second appeal raises a question of limitation. One Kashiram filed Civil Suit No. 96 -A of 1941 in the Court of the Second Subordinate Judge, Class II, Khamgaon, to enforce a mortgage executed by one Saburabai in respect of fields S. Nos. 2/2 and 1/1 Mouza Pimpri Korde, taluq Khamgaon. The suit was filed against the heirs and legal representatives of Saburabai, Saburabai having died before the institution of the suit. A preliminary mortgage decree was passed in 'the suit. Thereafter there was a compromise between Kashiram and the mortgagors. Pursuant to the terms of the compromise the mortgagors executed a sale deed of the mortgaged land in favour of Kashiram on June 28, 1941, for a consideration of Rs. 799. Kashiram being unable to obtain possession of the land, he filed Civil Suit No. 64 -A of 1942 against one Baliramsa for possession of the land. The suit was dis -missed by the trial Court, but it was decreed in appeal by the Nagpur High Court on October 22, 1948. In execution of that decree against Baliramsa, Kashiram obtained possession of the field S.No. 2/2 on November 12,1948. The plaintiff Rajaram Daulat filed on Noyembe 8,1949, Civil Suit No. 22I -A of 1949 in the Court of the Additional Civil Judge, Cass II, Khamgaon, against Kashiram for pre -emption and for possession of the field S. No. 2/2.

(2.) IT was the plaintiff's case that the defendant Kashiram had taken actual possession of the field on November 12,1948, in execution of the High Court decree and the suit filed within oneyear from that date was within limitation. The defendant contended that the suit was barred by limitation. He submitted that he had obtained actual possession of the land in dispute on June 28, 1941, and that he had, thereafter, been dispossessed by Baliramsa.

(3.) IN support of the appeal it is urged that the suit for pre -emption filed by the plaintiff was barred by the law of limitation. Article 10 of the Limitation Act provides a period of one year to enforce a right of pre -emption, whether the right is founded on law, general usage, or special contract and the period of limitation commences to run when the purchaser takes, under the sale sought to be impeached, physical possession of the whole of the property sold, or, where the subject of the sale does not admit of physical possession, when, the instrument of sale is registered. It may be observedthat; the learned Judges of the Courts below negatived the contention raised by the defendant that he had obtained physical possession of the field in 1941 and thereafter he had been dispossessed by Baliramsa. They have held that at the date of the sale -deed Baliramsa was in possession as a trespasser, and it was only after the decree was passed by the High Court in second appeal, that the plaintiff obtained possession in enforcement of the decree. Admittedly on the finding of the Courts below on the date of the sale -deed in favour of the defendant the land in dispute was in the occupation though unlawfully of Baliramsa. By the sale -deed the vendors Punjabai and Sakharam purported to put Kashiram in possession of the land. It was recited in the sale -deed (exh. P -3) : We have this day sold the land described below without encumbrances and possession of the land sold is delivered to you. It was also recited: -Hence, we have delivered possession of the land sold to you in order to free ourselves from our debt.