J.V. Gupta, J. - (1.) This is Defendants' second appeal against whom the suit for possession by way of pre -emption has been decreed by both the Courts below.
(2.) Smt. Bholi Bai sold 146 kanals 2 marlas of land to the vendees -defendants -appellants, vide registered sale deed dated June 9, 1966, Exhibit D -l, for a sum of Rs. 25,000/ -. The Plaintiff Respondent claimed the right of preemption on the ground that she was the daughter of the vendor. The suit was filed on June 8, 1967. In the written statement filed on behalf of the Defendants -appellants, it was pleaded that the Plaintiff was not the daughter of the vendor, nor she had any preferential right of pre -emption. It was also pleaded that the suit was barred by limitation and that the vendor owned more than 40 standard acres of land and for this reason also, the suit was liable to be dismissed. A farther -plea was also taken that the Defendants were tenants on the suit land on the date of the sale; hence the sale was not pre -emptible. The trial Court found that the Plaintiff was the daughter of the vendor and that she had a superior right of pre -emption. The suit was also held to he within time. It was further found that the Defendants had not been able to prove themselves to be the tenants on the suit land at the time of the sale. Consequently, the decree for possession of the suit land on payment of Rs. 26,862/ - i.e. Rs. 25,000/ - as the sale consideration and Rs. 1,862/ - as the deed expenses. was passed. In appeal, the learned Additional District Judge affirmed the said findings of the trial Court and thus maintained the decree passed in favour of the Plaintiff by the trial Court. Dissatisfied with the same, the Defendants have come up in second appeal to this Court.
(3.) The Learned Counsel for the Appellants vehemently contended that the suit as brought by the Plaintiff was barred by time because according to the finding of the lower appellate Court, the plaint will be deemed to have been presented on June 13, 1967, whereas the vendees had already taken possession of the suit land under the sale deed on June 9, 1966 - Thus, the suit having been filed after more than one year therefrom, was barred by time under article 97 of the Limitation Act. According to the Learned Counsel, it has been wrongly held by the lower appellate Court that the vendees had not taken possession of the whole or part of the suit property on a date prior to June 13, 1966. In the sale deed, argued the Learned Counsel it has been recited that the vendees are already in physical possession as tenants and that possession by way of ownership has been delivered to them under the deed.;