Sukhnandan Singh Vs. Jamiat Singh
& Ors [1971] INSC 54 (18 February 1971)
DUA, I.D.
DUA, I.D.
BHARGAVA, VISHISHTHA
CITATION: 1971 AIR 1158 1971 SCR (3) 784 1971
SCC (1) 707
ACT:
Pre-emption Suit for-Collusion-Suit by sons
of Vendors for pre-emption-Plaintiffs and vendors residing and messing together
and expenses of litigation being paid by vendors-If sufficient to establish
collusion.
Limitation Act 1908-Article 10-Suit for
Pre-emptionLimitation-Parr of the land sold in the hands of tenantsStarting point
of Imitation-"Physical possession", meaning.
HEADNOTE:
In a suit for pre-emption by the sons of the
vendors of certain land the vendees pleaded collusive nature of the suit and
limitation. The trial ,court found that the vendors and the plaintiffs resided
and messed together and the expenses of the litigation were paid by the
vendors.
From this it was concluded that the suit had
been filled by the plaintiffs at the instance of and in collusion with the
vendors and therefore the plaintiffs were held 'to the estopped from exercising
their right of pre-emption. On the question of limitation the trial court held
that the vendors, and not their tenants. were in possession of the land sold,
that possession of the land was delivered to the vendees on the date of the
sale and therefore the suit was barred by limitation. The first appellate Court
reversed the finding of the trial court on both the pleas. In regard to the
plea of limitation it held that a part of the land sold was in possession of
tenants and, therefore, it did not admit of physical possession which meant
immediate personal possession. In that view of the matter, under Section 10 of
the Limitation Act, 1908 the terminus a quo was the date of registration of the
,ale deed and therefore within the one year limitation under Article 10. The
High Court affirmed this decision. In appeal to this Court,
HELD : dismissing the appeal, (i) On the
facts of. the present case there was absolutely no material on which the
plaintiffs could be held to have lost their right of preemption on the ground
of collusion.
Merely because the vendors. the fathers of
the plaintiffs, were helping their sons to exercise the statutory right conferred
on the sons could not without more, deprive them of the right to be substituted
for the vendees in exercise of their right of pre-emption. '[788 F] (ii) On the
finding of the District Judge and the High Court physical possession of the
whole of the property sold was not taken by the vendees on the date of sale.
Therefore the first part of Article 10 of the Limitation Act does not apply.
The second part of Article 10 covers cases where the subject of the sale, which
means the whole of the property Sold does not admit of physical possession and
that would be so where a part of the land in the possession of tenants.
The argument that use of the expression
"subject to the sale" suggests that this Article would apply only if
the entire and not only a part of the land is in the possession of the tenants
is not acceptable. [789 C] In the present case the properties in the hands of
tenants have to he held to be incapable of "Physical possession"
which means personal and immediate possession.
785 Botul Begam v. Mansur Ali Khan, I.L.R. 24
All-17 and Ghulam Mustafa v. Shahabuddin, 49 P.R. 11908, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1729 of 1967.
Appeal by special leave from the judgment and
decree dated October 17, 1967, of the Punjab and Haryana High Court in Regular
Second Appeal No. 822 of 1965.
K. L. Gosain and Naunit Lal, for the
appellants.
Purushottam Chatterjee and D. D. Sharma, for
the respondents.
The Judgment of the Court was delivered by
Dua, J. In this appeal by special leave from the judgment and decree of a
learned single Judge of the Punjab and Haryana High Court arising out of a
pre-emption suit only two questions were raised by the learned counsel for the
appellants who were vendees-defendants in the trial court.
The suit was instituted by the three sons of
three vendors who were real brothers, and the two points canvassed in this
Court challenge the decisions of the High Court and of the court of the
District Judge on issues 6 and 7. Those issues are "6. Is the Stilt
collusive ? If so, its effect.
