Gulwant Singh and another vs Satish Kumar

Harbans Singh, J.—This appeal has arisen out of a suit for possession by pre-emption of a vacant plot of land measuring 2 marlas and 1 sarsahi situated in the abadi of village Dhamain, Police Station, Mukerian, Tehsil Dasuya in District Hoshiarpur on payment of Rs. 35/-.

The facts giving rise to the controversy between the parties are as follows:

Adjoining the house of Gluwant Singh, defendant, there was a plot of land which was claimed to be the: property of Gulwant Singh. Piare Lai claimed the possession of the same on the basis that it was allotted to his wife Urmila Devi by the Custodian, being the evacuee property. The dispute between the parties led to the proceedings before the police. On 21st of April, 1963 vide copy Exhibit D.A., the parties entered into compromise through the instrumentality of the Panchayat. The relevant terms were as follows:

One-half of the taur in dispute less 2 hath towards the west will be transferred in favour of the other party (Gulwant Singh) by Piare Lal from his wife for a sum of Rs. 25/- within the period of two weeks. The cost of the registration will become by the purchaser. After the sale-deed has been executed, the other party (Gulwant Singh) will vacate and hand over the possession of the remaining portion to Piare Lal.

Apparently, in pursuance of this compromise, on 6th of May, 1963, the sale-deed was executed by Urmila Devi, wife of Piare Lal, transferring the taur now in dispute to Gulwant Singh for a some of Rs. 35/-, Rs. 10/- being towards the cost of registration etc. Some months thereafter, that is, on 6th of May, 1964. the suit out of which the present appeal has arisen, was filed by the minor son of Piare Lal for possession by preemption. The suit was resisted and the status of the plaintiff as the son of the vendor was also challenged. It was further pleaded that the plaintiff was only a benami pre-emptor. Number of issues were settled, but the main issue in the case was, however, whether the transaction in dispute was not a sale and was not pre-emptible. Both the Courts below came to the conclusion that the sale was effected as a result of the compromise settling the dispute between the parties. This is what the lower Appellant Court says:

The sale transaction was, therefore, the result of settlement of the dispute between Piare Lal on one side and the defendants appellants on the other. The transaction, however, cannot be described anything other than sale.

In view of the above and holding that the plaintiff was the son and, therefore, had a superior right, the suit of the plaintiff was decreed. The vendees have come up in appeal.

There can be no manner of doubt that the transaction, as is evident from the sale-deed, is a sale. The next question is, what was the consideration for the sale in question. The vendees claimed to be the owners of the entire tour as it existed at that time. The other party, that is, Piare Lal claimed that the same had been allotted to his wife. It also appears from the record that the possession of the entire taur was with Gulwant Singh vendee. By the settlement arrived at between the parties more than one-half was to be retained by Piare Lal and the other half, leaving out a length of 2 haths was to be given over to Gulwant Singh for a sum of Rs. 25/- plus costs of registration. After the sale-deed was to be completed, Gulwant Singh was to hand over the possession of the remaining part of the vacant plot. Thus it is obvious that the consideration for the plot was not only Rs. 25/- paid in cash and Rs. 10/- paid towards the expenses of registration, but there was the further consideration of Gulwant Singh handing over to the other party one-half of the remaining plot as well as the settlement of the disputed title to the plot in question. It was not a sale pure and simple in which possession can be delivered to the pre-emptor and he can be called upon to return to the vendee the entire consideration paid by him. A similar case with more or less similar facts is reported in Hamir Singh v. Sunder Singh A. I.R. 1928 Lah. 174. There three sales were effected by two sonless proprietors. These were challenged by the reversioners who sought the usual declaration that the sales would not be binding on them. The cases were compromised by which the vendees agreed to resell the plots of land to the various reversioners for a sum, little less than what they had paid in purchasing them. The two courts came to the conclusion that the transaction was a sale and, therefore, pre-emptible. On appeal, the learned Judge observed as follow:

Even if it were decided that the transactions were sales pure and simple then the question is what was the consideration for each sale. It was not only the money which the reversioners contracted to pay, but also the abandonment of their rights, to secure which they had instituted the suits. It is obvious that the vendees one and all would not have agreed to re-sell the lands to the reversioners if they had not been apprehensive of the results of the litigation. Thus the reversioners got the lands not as ordinary purchasers, nor in pursuance of a bargain in open market, but as reversioners. It follows, therefore, that besides the money that they agreed to pay there was the additional consideration for the sales that the suits were withdrawn. This additional consideration cannot be valued in money, but the pre-emptors must pay the whole of the consideration before they can get the lands. As they cannot possibly do this, they cannot succeed in their suits.

I feel that the above observations apply with full force to the facts of the present case. In addition to the money, what the vendees gave in consideration was the settlement of the disputed title and the giving up of the possession of the remaining portion of the land. This cannot be measured in terms of money paid and it is not possible for the pre-emptor to pay full consideration for the aforesaid sale.

For the reasons given above, I feel that though the transaction, on the face of it, is a sale as found by the Courts below, yet it is not possible to find that this sale is pre-emptible. I, therefore, accept this appeal, set aside the judgment and decree of the Courts below and dismiss the suit of the plaintiff. There would, however, be no order as to costs here on the Courts below.