Judgment

DUA, J.: - In this appeal by special leave from the judgment and decree of a learned single Judge of the Punjab and Harvana 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 the 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 suit collusive? It so, 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.

2. The relevant facts may now be stated in brief. Kartar Singh, Bachan Singh and Sardara Singh, sons of Sohel Singh, claiming to be cosharers, agreed on September 19, 1961, to sell 193 Kanals and 15 marlas of land to Sukhnandan Singh, Sukhminder Singh and Balkar Singh sons of Gurdev Singh in equal shares, 1/3rd share, Gurminder Singh and Gurpakh Singh sons of Teja Singh in equal shares, 1/3rd share, 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 the 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 Section 21 (1) of the Consolidation Act had been completed but further proceedings in favour of the vendees would be taken after the proceeding which might be taken under Sec. 21 (2). This sale deed was duly registered on March 9, 1962.

3. The suit for pre-emption bar the three sons of the 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 pre-emptors 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 piratical right, according to the trial Court, to quote its own words "it is necessary that the pre-emptors 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 the 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