# SUKHNANDAN SINGH ETC v. JAMIAT SINGH & ORS

- **Citation:** [1971] 3 S.C.R. 784
- **Court:** Supreme Court of India
- **Decided:** 1971
- **Bench:** I. D. Dua, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sukhnandan-singh-etc-v-jamiat-singh-ors-5416
- **Pages:** 7

## Headnote

P~e-e111p1i~11--:-Suit for--Co/lusion-;-Suit by son.< of Vendors for pre1"fnP!'?n7Pla1n!it1s c.n_d vendors residing and .messing l!Ogether altd expenset;
.of /1,1ga11on being pwd by vendor.<-!/ mfjicient to e.<tab/ish col/usirm,
Limitation Act 1908-Article 10--Suit for Pre-emption-LimitdtionPurt of the /anti sold i11 tJie hands of tenants-Starting point of /i111itrztion-
":Physicn/ pos.ression", 1neaning.
In a suit for pre-emption by. the sons of the vendors of cerlain land
·1hc vendees pleaded collusive nature of' the suit and limitation. The trial
court found that the vendors and the plaintiffs resided and messed together
.1Jnd 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
10f and in collusion with the vendors and therefore the plaintiffs were held
lto be estopped from exercising their right of pre-emption. On th~ question
of limitation the trial court held that- the vendors1 and not their tenants.
\vere in possession of the land sold, that possession of the land was delivered to the vendees on the date of the sale and therefore th\! suit wa5
barred by limitation. The first appellate Court reven;ed 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 pcr-;oital possession.
In that view of ~he matter, under Section 10 of the limitation
_,,er, 1908 the terminus a quo was the date of registration of the "11e deed
.and therefore within the one year limitation under Article 10.
T'io 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
''" which the plaintiffs could be held to have lost their right of pre·
emption Qn the ground of collusion. Merely because the v•ndors,'the fathers
of the plaintiffs, were helping their sons to exercise the statutory right con·
fcrrcd 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 FJ
(ii) On the finding of the Disltict 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 tho Limita-
·tion Act docs not apply. The second part of Article 10 covers ca;cs where
the subject of the sale,_ which means the whole of the proper!\' <old, 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 c<Press1on
";uhject to the sale" suggests that this Article would apply only if the ;intire
ond not only a part of the land is in the po<Session of the tenant', lS not
.acceptable. [789 Cl
"
Jn the present ease the pr~perties in I.he .~and.s of tenants ha'<, to be
hold to be incapable of "Physical possession which means per.on«I and
·immediate possession.
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SUKHNANDAN v. JAMIAT (Dua. J.)
785
A
B~tul Begam v. Mansur Ali Khan,
I.L.R. 24 All.17 and
G/lulum
Mustaf~ v. Shaltabuddin, 49 P.R. 1908, referred to.
CIVIL APPELLATE JuR1so1cnoN: Civil Appeal No. 1729 of
1967.
Appeal by special leave from the judgment and decree dated
B
October 17, 1967, of the Punjab and~ Haryana High Court 111
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E
F
G
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Regular Second Appeal No. 822 of 1965.
K. L. Gosain and Nmmit Lal, for the appellants.
Purushottam Chatterjee and D. D. Sharma, for the respondents.

