Citation Codes

Equivalent Citations

citation codes

Case Number

Second Appeal No. 1155 of 1965

Attorney(S)

B. S. Jawanda
R. L. Aggarwal for A. C. Hoshiarpuri
for Respondent No. 1

Judges

P.C Pandit, J.

Acts

Punjab Viilage Common Lands Regulation Act, 1953,
provisions of Order 41, Rule 33 of the CPC
Act XV, Schedule II, of the Limitation Act,
Article 10 of the Limitation Act.
Order 41, Rule 33 of the CPC,

See more information ...

Smart Summary

Summary of Opinion — Regular Second Appeals Nos. 1155 & 1212 of 1965

Factual and Procedural Background

On 2 August 1961 Dhera Singh executed a sale (Exhibit D.2) of agricultural land (22 kanals 6 marlas) in village Moranwali, District Hoshiarpur, together with a share in the Shamilat Deh Patti and a one-third share in the well known as Nurpurwala with Persian wheel, in favour of Birkha Singh and three brothers (sons of Harnam Singh). The sale-deed was registered on 8 November 1962.

Two suits for pre-emption arose and were consolidated by the trial Court: one by Surjan Singh (filed 18 August 1962) claiming relationship as father's brother's son of the vendor; the other by Jagat Singh (filed 21 September 1963) alleging he was the son of the vendor. The vendees pleaded, inter alia, that the sale and delivery of possession occurred on 2 August 1961 and that the pre-emption suits were therefore barred by the one-year limitation period.

The trial Court accepted the vendees' limitation plea and dismissed both suits. Only Surjan Singh appealed to the learned Senior Subordinate Judge; Jagat Singh did not file an appeal but was made respondent in Surjan Singh's appeal and moved an application under Order 41, Rule 33 of the CPC seeking relief in that appeal. The learned Senior Subordinate Judge held that (i) the subject-matter included Shamilat interests not susceptible to physical possession and therefore Article 10 of the Limitation Act applied (limitation running from registration date), and (ii) Jagat Singh's application under Order 41, Rule 33 CPC lacked merit because his interests were distinct and he had not appealed from the trial Court's dismissal of his own suit. The Senior Subordinate Judge accepted Surjan Singh's appeal and decreed his suit on payment of Rs. 9,000.

Two second appeals to this Court followed: by the vendees (Regular Second Appeal No. 1155 of 1965) and by Jagat Singh (Regular Second Appeal No. 1212 of 1965).

Legal Issues Presented

Whether the pre-emption suits were barred by limitation because possession of the entire property was delivered to the vendees on the date of sale (2 August 1961), or whether Article 10 of the Limitation Act applied because part of the subject-matter (a share in Shamilat Deh Patti and part of a well) was not capable of physical possession, thus making limitation run from the date of registration (8 November 1962).
Whether Jagat Singh, having not appealed from the trial Court's dismissal of his own suit, could obtain relief by way of an application under Order 41, Rule 33 CPC in the appeal instituted by Surjan Singh (i.e., whether Order 41, Rule 33 CPC could be used to secure a decree in Jagat Singh's favour in another person's appeal).
Whether a second appeal by Jagat Singh was competent where he had not been a party against whom a decree of the lower appellate Court had been passed (i.e., whether the impugned order was a decree appealable by way of second appeal).

Arguments of the Parties

Vendees' Arguments

The sale-deed itself recorded that possession of the property sold was delivered to the vendees on the date of sale (2 August 1961).
Admissions by the pre-emptor Surjan Singh and by Harnam Singh (father acting for his sons) indicated that the vendees were in possession from the date of sale, and no part of the property remained with the vendor, so the pre-emption suits should have been filed within one year from 2 August 1961 (the date of physical possession).
It was contended (in argument on appeal) that, because of the Punjab Village Common Lands Regulation Act, 1953, there was in fact no Shamilat Patti in existence in August 1961, and accordingly the point that Shamilat was part of the sale should not be allowed (this point was raised before this Court but not below).

