VINOD KUMAR Vs. JAGMINDER DASS

JUDGEMENT

(1.) In these three connected second appeals (R.S. As. Nos. 138, 139 and 140 of 1966) I find that the learned Court of first appeal has unfortunately made out a case which has not been pleaded by any of the parties or set up in evidence examined by them and that views and opinions have been attributed to the trial Court which had never been expressed in its judgment. The facts were made to fit a pattern so as to apply a ruling which has been relied upon and the learned Additional District Judge who decided the first appeal failed to come to grips with the real points in controversy. The finding that actual physical possession of the land sold had been delivered to the vendee prior to the execution of the sale-deed had suited the plaintiff-pre-emptor, but it was in direct conflict with the statement made by him or his father who had sold the property in dispute.

(2.) Shri Nandu Mal, father of the plaintiff-pre-emptor Jugminder Dass, owns some land which was assessed to land revenue and which bore a Khasra or field number. A part of this field was demarcated into four small building plots. These 4 plots were sold by three separate sale-deeds, Subhash Chand appellant in R.S.A. No. 139 of 1966 having purchased two plots while Vinod Kumar and Rishi Raj appellants in R.S. As. Nos. 138 and 140 of 1966 respectively had purchased a plot each. These vendee-appellants claimed to be members or co-parceners, with some others, of a joint Hindu family and Dr. Kesar Dass, D.W., who claims to have negotiated these bargains for the vendees is described as the karta or the manager of this family. The sale-deeds in favour of Subhash Chand and Vinod Kumar appellants were executed on the 30th April, 1963 though they were registered on different dates, i.e. 24th February, 1964 in the case if Subhash Chand and 9th March, 1964 in the case of Vinod Kumar. The sale-deed in favour of Rishi Raj and his minor brother was executed on the 24th June, 1963, and was registered on the 2nd May, 1964. Jugminder Dass son of the vendor Nandu Mal filed three suits to pre-empt these sales separately. All these three suits had been filed on the 5th February, 1965. All these suits would be within time if the date of registration of the sale-deed is taken as the terminus a quo. It was, however, the case of the vendee-appellants from the very start that actual physical possession of the plots had been taken under the sale in each case on the date of the execution of the sale-deed and if these dates are taken as the terminus a quo then the three suits filed by Jugminder Dass plaintiff-pre-emptor would be time-barred. The finding of the trial Court on the basis of the evidence examined by the vendees was that the vendees had started building on these plots during the months of May to July 1963 and that this amounted to notice of or knowledge to all concerned that actual physical possession had been taken by the vendees under the sale and that the period of limitation had started running from the date of taking over of actual physical possession of the plots during these months. It may be observed that these three pre-emption suits had been filed by Jugminder Dass long after the expiry of a period of one year of this alleged open assertion of the ownership rights of the vendees.

(3.) Jugminder Dass, plaintiff-pre-emptor, had pleaded in each case that the cause of action accrued to him from the date of registration of the relevant sale-deed. The plaint was silent with regard to the delivery of actual physical possession of the plots sold in each case. The plaintiff-pre-emptor had, however, appeared in the witness-box and had examined his father vendor as his witness. The position taken up in both these statements was that even after the execution and registration of the sale-deeds, the vendor had been cultivating the land and possession had been transferred to the vendees 6 to 8 months before the parties were examined as witnesses in the case. It is apparent, therefore, that the finding of the lower Appellate Court that actual physical possession of the land had been transferred to the vendees a day or so before the execution of the sale-deed or the completion of the sale is against the pleadings or the evidence of the party that stands benefited by making out on an altogether new case by the lower Appellate Court. The vendee(s) had pleaded in each that he or they had been delivered possession of the plot(s) sold on the date of the execution of the sale-deed. The vendee-appellants relied on the recital to that effect in the sale-deeds or the reports made to the Patwari with the object of having an entry made in the daily diary and the register of mutations. The reports made to the Patwar have not been proved and the recitals in these sale-deeds are not conclusive evidence against persons who were not parties to the sale-deeds. The petition-pre-emptor has relied upon Ram Chand V. Tulsi Ram etc.,1964 CLJ 50, and Thakur Singh V. Karam Singh and another, 1925 AIR(Lah) 165 in this connection. The reports to the Patwari or the recitals in the sale-deeds are however, not being taken by themselves to be proof about the date of transfer of actual physical possession of the plot under the sale in each case. The trial Court had based its finding on the point on oral and documentary evidence produced by the vendee-appellants and this evidence has not been disbelieved by the learned Court of first appeal. There could have been a demarcation or pointing out of the plots prior to the commencement of construction work on these plots by the vendees and the finding of the lower appellate Court that there had been a demarcation of the plots a day or so before the execution of the sale-deeds would not justify the upsetting of the finding of trial Court that building operations had been commenced on these plots by the vendees during the months of May to July 1963.