Hardial Singh vs Mool Chand

J. V. Gupta, J.

This judgment will dispose of Regular Second Appeals Nos. 2342, 2343 and 2344 of 1983 and 89, 97, 86 and 88 of 1984, as all these appeals have been filed against the common judgment of the Additional District Judge, Karnal, dated 27th September, 1983.

Four brothers Mool Chand, Ishwar Chand, Bishan Dass and Tek Chand sons of Assa Nand, sold their lands to Hardial Singh, Ashok Kumar and Smt. Phul Kaur by different sale deeds. Mool Chand sold the land measuring 24 kanals for Rs. 28,500/ vide sale deed dated 10th June, 1977, Ishwar Chand sold land measuring 22 kanals 5 marlas for a sum of Rs. 28,500/ on 18th June, 1977, Bishan Dass sold land measuring 22 kanals 5 marlas on 18th June, 1977 for a sum of Rs. 28,500/ and Tek Chand sold his land measuring 24 kanals 7 marlas for a sum of Rs. 30,500/ on 7th May, 1977. Rakesh Kumar son of Ishwar Chand vendor filed four suits challenging the said sales made by his father and his father''s brothers claiming that he has a superior right of preemption being the son of vendor Ishwar Chand and the vendor''s brother''s son of the other three vendors. The suits were contested on behalf of the vendees inter alia on the ground that defendants No. 2 and 3 i.e. Hardial Singh and Ashok Kumar s/o Vijay Singh were the tenants upon the suit land at the time of sale and as regards the third vendees Smt. Phul Kaur, she was only a benamidar the actual vendees were Hardial Singh and Vijay Singh. Secondly, the suit land being the joint Hindu family property of the vendors qua the pre emptor, the sale was not preemptible under Section 10 of the Punjab Pre emption Act. The trial Court found that the vendee defendants No. 2 and 3 had successfully proved that they were tenants on the suit land at and before the time of sale, under the vendors and the purchase of suit land by defendant No. 4 i.e. Smt. Phul Kaur was benami. The plea under Section 10 of the Punjab Preemption Act taken on behalf of the defendants was negatived. In view of the earlier finding, all the suits filed by the plaintiffs were dismissed. As regards the sale made by Ishwar Chand father of the plaintiff preemptor, it was further found that the suit property was joint Hindu family property and therefore the sale was not preemptible under Section 10 of the Punjab Pre emption Act. Dissatisfied with the same, plaintiffpreemptors filed four appeals in the Court of Additional District Judge, Karnal. In appeal, the learned lower appellate Court found that the sale in favour of Smt. Phul Kaur was not benami as held by the trial Court. However, the finding of the trial Court that the other two vendees Hardial Singh and Vijay Singh were the tenants on the suit land at the time of sale was upheld. The finding in the case of sale by Ishwar Chand father of the plaintiff was maintained to the effect that the suit was not maintainable in view of Section 10 of the Punjab Preemption Act. Thus ultimately the plaintiff''s suit with respect to the sale made by his father Ishwar Chand was dismissed whereas in the other three suits with respect to the sale of 2/3rd share in favour of Hardial Singh and Vijay Singh were also dismissed but plaintiff''s suit to the extent of 1/3rd share of Smt. Phul Kaur was decreed on payment of proportionate sale price. Dissatisfied with the same, both the parties have filed the said appeals.

The plaintiff has filed Regular Second Appeal Nos. 86, 87, 89 and 88 of 1984 whereas the other appeals have been filed on behalf of the vendees.

The learned counsel for the plaintiffpreemptor contended that it has been wrongly found by the Courts below that Hardial Singh and Vijay Singh vendees were the tenants on the suit land at the time of the sale. According to the learned counsel, the change in the entries of Khasra Girdawari in Kharif 1976 was manipulated by the defendants, no notice was given to the vendor before effecting the change in the Khasra Girdawari nor the procedure prescribed under the Instructions of the Financial Commissioner to all the Revenue Officers was complied with. Thus argued the learned counsel, the Courts below have wrongly relied upon the said entries in the Khasra Girdawari in Kharif 1976. It was further argued that in the Jamabandi for the year 19741975, Exhibit P.4 the entries in the column of cultivation are self cultivation and there being presumption of truth to the entries in the Jamabandi, it cannot be held that the vendeedefendants were tenants on the suit land at the time of sale. Thus argued the learned counsel, the finding upheld by the lower Courts was illegal and wrong and the said finding is untenable. In support of his contention he referred to Durga (deceased) v. Milkhi Ram, 1969 PLJ 105 (SC), and Amal Kumar v. Bhupinder Singh and others, 1976 PLJ 26. Argument was also raised that in any case, even if the two vendees are found to be the tenants on the suit land at the time of the sale, even then they were not protected because they had joined a stranger Smt. Phul Kaur with them. In support of this contention reliance was placed on Full Bench judgment of this Court reported in Garib Singh v. Harnam Singh and others, 1971 PLJ 579.

