Dalip Singh and Others vs Uttam Sigh

This second appeal arises out of a suit for possession by pre-emption by Uttam Singh plaintiff respondent. Smt. Ishri widow of Kehar Singh and mother of Kartar Singh deceased sold land measuring 79 Kanals 14 Marlas along with some other property as described in the plaint,. In favour of defendants-appellants for a sum of Rs. 10.945/-. Uttam Singh plaintiff is the son of brother of Kehar Singh. He claimed a right to pre-empt the sale and hence the suit.

The vendees, defendant-appellants resisted the suit denying plaintiffs superior right of pre-emption. It was pleaded that the sale price was paid and fixed in good faith. There were other pleas also taken and the parties went to trial on the following issues:-

Whether the plaintiff has got a right of pre-emption?

Whether the alleged sale price of Rs. 10945/- was actually paid or fixed in good faith?

If not, what was the market price of the suit land on the date of sale?

Whether the suit is bad for partial pre-emption?

Whether the suit is correctly valued for purposes of court-fee and jurisdiction?

Relief.

Relationship of the plaintiff with the vendor, as alleged by him was held to have been proved by oral evidence and also from the pedigree-table Exhibit P. 1. In the plaint, the plaintiff had stated that he was claiming the right of pre-emption u/s 15 of the Punjab Pre-emption Act, 1913, as amended by Punjab Act No. 10 of 1960 (hereinafter called the Act). it was not specifically pleaded that the suit land was inherited by the vendor Smt. Ishri from her husband or son. The defendants in their written statement made an assertion that the vendor was the sole owner of the property in dispute and in the replication filed by the plaintiff there was again no averment that Smt, Ishr, vendor, inherited the property from her husband or her son and on that ground the plaintiff became entitled to pre-empt u/s 15 (2) (b) of the Act. if she was the sole owner as alleged by the appellants, the plaintiff could not have any right to pre-empt as the case would then be governed by Section 15 (1) (a). the trial Court came to the conclusion that the plaintiff had not pleaded that his case fell u/s 15 (2) (b) and that even if it be assumed that the pleadings did cover what was sought to be made out at the trial namely that Smt. Ishri had succeeded to the property through her son Kartar Singh deceased, there was no evidence to establish this plea. Issue No. 1 was thus decided against the plaintiff. The other issues were not disposed of in view of the finding on issue No. 1 and the suit was dismissed.

An appeal filed by the plaintiff before the District Judge succeeded it being held that it stood established that the plaintiff had a superior right of pre-emption with regard tot he property in dispute as Smt. Ishri succeeded to the same from her deceased son Kartar Singh. The case was accordingly remanded to the trial Court for determination of the remaining issues.

Defendants vendees have come up in second appeal to this Court.

6 The sole question that arises for consideration is as to whether the plaintiff is possessed of a superior right of pre-emption. The learned District Judge placed reliance on the pedigree-table, Exhibit P. 1 and the Jamabandi of Chak No. 86 G. B. (Exhibit P. 4), district Lyallpur (Pakistan), for the year 1947-58, pertaining to the land situate there in lieu of which the land in dispute had been allotted to Smt. Ishri by allotment order Exhibit P. 5

Mr. C. L. Lakhanpal, learned counsel for the appellants, has strenuously contended that an entry in the pedigree -table showing relationship of the plaintiff with the vendor Smt. Ishri is not by itself enough to prove that the suit land came to the latter by inheritance from her son Karta Singh deceased. It is further contended that the plaintiff never based his right of pre-emption on the grounds specified in Section 15(2) (b) of the Act. the argument is that right of pre-emption as contemplated in this provision of law could arise only on th existence of certain facts which constituted condition precedent to the exercise of that right and those facts should have been pleaded by the plaintiff, and that in the absence of such a pleading, no amount of evidence could be looked into. There is substance in the contention of the learned counsel that it is not proved that the land in Pakistan, assuming that the suit, land had been allotted in lieu thereof. was inherited by Smt. Ishri from her deceased son. Jamabandi, Exhibit P. 4 indicates only this much that Smt. Ishri, described as mother of Kartar Singh, was occupying 54 Kanals 14 Marlas of land of Khewat No. 30 and that she was having ownership rights in another area of land measuring 54 Kanals 9 Marlas out of Khewat Nos. 31 and 32. The land in Khewat Nos. 31 and 32 had been mortgaged by Smt. Ishri in favour of two persons, Harnam Singh and Sher Singh. In the pedigree-table, these Khewat Nos., are shown as having been held by Smt. Ishri and similarly some other Khewat Nos. by the plaintiff. The areas of these Khewat Nos. by the plaintiff. The areas of these Khewat Nos. held by the two lines of the same family are not known.