Pre-emptor Surjan Singh's Arguments

Some of the properties sold were not capable of delivery of physical possession; therefore, under Article 10 of the Limitation Act the period of limitation for pre-emption runs from the date of registration of the sale-deed (8 November 1962).
He filed his suit on 18 August 1962, which was within one year of registration and thus within limitation if Article 10 applied.

Jagat Singh's Contentions

Jagat Singh applied under Order 41, Rule 33 CPC in the appeal filed by Surjan Singh, asserting entitlement to possession by pre-emption and seeking an order in his favour in that appeal although he had not himself appealed against the trial Court's dismissal of his suit; he relied on consolidation of suits at trial and on his suit being within limitation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Maluk Singh v. Muhammad, 65 Pun Re. 1889	Where a sale includes a share in the Shamilat, the whole subject-matter is not capable of physical possession within the meaning of Act XV, Schedule II of the Limitation Act; limitation runs from registration (one year).	The Court relied on this ruling to hold that because the sale included a share in the Shamilat Deh Patti, Article 10 of the Limitation Act applied and limitation ran from the date of registration of the sale-deed.
Lehna Singh v. Bhagat Singh, 68 Pun Re. 1918; AIR 1918 Lah 383	Followed the principle that inclusion of Shamilat in a sale renders the whole subject-matter incapable of physical possession for limitation purposes.	The Court followed this authority as supporting the application of Article 10 and the conclusion that the pre-emption suits were within limitation when filed within one year of registration.

Court's Reasoning and Analysis

The Court proceeded in two distinct analytical strands corresponding to the two appeals.

First, on the limitation issue raised by the vendees: the Court observed that the sale included a share in the Shamilat Deh Patti and therefore the aggregate subject-matter could not be said to be susceptible of physical possession within the meaning of Article 10 (Act XV, Schedule II of the Limitation Act). The Court relied on earlier authoritative decisions (Maluk Singh v. Muhammad and Lehna Singh v. Bhagat Singh) holding that inclusion of Shamilat interests brings the transaction within Article 10 and makes the period of limitation one year from registration of the sale-deed. Consequently, the Court concluded that the learned Senior Subordinate Judge had correctly held that Surjan Singh's suit (filed 18 August 1962) was within limitation (being within one year of registration on 8 November 1962).

The Court also considered and rejected the vendees' late-raised point that there was no Shamilat in existence by reason of the Punjab Village Common Lands Regulation Act, 1953. That factual/legal contention had not been taken in the written statement or in the Courts below and was not included in the grounds of appeal in this Court; moreover, the sale-deed itself recorded a sale of a share in the Shamilat Patti and had been accepted by the vendees. For these reasons the Court declined to permit the vendees to raise the point for the first time in the second appeal, particularly as determination of that point might involve questions of fact.

Second, on the appeal by Jagat Singh: the Court analysed the competence of the second appeal and the scope of Order 41, Rule 33 CPC. It held that Jagat Singh's application under Order 41, Rule 33 before the learned Senior Subordinate Judge had been dismissed and that no decree had been passed against him by the lower appellate Court. A second appeal lies only from a decree of the lower appellate Court; since Jagat Singh had not appealed from the trial Court's dismissal of his own suit, that trial-court decision became final as against him. The Court explained that, had Jagat Singh wished to challenge the rejection of his Order 41, Rule 33 application by the learned Senior Subordinate Judge, he could have filed a revision petition but not a second appeal. Further, the Court reasoned that granting Jagat Singh relief under Order 41, Rule 33 in the appeal instituted by Surjan Singh would have the effect of decreeing Jagat Singh's suit (which had become final against him) in preference to Surjan Singh — a result incompatible with the separate and distinct rights and interests asserted by each pre-emptor and not sanctioned where one pre-emptor did not prosecute an appeal from the trial Court's dismissal of his own suit.