I have heard the learned counsel for the parties and have also gone through the relevant evidence on the record. The change in the Khasra Girdawari for Kharif 1976 was made on the basis of reportcumorder made by the Girdawar Kanungo dated 9th November, 1976 vide Exhibit P.W. 7/B. According to the lower appellate Court, since the entries were made by the Kanungo, the Instructions of the Financial Commissioner for making the necessary corrections were not necessarily to be complied with. The relevant observation made by the lower appellate Court are :

"Though the learned counsel has contended that it would not make any difference whether the entries are made by the Patwari or the Kanungo. I am of the opinion that it does make a difference. Kanungo is a Field Officer and according to the Punjab Land Records Manual revised edition Annexure A at page 221 the Inspecting Officer is to see as to whether a Kanungo makes entries in the Khasra Girdawaris after the spot inspection or not. Even otherwise the Instructions of the Financial Commissioner and two judgments referred to above only refer to the change in Khasra Girdawari made without notice by the Patwari and not by the Kanungo and Officers above him and rightly so because the Officers above Patwari i.e. Kanungo and others inspect the work of Patwari and incorporate change at the spot after verifying the fact from the respectables of the Village and basing the same on their own observations. When a Kanungo can be checked under the Punjab Land Records Manual for not incorporating the spot position, it stands to reason that he is not to follow the Instructions of giving notice etc. which are enjoined upon the Patwari by the Financial Commissioner.''''

It appears that the said observations of the lower appellate Court are not sustainable as such. It could not be said that there was no necessity of issuing any notice to the landowners before making necessary change in the Khasra Girdawari. As a matter of fact, it will be immaterial whether the report is made by the Patwari or Kanungo, the Instructions issued by the Financial Commissioner in this behalf are to be followed.

In any case, the matter does not rest here. The plaintiffs produced Patwari Kuldip Singh P.W. 9. In his examinationinchief, he has stated that the notice of the change of Girdawari was given to the landowners but he again stated that he has not brought the notice file nor they maintain any such file. From this it has been inferred by the Courts below that no notice as such was given to the landowners before effecting the change in the Khasra Girdawari. From the perusal of the report Exhibit P.W. 7/B, it is found that it was made on the basis of an application made by the vendees. It has been recited therein that the necessary correction has been made as per averments in the application and the Patwari Halqa was directed that he should inform the landowners to that effect. Apart from that, that is not the only evidence on which the lower appellate Court has come to the conclusion that the vendees were the tenants at the time of sale. Admittedly the three vendors are in service and, therefore, could not be in selfcultivation of the suit land as such. It was for them to show that through whom the land was being cultivated by them. No such evidence was led by the plaintiff. Moreover, no effort was made by the landowners to get the said entry corrected at any time. Their silence and inaction also shows that the entries were correct. Moreover, apart from the revenue entries being in favour of the defendants, the plaintiff has also not been able to establish that the suit land was really in possession of the vendees in Rabi 1977. In such a circumstance the matter had to be decided on preponderance of evidence for and against and not necessarily on the basis that the vendee had to conclusively prove that he was a tenant on the land in dispute under the vendors at the time of the sale, as held by a Division Bench of this Court in Gurdev Singh v. Barjinder Singh and others, 1973 PLJ 314. In these circumstances, there being a concurrent finding of fact by both the Courts below, that the vendees are the tenants on the suit land, the same could not be said to have been vitiated in any manner. Moreover, I do not find any illegality or infirmity in the said finding as to be interfered with in second appeal.

As regards the argument that since the two vendees who have been found to be tenants on the suit land have joined a stranger with them, they are not entitled to claim exemption, and they have also forfeited the right to resist the plaintiff''s suit is also not tenable in view of the judgments of this Court reported in Kartar Singh v. Manphul and others, 1973 PLJ 29, and Rur Singh and others v. Ram Murti and others, 1977 PLJ 332. In both the authorities, Full Bench judgment in Garib Singh''s case (supra) relied upon by the plaintiff, has been discussed and distinguished. It has been held in Kartar Singh''s case (supra) that the rule that a vendee who associates with himself in the sale a stranger reduced himself to the status of his covendee and thereby cannot resist the claim for preemption on the basis of his own qualification or status, cannot be taken into consideration while deciding cases covered by Section 17A(1) of the Punjab Security of Land Tenure Act. The interest of the tenant in the land sold has to be considered whenever there is a sale by the owner in his favour along with others and the land sold to the tenant is exempted from preemption under Section 17A of the said Act.

It was next contended on behalf of the plaintiffpreemptor that the property in dispute in suit filed with respect to the sale made by Ishwar Chand father of the plaintiffpreemptor could not be held to be joint Hindu family property and, therefore, it has been wrongly held that the same was not preemptible under Section 10 of the Punjab Preemption Act. In support of his argument, learned counsel for the appellant referred to Para 340 of the Hindu Law by Mulla which reads as under :

"The effect of a partition is to dissolve the coparcenary, with the result that the separating members thenceforth hold their respective shares as their separate property, and the share of each member will pass on his death to his heirs. But if a member while separating from his other coparceners, continues joint with his own male issue, the share allotted to him on partition will in his hands retain the character of coparcenary property as regards the male issue.''''

On the other hand, learned counsel for the vendees referred to Para 223(4) which is to the following effect :

223(4) "The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession.''''

It is the common case of the parties that the suit land sold by Ishwar Chand father of the plaintiff was inherited by him from his father Assa Nand. Once it is so found, then clause (4) of Para 223 is attracted. Ishwar Chand got the property on partition of ancestral property which partition had taken place between their father Assa Nand and the four brothers i.e. the sons of Assa Nand. Thus it has been rightly held by the Courts below that as regards the sale by Ishwar Chand, the plaintiff being his son could not challenge the same in view of the provision of Section 10 of the Punjab Preemption Act.

No other point arises nor has been argued. Consequently, all the appeals fail and are dismissed with no order as to costs.