7. Is the suit within time Both these issues
were decided by the trial court against the plaintiffs but the District Judge
on appeal reversed the decision of the trial court on both the issues and the
High Court on second appeal affirmed the decision of the first appellate court.
The relevant facts may now be stated in
brief. Kartar Singh, Bachan Singh and Sardara Singh, sons of Sohel Singh,
claiming to be co-sharers, agreed on September 19, 1961, to sell 193 kanals and
15 marlas of land to Sukhnandan Singh, Sukhminder Singh and Balkar Singh sons
Gurdev Singh in equal shares. 1/3rd share, Gurminder Singh and Gurpakh Singh
sons of Teja Singh in equal shares, 1/3rdshare, Gurdas Singh son of Angrez
Singh. 1/3rd share at the rate of Rs. 840/per bigha. A sum of Rs. 7,000/was
received in cash as earnest money. On December 6, 1961 a formal sale deed was executed
with some variations in shares and also with addition of Smt. Chand Kaur, wife
of Sardar Inder Singh as one more co-vendee. The sale price was stated to be
Rs.
32,550/-. Possession of the land sold was
stated to have been delivered and it was also recited that consolidation
proceedings under s. 21 (1) of the Consolidation Act had been completed but
further proceedings in favour of the vendees would be taken after the
proceedings which might be taken under 786 s. 21(2). This sale deed was duly
registered on March 9, 1962.
The suit for pre-emption by the three sons of
three vendors was instituted on March 6, 1963. It was contested by the vendees.
The pleadings of the parties gave rise to several issues but we are only
concerned with the issues relating to the pleas of collusive nature of the suit
and limitation.
The trial court disposed of the issues nos. 5
and 6, relating respectively to waiver of the right of pre-emption by the
plaintiffs and to the collusive nature of the suit by dealing with them
together., Photographs showing the plaintiffs and the vendors being together
along with the plaintiffs' counsel in the court compound during the course of
this litigation were produced as evidence in the case.
Exhibit p-2 a certified copy of the Register
of Consolidation Proceedings, produced by the plaintiffs in evidence showed
that this copy had been prepared at the instance of Kartar Singh, one of the
vendors and father of Jamiat Singh, plaintiff. According to the trial court
there was also evidence that the plaintiffs and the vendors resided and messed
together. On consideration of this material the trial court held that the
vendors and the preemptors resided and messed together and the expenses of the
litigation were paid by the vendors. From this it concluded that the suit had
been filed by the plaintiffs. at the instance of and in collusion with the
vendors. The right of pre-emption being a practical right, according to the
trial court, to quote its own words "it is necessary that the preemptors
must not act in collusion with vendors or act in bad faith." The
plaintiffs were on this reasoning held to be estopped from exercising their
right of pre-emption. On the question of limitation the trial court held that
the vendors' and not their tenants were in possession of he land sold, which
had been allotted to them in the consolidation proceedings and the possession
of that land was delivered to the vendees on the date of the sale. The suit was
accordingly held to be barred by time. The suit was dismissed for all these
reasons.
On appeal by the plaintiffs the District
Judge reversed the conclusion of the trial court both on the point of estoppel
or collusion and of limitation. According to that court in order to prove collusion
the defendant has to prove that the suit was being-fought for the vendor's
benefit, the normal presumption being that the plaintiff sues for his own
benefit. In support of this view several decisions were relied upon by the
District Judge. In the present case, according to the learned District Judge,
the plaintiff Jamiat Singh had clearly stated that he was pre-empting the
present sale with his own earnings and the learned District Judge found no
rebuttal to this assertion. Neither the fact that Ex. P-2 had been obtained by
one of the vendors nor the fact that the vendors were present in the court
compound with the plaintiffs and their counsel during the course of litigation
indicated that the present suit had necessarily 787 been instituted for the
benefit of the vendors. this reasoning the decision on the collusive nature of
the suit which must result in its dismissal was reversed. In regard to the
limitation also the learned District Judge concluded, in disagreement with the
trial court, that a part of the land sold was in possession of tenants, and,
therefore, it did not admit of physical possession, which means immediate
personal possession. In that view of the matter under Art.
