SUBHAN MALIK Vs. AB ALI

JUDGEMENT

(1.) THIS is a civil second appeal arising out of the following facts. A suit for possession based on right of prior purchase pertaining to 2 kanals 3 marlas of land comprising Khasra No, 167 village Waripora was instituted by the respondent against Subban Malik the vendee and Mohatnmad Abdulla the vendor of this land. The sale deed was written on 23 -11 -1962 but was registered on 7 -1 -1963. The suit was filed by the plaintiff on 1 -2 -1964. The consideration entered in the sale deed was Rs. 600/ -The plaintiff claimed to be the brother of the vendor. Various pleas were raised in the written statement by the vendee. Two important among the pJeas were that the plaintiff had waived the right to pre -emption the sale and secondly that the suit was time barred. The trial court of Sub Judge Sopore held that since the plaintiff has waived his supperior right to pre -emption the land, dismissed the plaintiffs suit. In appeal before rhe District Judge Baramulla the plea of waiver was held not proved and the decree for possession on payment of Rs. 600/ - was passed in favour of the plaintiff against the defendant vendee. A further appeal was preferred to this court and his Lordship the Chief Justice by his order dated 19th July 1968 remanded the case to trial court framing an additional issue which is in the following words : - "Whether or not the defendants vendee got into physical possession of the land in question constructively or otherwise on 23 -11 -1962, the date of the execution of the sale deed and if not, about what date did1 they get into physical possession of the land ? O. P. P." The finding of the tfial court on this issue was that the vendee was not in possession of the syit land before 23 -11 -1962 and he got physical and constructive possession of the suit land only in April 1963 for the first time and the District Judge endorses this opinion.

(2.) THE only point argued by Mr. Bhan the learned counsel for the appellant before me was that the sale deed was executed on 23 -ll -1962 but was registered on 7 -1 -1963. He has referred me to Section 47 of the Registration Act which reads as under: - "A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration

(3.) ACCORDING to him even though the registration of the sale deed in question took place on 7 -1 -1963 but since the document was registered, the sale would be deemed to be operative from 23 -11 -62, therefore the suit of the plaintiff was time barred. I am afraid this argument of Mr. Bhan has no substance and I shall briefly state why but before. Before I discuss this point I have to revert to the argument of Mr. Dhar, the learned counsel for the respondent. He has argued that this point is concluded by a Judgment of the Board of Judicial Advisors, which is reported as J & K Law Reprots, Vol. VI page 113. He has further referred me to AIR 1950 All. 290 which lays down that when a vendee takes possession under a sale deed which is registered subsequently the limitation starts from the date of taking over possession. He has also referred me to 1956 Nag. 243 in which it was held that in a suit to enforce a right of pre -emption founded on a special contract with respect to the sale oi a pro -prietory share in a village together with Khudkasht lands would be governed by the residuary Art. 120 and not by Art. 10 of the Limitation Act because the subject matter of the sale was not capable of physical possession. In AIR 1961 Punjab 296 it was held that : - "The terminus a quo for a suit for pre -emption prescribed under the first part of Art. 10 Limitation Act is the date when the purchaser takes under the sale physical possession of whole of the property sold Hence if the physical possession is not taken under the sale it would not apply. In such cases the second part of Art. 10 would not apply if the sale is effected by a registered deed."