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Jugal Kishore v. Smt. Annapurna Devi - SECOND APPEAL No. 1890 of 1981  RD-AH 546 (16 August 2004)
Second Appeal No. 1890 of 1981
Jugul Kishore Vs. Smt. Annapurna Devi and another
Hon'ble Dilip Gupta, J.
This Second Appeal has been filed by the plaintiff who has lost from both the courts below.
The plaintiff appellant filed Original Suit No. 39 of 1976 for preemption in respect of a house purchased by defendant No.1 from defendant No.2 and for execution of the sale deed by defendant No.1 in favour of the plaintiff and also for injunction against defendant No.1. It was stated that on 1.6.1975 the plaintiff came to know that the defendant No.1 had purchased the house from defendant No. 2 and since the custom of preemption prevailed in the city of Benaras, he immediately sent a notice to defendant No.1 asking her to transfer the said house but defendant No.1 did not agree. The defendant No.1 filed a written statement and denied that there was any custom of preemption and even if it was so the same was void being repugnant to the fundamental rights guaranteed under the Constitution of India. It was further pleaded that the suit was barred by time and that there was no right of easement. The trial court framed a number of issues. As regards whether the suit was barred by time, the trial court decided the issue against the plaintiff and held that the suit was barred by time. As regards the issue whether the plaintiff was entitled to preempt the premises for a consideration of Rs. 10,000/-, the trial court found that the custom of preemption amongst non-Muslims in the city of Benaras existed but the formalities required for claiming and enforcing the right of preemption were actually not performed. The trial court also recorded a finding that the sale deed had been executed for a consideration of Rs. 16,800/- and, therefore, there was no question of the plaintiff claiming preemption for a consideration of Rs. 10,000/- only. As regards the issue whether the plaintiff had a right of easement of light and air through the doors and the windows, the trial court recorded a finding against the plaintiff and held that he could not prove that he had acquired such rights. It accordingly dismissed the suit. The appellate court dismissed the appeal agreeing with the trial court that the suit was barred by time; that the plaintiff had not completed the formalities required for preemption or that he had any right of easement as claimed by him.
Learned Senior counsel for the appellant Sri Siddheshwari Prasad contended that the findings recorded by the two courts below that the suit was barred by limitation is incorrect and is not in accordance with Article 97 of the Limitation Act, 1963 (hereinafter referred to as the ''Act'). He, in order to elaborate his submissions, placed the provisions of Article 97 of the Act which are as follows:-
97. To enforce a right of pre-emption whether the right is founded on law or general usage or on special contract. One year When the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold, or, where the subject-matter of the sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered.
In the instant case, the agreement to sell was executed on 13.3.1974 while the sale deed was executed on 28.6.1974 but was registered on 31.7.1974. The suit was filed on 8.2.1976. Both the courts below have recorded a finding that physical possession of the premises was handed over on the date of registration of the sale deed i.e. 31.7.1974 and, therefore, the period of limitation will start to run under Article 97 of the Act from this date. They have accordingly held that the suit was barred by limitation.
Learned Senior counsel appearing for the appellant submitted that the period of one year begins to run when the purchaser takes under the sale sought to be impeached physical possession of the whole or part of the property sold. He further submitted that the disputed premises were actually in possession of Shyam Lal Kakkar who was a tenant and only when he vacated the house on 1.6.1975, the physical possession of the house could have been taken and, therefore, the suit was within time. He further contended that even the defendants had stated that they started living in the disputed house only in the month of November, 1975.
This submission of the learned Senior counsel is not correct. Both the courts below have recorded a categorical finding on the basis of the oral evidence and the recital in the sale deed that the defendants came into physical possession of the house when the sale deed was executed and that Shyam Lal Kakkar was not residing when the sale deed was executed. These findings cannot be termed as perverse.
The courts below have also recorded a categorical finding on the basis of the evidence that the formalities required for enforcing the right of preemption have not been complied with by the plaintiff and that the plaintiff did not have any right of easement as claimed by him. These are essentially findings of fact, which have been arrived at by the courts below after examining the evidence available on record. I have carefully perused these findings and see no reason to interfere with them.
Sri B.R. Agarwal, learned Senior counsel appearing for the respondents has further pointed out that the Supreme Court in the case of Sant Ram and others Vs. Labh Singh and another reported in AIR 1965 SC 314 has held that the right of preemption on the ground of custom is contrary to the provisions of Article 19 of the Constitution of India. However, in view of the findings recorded by the courts below, it is not necessary to examine this question in this Second Appeal.
The Second Appeal is, accordingly, dismissed. The interim order, if any, stands vacated.
There shall be no order as to costs.
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