On these bases the Court found the learned Senior Subordinate Judge's rejection of Jagat Singh's application to be correct and held Jagat Singh's second appeal to be incompetent and otherwise without merit.

Holding and Implications

Holding:

The Court's final determinations were as follows:

The appeal filed by the vendees (Regular Second Appeal No. 1155 of 1965) is dismissed. The Court upheld the finding that the sale included a share in Shamilat Deh Patti such that Article 10 of the Limitation Act applied and the pre-emption suit of Surjan Singh was within limitation.
The appeal filed by Jagat Singh (Regular Second Appeal No. 1212 of 1965) is dismissed. The Court held the second appeal to be incompetent because Jagat Singh had not appealed from the trial Court's dismissal of his suit; his application under Order 41, Rule 33 CPC had been correctly rejected by the lower appellate Court, and a second appeal does not lie against that order.

Implications:

Direct effect on the parties: Surjan Singh's suit was held to have been brought within time (as already decreed by the learned Senior Subordinate Judge on payment of Rs. 9,000) and the vendees' challenge to that result was dismissed. Jagat Singh cannot obtain a decree in his favour via the other party's appeal where he did not himself appeal from the trial Court, and his attempt to do so by second appeal failed as incompetent.
Costs: in both appeals the parties were directed to bear their own costs in this Court.
No broader change to principle was announced; the Court followed existing authorities (as cited) and applied them to the facts of this case. The opinion does not purport to lay down any new precedent beyond the application of the cited authorities to the present facts.

Result: Appeals dismissed.

Show full summary ...

Kirpal Singh And Others v. Surjan Singh And Others

1. This order will dispose of two connected Regular Second Appeals Nos. 1155 and 1212 of 1965. On 2nd August, 1961, by means of a deed. Exhibit D. 2, Dhera Singh sold agricultural land measuring 22 kanals 6 marlas situate in village Moranwali, District Hoshiarpur, along with share in the Shamilat Deh Patti and one-third share in the well known as Nurpurwala with Persian wheel for Rs. 10,000/-, in favour of Birkha Singh and his three brothers Kirpal Singh, Harjit Singh and Sansar Singh, sons of Harnam Singh. The sale-deed was registered on 8th November, 1962. This sale led to two suits for pre-emption, one filed by Surjan Singh on 18th August, 1962, on the ground that he was the father's brother's son of the vendor and the other by Jagat Singh on 21st September, 1963, alleging that he was the son of the vendor. Both the suits were consolidated by the trial Court.

2. The vendees contested the suits on a number of pleas, but in the present appeal we are only concerned with one of them, namely, that the suits had been filed beyond limitation. The case of the defendants was that the sale-deed was executed on 2nd August, 1961, and the possession of the property was also delivered to the vendees on the same day, with the result that the suits should have been filed within one year from that date and that not having been done, the suits should have been dismissed on the ground of limitation. This plea of the defendant-vendees prevailed with the trial Judge and both the suits were dismissed.

3. Against the decision of the trial Court, only Surjan Singh went in appeal before the learned Senior Subordinate Judge. Jagat Singh did not institute any appeal. He was, however, made a respondent in the appeal of Surjan Singh. He put in an application under Order 41, Rule 33 of the CPC, praying that he was entitled to the possession of the land in dispute by pre-emption as his suit was within limitation and although, he had not filed an appeal against the decision of the trial Court within limitation due to illness, he was entitled to have an order passed in his favour even in the appeal filed by Surian Singh, because the trial Court had consolidated the two suits and tried them together.