## Text

784
SUKHNANDAN SINGH ETC.
v.
JAMIAT SINGH & ORS.
Februar,y 18, 1971
[I. D. DUA AND V. BHARGAVA, JJ.J
P~e-e111p1i~11--:-Suit for--Co/lusion-;-Suit by son.< of Vendors for pre1"fnP!'?n7Pla1n!it1s c.n_d vendors residing and .messing l!Ogether altd expenset;
.of /1,1ga11on being pwd by vendor.<-!/ mfjicient to e.<tab/ish col/usirm,
Limitation Act 1908-Article 10--Suit for Pre-emption-LimitdtionPurt of the /anti sold i11 tJie hands of tenants-Starting point of /i111itrztion-
":Physicn/ pos.ression", 1neaning.
In a suit for pre-emption by. the sons of the vendors of cerlain land
·1hc vendees pleaded collusive nature of' the suit and limitation. The trial
court found that the vendors and the plaintiffs resided and messed together
.1Jnd 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
10f and in collusion with the vendors and therefore the plaintiffs were held
lto be estopped from exercising their right of pre-emption. On th~ question
of limitation the trial court held that- the vendors1 and not their tenants.
\vere in possession of the land sold, that possession of the land was delivered to the vendees on the date of the sale and therefore th\! suit wa5
barred by limitation. The first appellate Court reven;ed 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 pcr-;oital possession.
In that view of ~he matter, under Section 10 of the limitation
_,,er, 1908 the terminus a quo was the date of registration of the "11e deed
.and therefore within the one year limitation under Article 10.
T'io 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
''" which the plaintiffs could be held to have lost their right of pre·
emption Qn the ground of collusion. Merely because the v•ndors,'the fathers
of the plaintiffs, were helping their sons to exercise the statutory right con·
fcrrcd 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 FJ
(ii) On the finding of the Disltict 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 tho Limita-
·tion Act docs not apply. The second part of Article 10 covers ca;cs where
the subject of the sale,_ which means the whole of the proper!\' <old, 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 c<Press1on
";uhject to the sale" suggests that this Article would apply only if the ;intire
ond not only a part of the land is in the po<Session of the tenant', lS not
.acceptable. [789 Cl
"
Jn the present ease the pr~perties in I.he .~and.s of tenants ha'<, to be
hold to be incapable of "Physical possession which means per.on«I and
·immediate possession.
A.
B
c
D
E
F
G
H
...
'
SUKHNANDAN v. JAMIAT (Dua. J.)
785
A
B~tul Begam v. Mansur Ali Khan,
I.L.R. 24 All.17 and
G/lulum
Mustaf~ v. Shaltabuddin, 49 P.R. 1908, referred to.
CIVIL APPELLATE JuR1so1cnoN: Civil Appeal No. 1729 of
1967.
Appeal by special leave from the judgment and decree dated
B
October 17, 1967, of the Punjab and~ Haryana High Court 111
c
D
E
F
G
H
Regular Second Appeal No. 822 of 1965.
K. L. Gosain and Nmmit 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 P~jab and Haryan:i
High Court arising out of a i;>re-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 decisio.ns of the
High Court and of the court of the District Judge on issues 6 and
7.
Those issues are :
"6. Is the suit 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 .mar/as of land to Sukhnandan Singh, Sukhrninder
Singh and Balkar. Singh sons Gurdev Singh in equal shares, I /3rd
share, Gurminder Singh and Gurpakh Singh sons of Teja Singh in
equal shares, I/3rd share. Gurdas Singh son of Angrez Singh,
I /3rd share at the rate of Rs. 840/-
per
bigha.
A sum of
Rs. 7,000/- was received in cash as earnest money.
Qn December 6, 1961 a formal sale deed was executed with some variations
in sh'ares 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 th.at consolidation proceedings under s. 21 (1) of the Consolidation Act had
been completed but further proceedings in favour of the vendees
would be taken after the proceedings which might be taken under
78.6
SUPREME COURT REPORTS
[197113 S.C.R.
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 dis-
, posed 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
. libe plaintiffs' counsel in the court compound during the course
., ·
"(.of this litisation were produced as evidence in the case.
Exhibit
1 •
·).1-2 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 ve.ndors ·
and .father of J amiat Singh, plaintiff.
According to the trial
court there was also evidence that the plaintiffs and the vendors
resided and mes~ed 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 oad faith."
The plaintiffs were on this reasoning held to be
estopped from exercising their right of pre,emption. On the question of lin1itation the trial court. held that the vendors and not.
their tenants were in possessioo of he land sold, which had been
allotted to them in the consolidation proceedings and the possession of that land was delivered to the veindees 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.
Accordii:tg to that court in order to prove collusion the defendant ha~ to prove that the suit was being fought for
the wndor's benefit, the normal presumption being that the plaintiff .1ues for his· o.wn benefit. In support of this view several decisioms
