Possession taken by a vendee prior to the sale cannot be considered as one "under the sale" for the purpose of determining the limitation for a suit for pre-emption.

Gurdev Singh, J.

1. On the 10th of June, 1958, the appellant Bai Chander Mani brought a suit for pre-empting the sale of agricultural land situate in village Murari Pur, District Narnaul, by her father Hari Ram and her mother Kushalya Devi for Rs. 4,000/- in favour of Bhagirath defendant No. 1 vide sale deed dated the 30th of May, 1957. She claimed right of pre-emption on the plea that she was the daughter of the vendors. She disputed the sale price and prayed for a decree in her favour on payment of Rs. 1,800/- only, on the allegation that the remaining sale consideration has been fictitiously entered in the sale-deed. The vendee, while contesting the suit, denied the plaintiffs preferential right of pre-emption and also asserted that the entire consideration of Rs. 4,000/- mentioned in the sale deed had been paid nor was it the market price of the properly in dispute. He further pleaded that the suit was barred by time. On trial of the relevant issues the learned Subordinate Judge found that the consideration of the sale was only Rs. 3,700/- and this was also the market price of the property in suit. He, however, dismissed the suit as barred by time.

2. The plaintiff went up in appeal to the learned District Judge. The question of limitation alone was agitated before that Court but the learned District Judge agreed with the findings of the trial Court and dismissed the appeal holding that the plaintiffs suit had been rightly dismissed as barred by time. It is against this judgment and decree of the learned District Judge dated the 24th of December, 1959, that Bat Chander Mani has come up in second appeal to this Court and the only question for consideration before me is whether Or not the plaintiffs suit was barred by time.

3. The facts necessary for the decision of this question are as follows, and they are not disputed. The sale was effected by means of a written agreement between the parties. The sale deed was executed on the 30th of May, 1957, and the same day it was presented to the Sub-Registrar for registration. The Sub-Registrar, however, recorded the statements of the parties concerned that very day, but it was only on the 12th of June, 1957, that he endorsed a certificate of registration on the sale deed itself and registered the document.

The suit out of which this appeal has arisen was instituted by Bai Chander Mani on the 10th of June, 1958. It is also common case of both the parties, as admitted by their learned counsel before me, that prior to the 12th of June, 1957 (when the sale deed was duly registered) the vendee had taken possession of the property. The finding of both the Courts below is also to the effect that the possession of the property was taken by the purchaser "on or before the 30th May 1957".

I regret to say that this finding is not definite. When the question of limitation was involved and the decision depended up the date of taking possession of the property in dispute it was the duty of the Courts below to give a definite finding regarding the date on which the possession passed from the vendors to the vendee. The learned counsel for the parties have, however, taken me through the entire evidence and the appellants learned counsel has also relied upon the evidence of the witnesses produced by the defendant, namely. Ram Kumar D. W. 1, Hardev D. W. 2, Bhani Sahia D. W. 4 and Bhagirath D. W. 5 all of whom were unanimous in deposing that the possession was taken by the vendor "one day prior to the registration".

The parties counsel, however, agree that in the context in which the word "registration" has been used by these rustic witnesses they meant by it the date on which the sale-deed was presented to the sub-Registrar for registration i.e. the 30th of May, 1957, and not the date (i.e. the 12th of June 1957), on which the Sub-Registrar recorded his certificate on the sale-deed itself in the presence of the witnesses.

On this point there is no difference between the learned counsel for b