' This regular second appeal is directed against the judgment and decree, dated 15-4-1977 awarded by the First Appellate Court confirming the judgment and decree of the trial Court.
2. Brief facts of the case are that the respondent filed a suit for possession through pre-emption on 1-9-1972 from a Mutation sanctioned by the Revenue Officer on 31-8-1971. Circumstances preceding the Mutation were that on 16-11-1966 an agreement to sell was executed by the vendor in favour of the petitioner. Through this agreement to sell a sum of Rs,1,500 was received by the vendor as part of the sale consideration. The total value of the land sold was fixed at Rs,3,500. It was agreed that the remaining amount of Rs,2,000 would be paid to the vendor either at the time of registration of sale-deed or attestation of Mutation whichever is earlier. On 21-11-1966 another document was executed by the general attorney of the vendor in favour of the petitioner. This document was captioned as agreement to sell. Through this document remaining consideration of Rs, 2,000 was paid and it was stated that the possession had also been delivered. The registration of the sale-deed or Mutation could not be affected because the sold land became subject-matter of consolidation. However, the Mutation of sale was sanctioned by the Revenue Officer concerned on 31-8-1971.
3. The respondent filed a suit for possession through pre-emption which was contested by the defendant/appellant. Various pleas inter alia the plea of limitation and estoppel was raised by the defendant/appellant. From the pleadings of the parties issues were settled and both the parties led their evidence. The trial Court after hearing, decreed the suit of the respondent vide judgment and decree, dated 13-1-1975 on payment of Rs,3,500 less amount already deposited by him as 1/5th on or before 5-3-1975. The appellant filed an appeal which was dismissed by the First Appellate Court vide its impugned judgment and decree, dated 15-4-1977. Feeling aggrieved the appellant preferred the present appeal.
4. Before the First Appellate Court the appellant only challenged the finding of the trial Court on Issues Nos. 1 and 3 and did not seriously challenge the finding of trial Court on other issues. In arguing the second appeal the appellant has again taken the same stand and mainly addressed on the question of limitation and estoppel. It was contended by the learned counsel for the appellant that document, dated 21-11-1966 was a sale-deed for all intents and purposes, therefore, limitation had started running from 21-11-1966 and the suit filed by the respondent on 1-9-1972 was barred by time. The document, dated 21-11-1966 was captioned as agreement to sell and it was registered. a contained that vendor's general attorney had received a sum of Rs,2,000 as remaining sale price and that vendor had also delivered possession of the land to the vendee and nothing else was left to be done. Therefore, this document had to be construed as a sale-deed.
Relying on Article 10 of the Limitation Act the learned counsel for the appellant argued that for a suit for pre-emption the time would start running from the date of execution of a registered sale-deed or attestation of mutation or from the date of possession. Submitting further the learned counsel added that after the District Judge held that registered document, dated 21-11-1966 was sale-deed, he was bound to compute the time from the date of its registration which was 21-11-1966.
According to the learned counsel the judgment of the First Appellate Court was contradiction in terms so far as it related to the finding on Issue No, 1 . The learned counsel for the respondent supported the judgment of the First Appellate Court and argued that no question of law arises in the instant case, therefore, the regular second appeal is incompetent.
5. I have considered the arguments of the parties and examined the file. The document which was captioned an agreement to sell was registered on 21-11-1966 and scrutiny of its contents may lead to an inference that it was in substance a sale-deed but it could not be taken as k registered sale- deed as mentioned in Article 10 of the Limitation Act. It was provided in the said Article that to enforce a right of pre-emption whether the right is founded on law or general usage, or on special A contract a suit would be filed within one year which begins when the purchaser takes under the sale physical possession of whole of the property sold or where the subject of the sale does not admit of physical possession, when the instrument of sale was registered. The instrument dated 21- 11-1966 was defined as an agreement to sell as such, it could not be equated with the instrument of sale even though by attracting the principle of interpretation of document the same was subsequently held to be a sale-deed. The provisions of law not to be interpreted to defeat the right of the citizen or encourage the devious conduct of the parties. I B nothing was required to be done after 21-11-1966, the entire consideration was received; the possession was delivered then nothing prevented the appellant to have the final sale-deed registered in his favour. Instead the appellant preferred to obtain an agreement to sell and then later on 31-8-1971 got the mutation of sale entered in his favour. If C the appellant takes the agreement to sell dated 21-11-1966 as a sale- deed, there was no occasion for him to seek the sanction or mutation of sale on 31-8-1971. It clearly shows that even the appellant himself construed the document as agreement to sell. It was not an unequivocal document, therefore, it could not be held to be a registered instrument of sale as envisaged under Article 10 of the Limitation Act. It, therefore, follows that limitation for filing the suit by respondent did not start from registration of agreement to sell dated 21-11-1966 but it was correctly taken to be the date of attestation of mutation of sale on 31-8-1971.
6. Arriving on the conclusion hereinbefore, I do not find any legal infirmity in the finding of the First Appellate Court on the question of limitation, as such, the findings of the First Appellate Court are upheld. As regards the other argument of the learned counsel relating to estoppel, I do not find any merit in this submission. The argument that the respondent was present at the time of payment of amount as such, he was estopped to file the suit is also an argument without any substance. It is not proved from the record that the respondent was present at the time of sale and even if any far-fetched inference is drawn proving the possibility of the presence of the respondent, it would not constitute estoppel in the absence of any other tangible evidence brought on record. Thus, the second argument of the appellant is also without merit.
' In view of my findings hereinbefore, I do not find any merit in the regular second appeal, accordingly the same is dismissed.
Second .