Amar Singh vs Sheo Narain

G.R. Majithia, J.

This regular second appeal is directed against the judgment and decree of the first appellate Court affirming, on appeal, those of the trial Judge decreeing the suit of the plaintiffrespondents for possession by way of preemption of the suit land.

The appeal came up for motion hearing before N.C. Jain, J. on June 8, 1990 and the learned Judge observed thus :

"Mr. Goel, learned counsel for the appellant cited 1984 PLJ 354. Admitted D.B. Since the precise question is likely to arise is many cases and hearing may not take more than two hours on both sides, it is a fit case which should be listed for final hearing within six months from today. Stay to continue."

R.S.A. No. 113 of 1992 came up for motion hearing on February 7, 1992 and it was admitted to hearing with the following observations :

"Notice. To be set down for hearing with R.S.A. No. 654 of 1990."

Since facts in R.S.A. No. 113 of 1992 are different from those in R.S.A. No. 654 of 1990, we have decided to dispose of the same by a separate judgment.

The plaintiffrespondents claiming a superior right of preemption being cosharers filed a suit giving rise to this regular second appeal. The plaintiff respondents purchased 1/8th share of the land comprised in Khewat No. 42, Khatauni No. 55, Rectangle No. 23, Killa Nos. 1, 11, 20, Rectangle No. 24, Killa Nos. 5, 6, 15, 16, 25/1, Rectangle No. 41 Killa Nos. 13, 18,71 and Khasra Nos. 85, 97, 126, 211/5 from Smt. Shanti daughter of Dilsukh the vendor under registered sale deed dated August 2, 1984, Exhibit P.W. 11. Mutation Exhibit P.C. dated September 10, 1984 was sanctioned in favour of the plaintiffs on the basis of registered sale deed dated August 2, 1984 (Exhibit P.W.1/1). One of the cosharers sold 1/8th share in the land mentioned in Exhibit P.W.1/1 to the vendeedefendantappellants under sale deed dated October 30, 1985 and mutation thereof was sanctioned on January 10, 1986 (vide Exhibit P). The plaintiffrespondents, claiming a superior right of preemption filed suit for possession of the land measuring 10 Kanals which was sold by Juther Singh, defendantrespondent No. 4 to the vendeesdefendantappellants by means of sale deed dated October 30, 1985 for Rs. 18,000/. The Courts below, on appreciation of the evidence, gave a firm finding that the plaintiffrespondents were cosharers in the suit land and had a preferential right of purchase. The defendantvendees'' plea that the land had been partitioned before passing of the decree was negatived.

The only question arising for determination in this case is : whether the status of the plaintiffs as cosharers had ceased to exist on the date of the institution of the suit or the decree. Exhibit D.2 is the order dated May 28, 1988 passed by the Assistant Collector, I Grade, Rewari, rejecting the objections to ''Naqsha Be'' and proving the same. Exhibit D.3 is the ''Naqsha Jeem''. Exhibit D.4 is a copy of the order dated June 13, 1988 passed by the Collector, Rewari staying operation of the order dated May 28, 1988. Although in the order, operation of the order dated May 29, 1988, was stayed, but in fact, the operation of order dated May 28, 1988, Ex. D.2 was stayed. It appears, the May 29, 1988 has been recorded by the inadvertence. Before the first appellate Court, the parties did not dispute that the order dated June 13, 1988, Ex. D4, related to the order of the Assistant Collector I Grade, dated May 28, 1988, Ex. D.2. There is no other evidence on the record showing that the land had been partitioned. The operation of the order by which ''Naqsha be'' was approved was stayed by the Collector, Rewari by his order dated June 13, 1988 (Ex. D.4). When attention of the learned counsel was drawn to Exhibit D.4, he had nothing to urge that the land had been partitioned. The foundation of the plea of partition was based upon the order dated May 28, 1988, Ex. D.2, passed by the Assistant Collector, I Grade, Rewari, by which ''Naqsha Be'' was approved. The operation of this order having been stayed by the Collector, there is no evidence on record to prove that the partition was made in fact. The vendeedefendantappellants having failed to prove that the order of the Assistant Collector I Grade approving ''Naqsha Be'' was in fact, the plea that the land had been partitioned is without substance. The land was joint and the plaintiffrespondents having a superior right of preemption being cosharers, the suit for preemption could not be defeated.

The plaintiffrespondents moved an application under Order 41 Rule 27, Civil Procedure Code, before the first appellate Court to produce on record a copy of the order dated October 14, 1988 passed by the Collector, Rewari, setting aside the order of Assistant Collector I Grade, Rewari dated May 28, 1988, Ex. D.2. The first appellate Court rejected the application on wholly erroneous grounds. Production of this additional evidence would have set at rest the controversy arising between the parties whether the order dated May 28, 1988, Ex. D.2 was in existence. The plea of the vendeedefendantappellants that the land had been partitioned by virtue of order Exhibit D.2 would have been clarified if the order dated October 14, 1988 passed by the Collector had been allowed to be produced on record. The additional evidence can be allowed if it is required by the Court to pronounce the judgment or to further substantial cause. In the instant case, we find that in order to pronounce the judgment in a satisfactory manner and to put the controversy at rest it is desirable to permit the plaintiffrespondent to produce the copy of the order dated October 14, 1988, passed by the Collector, Rewari. When the counsel for the appellant was asked if the application was allowed, whether he would like to lead any evidence in rebuttal, he stated at the Bar that he did not want to lead any evidence in rebuttal, against the evidence sought to be allowed by way of additional evidence. Application under Order 41, Rule 27, Civil Procedure Code, filed by the plaintiffrespondents is allowed and the additional evidence is allowed to be produced on record and the same is Exhibited as C.1 Wl to the bringing on record the additional evidence, the matter is beyond any pale of controversy that the order dated May 28, 1988, passed by the Assistant Collector I Grade, Rewari, by which ''Naqsha Be'' was approved was set aside by the Collector, Rewari.

For the reasons stated above, the appeal fails and is dismissed, but with no order as to costs.