10 of the Indian Limitation Act, 1908 the
terminus a quo was 'the date of registration of the sale deed. The suit was
thus held to have been instituted within one year from the date of registration
and, therefore, within limitation under Art. 10. The judgment and decree of the
trial court was reversed and the suit decreed.
On second appeal a learned single Judge of
the Punjab and Haryana High Court held that there was no clear and reliable
evidence that the vendor and their son were united in mess and estate. The
other two circumstances, namely, that the vendors and the plaintiffs along with
their counsel were seen together in court compound and that Ex. P-2 had been
obtained by one of the vendors one day before the institution of the suit, were
not considered sufficient to establish the collusive nature of the suit. In regard
to the statement of Jamiat Singh the High Court undoubtedly felt unimpressed by
his statement but we do not thinking was open to that court on second appeal to
appraise the credibility of the testimony which was believed by the final court
of fact when there' was no illegality in the appraisal of the testimony by the
District Judge and it was open to him to take the view 'he did. Jamiat Singh
had stated that he was separated from his father since about three years and
that he was spending on the litigation from what little amount he earned. The
matter was not pursued in cross examination as to what was the source of his
earnings. Even after feeling unimpressed 'by the statement of Jamiat Singh, the
High Court came to the conclusion that it was for the vendees to establish the
collusive nature of the plaintiffs' suit' On the evidence produced the District
Judge having come to the conclusion that they had failed to discharge this onus
this conclusion was one of fact and not being vitiated by and error of law it
was held binding on second appeal.
The contention that the District Judge was
wrong in holding that a part of the land soldWas in possession of the tenant at
the time of the sale was also reppled. The conclusion of the District Judge
that field no. 24/21 out of the suit land was under the cultivation of Bahadur
Singh a tenant at will, as was clear Ex. X-4, a copy of Khasra Girdwari
relating to Rabi 1962 and Kharif 1962 was also held to be a finding of fact
binding on second appeal.
This document was not shown to have been
misread by 788 the first appellate court, On this finding Art, 10 of theIndian
Limitation Act, 1908, and not S. 30 of the Punjab Pre-emption Act, was held
applicable and the suit, was thus considered to) be within limitation. For this
view reliance was placed on two decisions of the Punjab Chief Court and a Bench
decision of the Nagpur High Court. The appeal was, however, partly accepted by
raising the pre-emption money by an additional sum; of Rs. 4, 133.50.
In this Court again the learned counsel for
the appellant vendees pressed the points of collusion and limitation. We, are,
however, unable to find merit in either of them' So far as the question of
collusion is concern it was not clarified by the learned counsel how the plaintiffs
could be held to have lost their right of pre-emption merely because their
fathers either came to the court with them, which they did openly, or allowed
their sons as plaintiffs to use in court, copy of a public document procured by
the father of one of the plaintiffs. Collusion in judicial proceedings is
normally associated with secret arrangement between two persons that the one
should institute a suit against the:
other in order to obtain the, decision of a
judicial tribunal', for some sinister purpose., In such a proceeding the claim
put forward is fictitious, the contest-feigned or unreal and the final
adjudication a mask designed to give false appearance of, a genuine judicial
determination, and this is generally done with the object of confounding third
parties. In such a proceeding the contest is a mere sham. In the case of
pre-emption it is open to the plaintiff to find financial aid from any source
he likes.
He has a statutory right to preempt the sale
and it is no concern of the vendees whether the borrows money from someone or
otherwise arranges for finances for preempting the sale. It is true that it is
a personal right 'and is not capable of being transferred. And the right of preemption
being A right of substitution the vendor also cannot in the garb of a benamidar
pre-empt his own sale-.' But merely because the vendors who are the fathers of
the plaintiff preemptors 'are helping their sons to exercise the statutory
right conferred on the sons cannot, without more deprive them of the right to
be substituted for the vendees in exercise of their rightof pre-emption. The
property pre-empted, if they were, successful, will belong to them and not to
their fathers who were-the vendors. Even, in the wider sense of the word
"collusion", which suggests a deceitful agreement or compact between
two or more persons to do some act in order to prejudice a third Persons or for
some improper purpose would not apply to the present case so as to operate as
estoppel against the plaintiffs.
