MOHAN SINGH Vs. NIRMAL SINGH

JUDGEMENT

(1.) The suit-land was sold by Lashkar Singh to Mohan Singh and Sohan Singh (hereinafter referred to as the vendees) on 5th April, 1965. The sale-deed was registered on 22nd April, 1965. Nirmal Singh (hereinafter referred to as the pre-emptor), brother of Lashkar Singh, filed the suit, out of which this appeal has arisen, for possession of the suit-land by pre-emption on 21st April, 1966. The sole question for determination urged before me is, whether the suit was filed within limitation. The trial Court decided this issue in favour of the pre-emptor, but the lower appellate Court against him. Article 97 of the Limitation Act applicable to the case in hand provides limitation of one year from the time when the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold, or, where 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. Learned counsel for the vendees has vehemently urged on the strength of a recital in the sale-deed that physical possession of the whole land was delivered to them on the date of its execution, that is, 5th April, 1965. It may be mentioned that no evidence was led in support of this recital. The only question therefore, is, whether the recital itself is enough to prove the fact against the pre-emptor whose learned counsel has invited my attention to Dharam Singh v. Kirpal Singh and others,1923 AIR(Lah) 31 in which it was held -

(2.) I am in respectful agreement with the rulings cited above and, therefore, I hold that the vendees have failed to prove that they took physical possession of the whole land on the date of the sale mentioned above. As for the evidence led by the pre-emptor that he was in possession, at the time of sale and even before that, of at least three killa numbers measuring 12 kanals and 3 marlas, the matter is concluded by finding of fact in his favour. In the result, I do not find any merit in the appeal and the same is hereby dismissed with costs.