Mr. B. S. Jawanda, learned counsel for the plaintiff-respondent, submits that the only inference that can reasonably be drawn from entries in the pedigree-table and the Jamabandi is that the suit land devolved upon Smt. Ishri the suit land devolved upon Smt. Ishri by inheritance. Uttam Singh plaintiff is shown as holding Khewat Nos. 33, 34, 35 and 36, whereas Smt. Ishri held Khewat Nos. 30, 31, and 32. It urged that the two lines of Arjan Singh father of Kehar Singh and Sher Singh are shown as holding lands and that Ishri must have got the same as an heir on the death of her son Kartar Singh. The learned counsel lays stress on paras 8 and 10 of Appendix VIII in the Punjab Settlement Manual which lays down instructions to be followed by revenue officers in the matter of preparation of revenue records. These two paras cannot possibly be of any assistance to the learned counsel. Para 8 only provides that if an owner has lost his land (whether by sale or by diluvion), but he there by sale or by diluvion ), but he claims a share in the shakilat, a note be made under his name in te genealogical tree, but no such holding will be shown in the Khatuauni or jamabandi, Para 10 enjoins upon the officers that an owner by purchase should be entered on the left of the sub-division, taraf or patti in which he has purchased, and that a note should be added below his name showing from whom he purchased.

The argument raised is that if Smt. Ishri had purchased land from any one, revenue officers would have made entries in accordance with the instructions contained in the said Manual. I am afraid this argument is wholly fallacious. It was the plaintiff who came to court to establish his right of pre-emption and the burden was on him to prove by positive evidence that the suit land had been inherited by Smt. Ishri from her son Kartar Singh deceased and it was not for the defendants vendees to prove that she acquired this land by purchase. The mere mention of the name of a female landowner in the settlement pedigree-table describing her as a widow or a mother of the deceased landowner cannot by itself raise a presumption that she inherited the land from the deceased person. A plaintiff who has to establish a right based on the fact that the female inherited the property from her son or husband has to independently prove that fact and mere entry in the pedigree-table will be of no avail howsoever strong may be the suspicions. The trial Court, in my opinion, took a correct view of law in holding that entries in the Jamabandi and the pedigree-table were not sufficient in the instant case to prove that the land was inherited by Smt. Ishri from Kartar Singh deceased. A finding cannot be based on mere conjectures or suspicions but on definite substantive evidence which is not available in the present case, No mutation of inheritance was produced by the plaintiff nor any copy of the Jamabandi making reference to any such mutation. Oral evidence was rightly discarded by both the Courts below.

I also agree with the learned counsel for the appellants that a plaintiff in a pre-emption suit who relies on Section 15(2) (b) of the Act must plead the necessary facts as contemplated therein. The exercise of right of pre-emption is restricted to different classes of person possessing certain qualifications and those qualifications must be pleaded. No such right is available u/s 15 (2) (b) unless the female vendor has inherited the property form her husband or son. Inheritance as well and when she is the sole owner having not succeeded to a deceased husband or a son, sale by her will be pre-imputable by a different class of persons than if the sale is in respect of property so inherited. Merely pleading that a plaintiff has a right of pre-emption u/s 15 of the Act is not enough

For the foregoing reasons, the appeal must be allowed, judgment of the District Judge set aside and the decree of the trial Court dismissing the suit of the plaintiff restored. There is no order as to costs.

Appeal allowed