4. The contention of Surjan Singh before the lower appellate Court was that the trial Judge had erroneously held his suit to be barred by time. Some of the properties sold, according to him, were not capable of delivery of physical possession and, therefore, the limitation for filing a suit for pre-emption commenced from the date of the registration of the sale-deed, i.e, 8th November, 1962, under Article 10 of the Limitation Act. He had filed the suit on 18th August, 1962, and the same was within time. The learned Senior Subordinate Judge came to the conclusion that the entire property sold was not capable of delivery of physical possession, because it comprised six Khasra numbers in their entirety and one-half share in three other Khasra numbers together with share in Shamilat Deh Patti and one-third share in the well known as Nurpurwala with Persian wheel. Out of the suit property, only six Khasra numbers were capable of delivery of actual possession and regarding the rest, physical possession was not possible. That being so, under Article 10 of the Limitation Act, where the subject-matter of sale did not admit of physical possession, the limitation for filing a suit for pre-emption commenced from the date when the instrument of sale was registered. He was further of the view that the mere fact that Surjan Singh had stated that actual possession was delivered to the vendees on the date of sale would not make the entire property sold as being capable of delivery of physical possession and the finding of the trial Court that the time for filing the suit began to I run from 2nd August, 1961, i.e, the date of sale, was erroneous in law. According to the learned Senior Subordinate Judge, both the suits of Surjan Singh and Jagat Singh, having been filed within one year of the registration of the sale-deed, were within limitation.

5. As regards the application of Jagat Singh under Order 41, Rule 33 of the CPC, the same, according to the learned Senior Subordinate Judge, was without any merit Jagat Singh had not filed an appeal against the decision of the trial Court by which his suit for pre-emption had been dismissed. The interests of Surjan Singh and Jagat Singh were distinct and independent and separate suits for pre-emption had been filed by them. Since Jagat Singh did not institute an appeal against the dismissal of his suit by the trial Court, he cannot be given the benefit of the provisions of Order 41, Rule 33 of the CPC, in the appeal filed by Surjan Singh as a result, the learned Senior Subordinate Judge accepted the appeal of Surjan Singh and decreed his suit on payment of Rs. 9,000/-. Against this decision, two appeals have been filed in this Court — one by the vendees and it is Regular Second Appeal No. 1155 of 1965 and the other by Jagat Singh, the other pre-emptor, which is Regular Second Appeal No. 1212 of 1965.

6. As regards the appeal filed by the vendees, the argument raised by their learned counsel was that it was mentioned in the sale-deed that possession of the property sold had been delivered to the vendees. It was also admitted by Surjan Singh, pre-emptor, himself that the land sold was in possession of the vendees from the date of sale. Similarly, Harnam Singh, the father of the vendees, who had transacted the deal on behalf of his sons, had admitted in cross-examination that the possession of the land sold was delivered to him on the date of sale and that no part thereof had remained in possession of the vendor. Under these circumstances, according to the learned counsel, the suit for pre-emption should have been brought within one year from the time when the purchasers took, under the sale sought to be impeached, physical possession of the whole of the property sold. In other words, the suit should have been filed within one year from 2nd August, 11961, when the vendees took physical possession of the entire property sold.

7. There is no manner of doubt that the property sold included share in Shamilat Deh Patti as well. That being so, the whole of the property sold was not capable of physical possession within the meaning of Article 10 of the Limitation Act and therefore, the pre-emption suit should have been filed within one year from the date of the registration of the sale-deed under that very Article.

8. It was held by a Division Bench of the Punjab Chief Court in Maluk Singh v. Muhammad, 65 Pun Re. 1889

“In a suit for pre-emption, held (following the previous rulings of the Court) that where the sale in question includes a share in the Shamilat even though the greater part of the property sold may consist of a separate holding, the whole subject-matter of the sale is not capable of physical possession within the meaning of Act XV, Schedule II, of the Limitation Act, and the period of limitation in such a case is one year from the date of registration of the deed of sale.”