were relied upon by the District Judge. ·In the present case,
according to the learned District Judge, the plaintiff Jamiat S£ngh
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 thafBx: p;2 had been obtained by
one of the vendors nor the fact that the vendors were present in the
court coml??und with the plaintiffs and their counsel during . the
course of htigation indicated that the present suit had necessarily
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SUKHNANDAN V. JAMIAT (Dua,./.)
787
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been instituted for the benefit of the vendors.
On this reasoning
the decision on the collusive nature of the suit which must result
in .its disip.issal 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, ii did not admit of physical possession, which
means immediate 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
aecreed.
On second appeal a learned single Judge of the Pun.jab and
HaryQna 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 stateffifnt of Jamiat Singh the High Court undoubtedly felt unimpressed by his statement but we do not think
it was open to that court on second appeal to appraise the credibility 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
earniings. Even after feeling unimpressed by the statement of
J amiat 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 cootention 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 repelled. 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 documertt was not shown to have been misread by
788
SUPREME COURT REPORTS
(1971]'3 s.c:R.
the first appellate court. ·on this finding Art. 10 of the Indain Limitation Act, 1908, and 1not S. 30 of the Punjab Pre-emption Act.
was held applicable a.nd 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 cot1insel for the appellantvendees-pressed the points of collusion and limitation. We are,
however, 11nable to find merit in either of them. So far as the
question of collusion is concerned it was not clarified by the
learned counsel how the plaintiffs could be held to have Jost their
'fight of pre-emption merely becauses their fathers either came to
the court with them, which they did openly1 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 persons that the one hould institute a suit against the other
in order to obtain· the decision of a judicial tribunal for some
sinister purpose. In scuh 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
<letermination, 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 pre-empt the sale and it is no concern of the ve.ndees
whether he ·borrows moqey from someone or otherwise arranges
for finances for pre-empting the sale. It is true that it is a persnoal
right and is not capable of being transferred. And the right of
pre-emption being a right of substitution the vendor also canttot-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 preemption. 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 soine act In order to prejudice a third person or for some im·
proper purpose, would not apply to the present case so as to
operate as estoppel against the plaintiffs. Whether or not a preeptor-plaintiff whd is a benamidar for the vendor or some o~er
party loses his right because of being a benamiliar is a qu~f!OIT
which does not concern us in this case and we express no op1mon
thereon. On the facts of the present case there is absolutely no
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SUKHNANDAN v. JAMlAT (Dua, /.)
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 o[
the ~cond Schedule cf 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 pre-empted, 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 sak
is registered. Section 30 of the Punjab 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
tu.ken 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 thein 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, cove~ cases where the subject of the sale, which
means the whore i>f the property sold, does not admit of physical
possession and that would be so when a part of the land is in the
possesion of the tenants. The argument that use of the expression
"subject of the sale" suggests that this artcile 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 expressbn "physical 1possession"
came wp for construction before
the Privy Council in BatuT
Begam v. Mansur Ali Khan(') 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 f871 requiring "actual
possession" and finally in 1877 substituting the word
"physical" and "actual", it is seen that that word has
(I) 1.L.R.C4 All. 17
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790
SUPREME COURT REPORTS,
[1971]3 S.C.R.
been very deliberately
chosen and for a restrictive
purpose. Their Lordships are of opinion that the Higll
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 stil! more certainty to the words
"physical possession" and that what is meant is a "personal and immediate" possession."
This view has evec 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 field
·in the Punjab and we do not find any cogent reason for disagree·
ing 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 dismissed with costs.
R.KP.S.
'
Appeal dismissed.
(I) 49 P.R. 1908 (F.B.).
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