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PETITIONER: SUKHNANDAN SINGH ETC.

       Vs.

RESPONDENT: JAMIAT SINGH & ORS.

DATE OF JUDGMENT18/02/1971

BENCH: DUA, I.D. BENCH: 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-emption- Limitation-Parr  of the land sold in the hands  of  tenants- Starting point of Iimitation-"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  he 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 con- ferred  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]

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(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.

JUDGMENT: 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, 1/3rd- 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 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

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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  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 priratical 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 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

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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  credi- bility  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 sold- Was 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  the- Indian  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

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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  pre- emption 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 right- of 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  pre- emption  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

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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.).                             791