Whether or not a preeptor-plaintiff who is a
benamidar for the vendors or some other party losses his right because of being
a benamidar is a question which does not concern us in this case and we express
no opinion thereon. On the facts of the present case there is absolutely no 789
material on which the plaintiffs can be held to have lost their right of
pre-emption on the ground of collusion.
The next point relates to the plea of
limitation. Article 10 of the Second Schedule of the' India Limitation Act
provides a period of one year to enforce a right of preemption whether founded
on law or general usage or on special contract, 'the terminus a quo being the
date when the purchaser takes under the sale, sought to be preempted, physical
possession of the whole of the property sold or where the subject of the sale
does not admit of physical possession, the date when the instrument of, sale is
registered. Section 30 of the Punhjab Pre-Emption Act applies only when the
cases does not fall within Art. 10.
On the finding of the District Judge and of
the High Court it is obvious that physical possession of the whole of the
property sold was not taken, by the vendees, on the date of sale. Therefore,
the first part of article does not apply.
According to the appellants' counsel the land
sold does admit of physical possession and if a part of the land has been taken
into possession by the vendees then Art. 10 would be inapplicable and S. 30 of
the Punjab Pre-emption Act would be attracted. In that case the terminus a quo
according to Shri Gosain would be the date on which the vendees took under the
sale physical possession of any part of such land. The argument in our view in
misconceived.
The second part of Art. 10, in our opinion,
covers cases where the subject of the sale, which means the whole of the
property sold, does not admit of physical possession and that would be so when
a part of the land is in the possession of the tenants. The argument that use
of the expression "subject of the sale" suggests that this article
would apply only if the entire and not only a part of the land is in the
possession of the tenants is not acceptable.
The expression "physical
possession" came up for construction before the Privy Council in Batut
Begam v.Mansur Ali Khan(1) Lord Robertson speaking for the Judicial Committee
said "What has to be considered is as the High Court accurately
formulated, the question, does the property admit of physical possession ? The
word "physical" is of itself a strong word, highly restrictive of the
kind of possession indicated; and when it is found as is pointed out by the
High Court, that the Legislature has in successive enactments about the
limitation of such suits gone on strengthening the language used,-first in 1859
prescribing "possession" then in 1871 requiring "actual
possession" and finally in 1877 substituting the word "physical"
and "actual", it is seen that that word has (1) I.L.R.C4 All. 17 790
been very deliberately chosen and for a restrictive purpose. Their Lordships
are of opinion that tile high Courts are right in the conclusion' they have
stated., their Lordships consider that the expression used by Stuart, C.J., in
regard to the words "actual possession is applicable with still more
certainty to the words "physical possession " and that what is meant
is a "personal and immediate" possession." This view has ever
since then been followed by the High Courts in India. No decision holding to
the contrary was brought to our notice. Indeed, Shri Gosain virtually conceded
that there was none to his knowledge. The properties in possession of tenants
have on this reasoning to be held to be incapable of physical possession which
means personal and immediate possession. It was so held in Ghulam Mustafa v.
Shahabuddin(1). In that case the Full Bench of the Punjab Chief Court approved
of some of its earlier decision overruling the dictum is one of the earlier
decisions of that Court. This view has consistently held the fold in the Punjab
and we do not find any cogent reason for disagreeing and upsetting it. If the
date of registration of the sale deed be the terminus a quo then indisputably
the suit must be held to be within limitation.
These being the only two points agitated
before us this appeal must fail and is dismised with costs.
R.K.P.S. Appeal dismissed.
(1) 49 P.R. 1908 (F.B.).
Back
