Suit for Possession--Right of Pre-emption--Once the delivery of possession was admitted, limitation would start running from that date and not from the date of registration of the sale deed

JUDGMENT

Mr. Amol Rattan Singh, J.:- This is an appeal filed by the defendants in a suit instituted by both the respondents herein on 21.07.1986, seeking possession of the suit property, on the ground that they had a pre-emptory right to do so.

2. The case of the plaintiffs was that the suit land, measuring 218 kanals 13 marlas, situate in the revenue estate of village Jamal, Tehsil and District Sirsa, was sold by Radha Kishan, Atma Ram and Jagdish to the appellants herein (the first appellant also ‘carrying’ the name of Jagdish Kumar), vide a registered sale deed dated 25.07.1985; and though the actual sale consideration was Rs.23,000/-, however, only to defeat the right of preemption available to the plaintiffs, a fictitious amount of Rs.45,000/- was shown to be such consideration in the sale deed.

The said land was stated to be a part of a larger holding consisting of 218 kanals 13 marlas, with the plaintiffs being co-sharers in that total land holding.

It was further contended that the plaintiffs were given no notice regarding the sale and though they approached the defendants several times to give the suit land back to them after taking the sale price paid to the vendees, they had refused to accept the request. On the aforesaid averments, the suit was instituted.

3. Notice having been issued to the appellants herein, i.e. the defendants in the suit, they filed a written statement to the effect that the suit land had actually been purchased for a sum of Rs.45,000/- and that in fact the plaintiffs had sufficient notice of the sale.

Further, it was contended that actually the land had already been partitioned before the sale and therefore the plaintiffs were no longer cosharers therein, with possession of specific killa numbers given to them (defendant-vendees) at the time that the agreement of sale was entered into with them on 04.07.1985, and consequently, the suit had not been instituted even within limitation.

It was next contended that the suit was bad on account of partial pre-emption. Lastly, it was contended that they (appellant-vendees) had incurred stamp charges, registration fees and other charges at the time of sale and therefore the suit was liable to be dismissed.

4. The plaintiffs having filed a replication reiterating their stand, controverting the contents of the written statement, the following issues were framed by the learned trial court:-

“1. Whether the plaintiffs have got a superior right to pre-empt the sale of the suit land? OPP

2. Whether the suit land was sold for a consideration of Rs.45,000? OPD

3. If issue no.2 is not proved then what was the market value of the suit land at the time of the sale of the suit land? OP Parties.

4. Whether the plaintiffs had notice of the sale of the suit land in dispute, if so, to what effect? OPD

5. Whether the suit of the plaintiffs is bad for partial preemption? OPD

6. Whether the suit of the plaintiffs is time barred? OPD

7. Whether the vendees are entitled to stamp charges, registration fees and other charges, if so, to what amount? OPD

8. Relief.”

5. A perusal of the judgment of the trial court shows that the plaintiffs relied upon a jamabandi (record of rights) for the year 1982-83 as Ex.P1, to show that they were co-sharers in the total land holding including the suit land, with Ex.P2 being a copy of the mutation entry by virtue of which they were shown to have become co-sharers at the time of purchase of the land by them from the previous co-sharer, Harchand.

A sale deed dated 25.07.1985 was also relied upon, with the 2nd plaintiff having testified as PW1 in terms of the averments made.

6. As regards the stand of the appellant-defendants, the learned trial court noticed an argument on their behalf that a private partition had already taken place between the co-sharers, before the sale of the suit land, and therefore they had no right to pre-emption on