9. This ruling was followed in Lehna Singh v. Bhagat Singh, 68 Pun Re 1918 : (AIR 1918 Lah 383 (2). No authority taking a contrary view was brought to my notice by the learned counsel for the appellants. It was, however, urged by him that there was in fact no Shamilat Patti or Shamilat Deh in the village, where the suit land was situate, in August 1961, when the sale-deed was executed, because by that time the Punjab Viilage Common Lands Regulation Act, 1953, had come into force, whereunder all the rights, title and interest in the Shamilat Deh had vested in the Panchayat having jurisdiction over the village. No such point, however, was taken by the vendees either in the written statement or in the Courts below. This point was not even raised in the grounds of appeal in this Court. In the sale-deed, it was mentioned that the vendor was selling a share in the Shamilat Patti as well and this sale-deed was accepted by the vendees themselves. Under these circumstances, the vendees cannot be permitted to raise this point for the first time in this second appeal, especially when it might involve the determination of questions of fact as well.

10. In view of what I have said above, I would hold that the learned Senior Subordinate Judge had rightly held that the suit of Surjan Singh had been lied well within limitation. The appeal, consequently, fails and is dismissed. The parties are, however, left to bear their own costs in this Court as well.

11. Now coming to the other appeal filed by Jagat Singh, in the first place, it is not understood as to how that appeal lies. Jagat Singh had, as already mentioned above, filed an application under Order 41, Rule 33 of the CPC, before the learned Senior Subordinate Judge and the same was dismissed by him by his order dated 27th July, 1965. There was no decree passed by the learned Judge against him. It is against a decree that a second appeal could have been filed by Jagat Singh. His suit had been dismissed by the trial Court. He did not go up in appeal against the dismissal of his suit by the trial Judge. It was only if he had filed an appeal and the same had been rejected by the learned Senior Subordinate Judge that he could file a second appeal against the decree passed by the lower appellate Court. If his application under Order 41, Rule 33 of the CPC, had been rejected by the learned Senior Subordinate Judge, he could file a revision petition against that order, but no second appeal is competent against that order. The appeal therefore, deserves to be dismissed on that ground alone. This apart, if Jagat Singh's suit had been dismissed by the trial Court and he did not go up in appeal against that decision, the same became final. In the other suit of Surjan Singh, which was also dismissed by the trial Judge, he had gone up in appeal before the learned Senior Subordinate Judge. Since both the suits, namely, one filed by Surjan Singh and the other by Jagat Singh, had been consolidated by the trial Court, Surjan Singh had to implead Jagat Singh as a respondent in the appeal instituted by him. In the application under Order 41, Rule 33 of the CPC, filed by Jagat Singh in that appeal, he could not be granted the relief asked for by him, because the result of that would have been that his suit which had been dismissed by the trial Court and which decision had become final, would have been decreed and he would have got a decree for possession of the land by pre-emption even in preference to Surjan Singh. Undoubtedly, Jagat Singh could not take the benefit of the provisions of Order 41, Rule 33 of the CPC in a different suit filed by Surjan Singh against the dismissal of which he had gone up in appeal. Learned counsel appearing for Jagat Singh could not refer, to any decided case in which under similar circumstances, Order 41, Rule 33 of the CPC, had been applied. The rights and interests of Jagat Singh and Surjan Singh were quite different and distinct and it was, therefore, that they had to file separate suits for getting relief. If Jagat Singh got satisfied with the dismissal of the suit by the trial Court and did not go up in appeal, he could not get his suit decreed by making an application under Order 41, Rule 33 of the CPC, in the other suit filed by Surjan Singh. His application had, therefore, been correctly rejected by the learned Senior Subordinate Judge.

12. The result is that this appeal also fails and is dismissed. The parties are, however, left to bear their own costs in this Court.

13. Appeals dismissed.

Order 41, Rule 33 of the CPC,

Kirpal Singh And Others v. Surjan Singh And Others

Summary of Opinion — Regular Second Appeals Nos. 1155 & 1212 of 1965

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Vendees' Arguments

Pre-emptor Surjan Singh's Arguments

Jagat Singh's Contentions

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kirpal Singh And Others v. Surjan Singh And Others

Comments