Jammu & Kashmir High Court
S. Hazara Singh vs Ajit Singh And Another on 18 July, 2012
Equivalent citations: AIR 2013 JAMMU AND KASHMIR 18
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. C2A No. 14 OF 2012 S. Hazara Singh Petitioners Ajit Singh and another Respondent !Mr. Nirmal Kotwal, Advocate for the appellant ^Mr. Rajnesh Oswal, Advocate for the respondent no.2 Honble Mr. Justice Mohammad Yaqoob Mir-Judge Date: 18.07.2012 :J U D G M E N T :
1. Vide Sale Deed executed on 06.04.2002 and registered on 09.04.2002, land measuring 01 Kanal and 16 Marlas covered by Khasra No.178-B min, Khata no.474, Khewat No.125 situated at village Kour, Tehsil R.S.Pura, Jammu has been sold by respondent no.1 to respondent no.2. The Mutation based on said Sale Deed has been attested in the year 2010 by the concerned Revenue Officer.
2. The petitioner claimed to have superior right of purchase but notice as was required to be served upon him in terms of Section 18 of the Jammu and Kashmir Right of Prior Purchase Act, 1993, has not been issued at all.
3. It is only on 05.03.2010, when according to him, respondent no.2 (Vendee) tried to enter upon the land in question, he gained knowledge about the execution of the Sale Deed and attestation of the Mutation, therefore, has filed suit for enforcement of his right of prior purchase in the year 2010, i.e. after more than eight years from the date of execution of Sale Deed.
4. The respondents have resisted the suit and in the written statement projected various grounds which include limitation, as such, have claimed that the suit is time barred.
5. On the basis of the respective pleadings of the parties, various issues were framed whereas issue no.4 was treated as preliminary issue, which reads as under:-
Issue no.4.
Whether the suit of the plaintiff is hopelessly time barred and is liable to be dismissed? OPD
6. Learned Trial Court vide its order dated 29.11.2010, while referring to the provisions of Section 29 of the Jammu and Kashmir Right of Prior Purchase Act, 1993 and Article 10 of the Limitation Act has concluded that Article 10 applies, therefore, the suit to enforce right of prior purchase has to be filed within one year from the date of registration of the Sale Deed or from the date Vendee takes possession of the property sold. The Sale Deed has been registered in the year 2002 and possession has also been delivered to the Vendee in the year 2002 itself and to this effect, there is admission on the part of the appellant (plaintiff), finally the learned trial Court has dismissed the suit as barred by limitation.
7. Civil Ist Appeal filed has also been dismissed vide judgment dated 15.03.2012 passed by the Court of 2nd Additional District Judge, Jammu. Learned appellate Court has referred to the contents of the Sale Deed by stating that in para no.1 of the said Deed, the possession of subject matter of the sale is recorded to have been delivered to the Vendee. Position of the said para of the Sale Deed has not been pleaded to be wrong.
8. Finally, learned appellate Court has concluded that Article 10 of the Limitation Act applies, otherwise also if Section 29 of the Right of Prior Purchase Act is applied, still suit is time barred.
9. Appellant feeling dissatisfied with the judgment passed by the trial Court as well as the judgment and decree passed by the appellate Court, has filed the instant Civil 2nd Appeal.
10. Mr. Rajnesh Oswal entered appearance on behalf of respondent no.2.
11. At the very outset, it has to be made clear that it is no more res integra that Civil 2nd Appeal has not to be entertained unless the Court is satisfied that a substantial question of law arises for adjudication; as is required under Section 100 of CPC. Formulation of substantial question of law is a pre condition for entertaining the Civil 2nd Appeal.
12. In the memo of appeal as many as following six questions have been formulated for being treated as substantial questions of law, which in fact revolve around question no.1:-
(i) Whether issue of limitation is a mixed question of law and fact and if so whether the suit could be dismissed by treating issue of limitation as preliminary issue.
(ii) Whether error of law has been committed by the courts below in deciding the suit as hopelessly time barred.
(iii) Whether provisions of Article 29 of the Limitation Act applies to the present case under the fact and circumstances of this case.
(iv) Whether applicability of Article 10 of the Limitation Act losses significance in view of the sale of agricultural land and immoveable property.
(v) Whether the appellant/plaintiff is debarred from seeking decree of possession in respect of the suit property.
(vi) Whether the issue of limitation is vitiated as being against law.
13. Issue of limitation whether to be a mixed question of law and fact has to be considered in the background of particular facts of the particular case.
14. The question of limitation based on facts which are controvertable, has to be treated as a mixed question of law and fact so cannot be treated as preliminary issue.
15. The question of limitation based on admitted fact position has to be treated as pure question of law and has to be treated as preliminary issue.
16. Article 10 of the Jammu and Kashmir Limitation Act, provides that to enforce a right of prior purchase, a period of limitation is one year, which is to reckon from the date physical possession of the whole of the property sold is taken over by the purchaser, or, where the subject of the sale does not admit of physical possession, when the registration of instrument of sale is completed. In the instant case, instrument of sale has been completed in the year 2002 and by the same document, possession is shown to have been delivered to the purchaser. Suit has been filed after eight years.
17. Section 29 of the Right of Prior Purchase Act provides that where limitation is not provided for by Article 10 of the Ist Schedule of the Jammu and Kashmir Limitation Act, the period of limitation to enforce a right of prior purchase shall be one year. In the case of a sale of agriculture land or village immoveable property, time shall run from the date of attestation of sale by a Revenue Officer having jurisdiction to attest the Mutation or from the date on which Vendee takes possession of the property, whichever is earlier. Mutation has been attested in the year 2010 but the possession as per instrument of sale has been delivered to the purchaser in the year 2002.
18. Learned counsel for the appellant (plaintiff) before the Courts below had contended that the possession was not delivered to the Vendee, therefore, question for consideration was as to whether possession was delivered to the Vendee in the year 2002 when document of Sale Deed was executed or in the month of March, 2010 when Vendee tried to take over the possession, which in turn would determine the question of limitation, therefore, it is a mixed question of law and fact.
19. Delivery of possession to the Vendee in the year 2002 itself as specifically mentioned in the Sale Deed, has not been challenged, appellate Court noticing the same position has opined it to be admission, furthermore, appellant (plaintiff) in para no.8 of the plaint has averred that the impugned sale deed and in consequence possession taken by respondent no.2 is illegal, which means possession of respondent no.2 is admitted. Appellant (plaintiff) has not averred anywhere in his plaint or in the memo of appeal that recital regarding delivery of possession to the purchaser contained in the Sale Deed is wrong. Therefore, issue no.4 has been treated as question of law so decided.
20. Article 10 of the Jammu and Kashmir Limitation Act has been applied by the trial Court and the appellate Court, and the appellate Court has also opined that even otherwise if Section 29 of Right of Prior Purchase Act would apply, still limitation is to reckon in the instant case from the date of delivery of possession, because Section 29 of the Right of Prior Purchase Act provides that the time will run from the date of attestation of mutation or delivery of possession whichever is earlier. Possession of sold property is concluded to have been delivered in the year 2002 when Sale Deed has been executed so is earlier in point of time, accordingly time will run from the same date, as such also suit having been instituted after eight years is barred by limitation.
21. In the aforesaid background, no substantial question of law much less simple question of law emerges, therefore, instant Civil 2nd Appeal being not maintainable is dismissed. No orders as to costs. Decree be drawn accordingly.
Copy of the judgment and decree be certified to the trial Court and the Ist Appellate Court.
(Mohammad Yaqoob Mir) Judge Jammu.
18.07.2012.
Madan