JUDGMENT
P.C. Pandit, J.
1. This order will dispose of two connected Regular Second Appeals Nos. 1155 and 1212 of 1965.
2. 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 preemption, 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.
3. 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.
4. 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, Code of Civil Procedure, 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 Surjan Singh, because the trial Court had consolidated the two suits and tried them together.
5. 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 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 Surian Singh and Jagat Singh, having been filed within one year of the registration of the sale-deed, were within limitation.
6. As regards the application of Jagat Singh under Order 41, Rule 33. Code of Civil Procedure, 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 preemption 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, Code of Civil Procedure, 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-emp-tor, which is Regular Second Appeal No. 1212 of 1965.
7. 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 hi 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 posses-don 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.
8. 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.
9. It was held by a Division Bench of the Punjab Chief Court in Maluk Smgh 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.”
10. 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 Puniab Village 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 iuris-diction over the village. No such poi.it, 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.
11. In view of what I have said above, I would hold that the learned Senior Subordinate Judge had rightly held that the suit of Surian Singh had been filed 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
12. 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, Code of Civil Procedure, 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 onlv 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, Code of Civil Procedure, 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.
13. 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, namelv. one filed by Surian Singh and the other by Jagat Singh, had been consolidated by the trial Court, Surian Singh had to implead Jagat Singh as a respondent in the appeal instituted by him. In the application under Order 41. Rule 33, Code of Civil Procedure, 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 decree for possession of the land by preemption even in preference to Surjan
Singh. Undoubtedly, Jagat Singh could
not take the benefit of the provisions of
Order 41, Rule 33, Code of Civil Proce
dure 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 simi
lar circumstances, Order 41, Rule 33, Code
of Civil Procedure, 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 sot 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,
Code of Civil Procedure, in the other suit
filed by Surjan Singh. His application
had, therefore, been correctly reiected by
the learned Senior Subordinate Judge.
14. The result is that this appeal also
fails and is dismissed. The parties are,
however, left to bear their own costs in
this Court.
