Avtar Singh and Another vs Amrik Singh and Another

Gokal Chand Mital, J.—By registered sale deed dated 8th July, 1906, Hazara Singh sold 35 Kanals 9 Marias of agricultural land to Amrik Singh Defendant for a consideration of RS. 8,000/- Avtar Singh and Bhagat Singh tiled a suit for pre-emption on the ground that they are the sons of the vendor and the reform, have a preferential right of pre-emption. The vendee Defendant contested the suit and denied that the Plaintiffs? were the sons of the vendor besides raising other peas with which we are not concerned in this appeal. The trial Court by judgment and decree dated 1st July, 1968, decreed the suit for posses sun by pre emption after coming to the conclusion that the Plaintiffs were proved to be the sons of the vendor. On appeal by the vendee, the Additional District Judge, Karnal, upset the judgment and decree of the trial Court and dismissed the suit for preemption after coming lo the conclusion that the Plaintiffs were not proved to be the sons of the vendor as the evidence brought on the record did not satisfy the requirements of Section 50 of the Evidence Act and as such was inadmissible. The Plaintiff''s have come up in second appeal to this Court.

After hearing the counsel for the parties, I am of the view that the decision of the trial Court on the point of relationship was correct and in accordance with Section 50 of the Evidence Act whereas that of the first appellate Court is clearly erroneous as Section 50 was misunderstood by it. The lower appellate Court has relied on a Single Bench decision of this Court in Ajaib Singh v. Mann Singh (1968) 70 P.L.R. 83, for coming to the conclusion that the evidence brought on record by the Plaintiffs is inadmissible. Before I proceed to discuss the evidence, it would be necessary to notice the scope of Section 50 of the Evidence Act and the relevant authorities thereon The Supreme Court in Dolgobinda Paricha Vs. Nimai Charan Misra and Others, , interpreted Section 50 of the Evidence Act and described the meaning of ''special means of knowledge'' and conduct contained in that section. The aforesaid decision of the Supreme Court was noticed in Ajaib Singh''s case (supra) and the correctness of that decision was doubted and the matter was referred to a Full Bench The Full Bench in Amar Singh v. Chhaju Singh and Anr. 1972 P.L.R. 625 (per majority) relied on the Supreme Court decision in Dalgobinda''s case (supra) and explained the decision in Ajaib Singh''s case (supra), with the result that Ajaib Singh''s case no longer holds good. Therefore, I will go through the evidence brought on record on the basis of the decisions of the Supreme Court and the Full Bench of this Court.

Both the Plaintiffs appeared as P.W. 1 and P.W. 2. The Court below discarded their statements merely on the ground that they were parties to the litigation. That would be no ground to discard their statements. Rather, they should have been read with caution. I am of the opinion that their evidence should have been appreciated along with other evidence brought on the record.

Even if the statements of the Plaintiffs are ruled out of consideration, lam of the view that the relationship of the Plaintiffs with the vendor is fully proved from the statements of 5 rot. Avtar Kaur P.W 3 and Dalip Singh P.W. 4. Smt Avtar Kaur has stated that she is the sister of the Plaintiffs and as such has special means of knowledge about the relationship. Besides staling that Plaintiffs are her brothers, it is in her evidence that Hazara Singh is her father. She further stated that the Plaintiffs have been addressing Hazara Singh as Bapu and Hazara Singh called them by their names. This show the conduct on the part of the Plaintiffs qua Hazara Singh Dalip Singh, P. W. 4 has deposed that his grandfather Nihal Singh and Khushal Singh, father of Hazara Singh were real brothers and were living in a village in Pakistan. He has stated that the Plaintiffs addressed Hazara Singh as Bapu and Hazara Singh called them as Putar (son). The statement of this witness is clearly in accordance with Section 50 of the Evidence Act and is admissible, according to the aforesaid decisions of the Supreme Court and the Full Bench of this Court. The Appellate Court was, therefore, clearly in error in coming to the conclusion that there is no evidence of conduct in the statements of Smt. Avtar Kaur and Dalip Singh. Accordingly, I hold that the statements of P. W. 3 and P. W. 4 were admissible in evidence and they have proved that the Plaintiffs are the sons of the vendor.

For the reasons recorded above, this appeal is allowed, the judgment and decree of the first appellate Court are set aside and those of the trial Court are restored. However, there will be no order as to be costs.