JAI KARAN Vs. BABU AND ORS.

JUDGEMENT

(1.) This is a Plaintiff's second appeal arising out of a suit for pre -emption.

(2.) Chhanga Ram sold the land in dispute to Udho by a sale deed dated October 23, 1961, for a sum of Rs. 400/ -. The sale deed was registered on October 24, 1961. The Appellant claimed that he enjoyed a superior right of pre -emption by virtue of being a co -sharer and tenant in the land. On July 2, 1966, he filed the suit, out of which the present appeal arises, for pre -emption on payment of Rs. 50/ - which, he alleged, was the price actually paid. As Udho had died meanwhile, the suit was filed against this three sons and the widow of a deceased son. He claimed extension of limitation under Sec. 17 of the Limitation Act on the plea that the Respondents had practised fraud on him and thereby kept him from knowledge of his right to sue. The suit was resisted on the ground, inter alia, that it was barred by time. The trial court framed an issue on the plea of limitation and on April 29, 1968, it dismissed the suit as barred by time. An appeal filed by the Appellant against the trial court decree was dismissed on August 29, 1969, by the learned Additional District Judge, Kangra Division at Dharamsala. The present second appeal was then filed by the Appellant, and on December 17, 1970, a learned single Judge of the Himachal Bench of the Delhi High Court made an order remitting three issues to the learned Additional District Judge for his findings thereon. The three issues are:

(3.) By an order dated May 9, 1975, the learned District Judge returned his findings on the aforesaid issues. On the first issue he has found that the vendee Udho had been in possession since long as an occupancy tenant, that the land in suit measuring one kanal two marlas was a part of a larger holding jointly owned along with others, that no specific area had been shown either in the sale deed or in the revenue record entries as having been sold to Udho, and no mutation had been incorporated in the revenue record showing the area sold under the sale, that while the possession of Udho could be construed as symbolic joint possession only it could not be said that he had taken physical possession of the property under the sale inasmuch as actual possession to Udho could proceed only on partition of the joint holding. On the second issue the learned District Judge observed that as the sale was in respect of a part of the joint share represented by khasra numbers, it was not capable of physical possession and therefore it was Article 10 of Schedule II of the Limitation Act, and not Sec. 30 of the Punjab Pre -emption Act, which was attracted. On the third issue the learned District Judge held that even if it be held that Article 10 of Schedule II of the Limitation Act had no application no mutation had taken place in consequence of the sale and the vendee had not taken possession of part or whole of the property sold under the sale.