Hazari Lal and others vs Falku and another

P.C Pandit, J.—On 19th June. 1965, by a registered-deed, Gian Chand and 19 others sold agricultural land, measuring 103 Bighas and 7 Biswas, being 1/3rd of 310 Bighas and 1 Biswa situate in village Kamoda, District Karnal, to Dalip Singh and 5 others, for Rs. 17,700/-. On 20th August, 1965, the vendees sold this very land along with some other property to Hazari Lal and 6 others. On 28th May, 1966, a suit for pre-emption was brought by Falku and Shana Ram, minor, regarding the sale dated 19th June 1965. The plaintiffs claimed pre emption on the ground that Mehnga Ram and Bhagat Ram, their fathers, were amongst the vendors of this property. It was further alleged by them that the sale in fact had taken place for Rs. 15.000/- and this was the amount, which was actually paid to the vendors. According to them, the market value of the property was also the same.

The suit was registered by Hazari Lal and others the subsequent vendees. They denied the relationship claimed by the plaintiffs and also pleaded that the sale had taken place for the amount mentioned in the sale-deed.

The trial Court decreed the suit on payment of Rs. 18,857.25, Rs. 1157.25 being the execution and registration expenses. It was held that the plaintiffs, as sons of the two vendors, were entitled to pre-empt the whole sale. It was further held that the entire sale-price fixed in the sale-deed was paid to the vendors. It was found that the vendees were also entitled to the execution and registration expenses.

Aggrieved by this decision, Hazari Lal and others went in appeal before the learned Additional District Judge, Karnal. He was of the view that the plaintiffs were not entitled to pre-empt the entire sale, because their right of pre-emption extended to the share of their fathers, as also of their uncles, in the property sold and all of them were admittedly the vendors. As a result, he decreed the suit to the extent of Rs. 1196/4120th share in the property sold on payment of the proportionate sale consideration of Rs. 15,700/- which came to Rs. 5136.23 plus Rs. 1157.25 on account of expenses for execution and registration of the sale-deed. Against this decision, the present second appeal has been filed by Hazari Lal and others.

Learned Counsel for the appellants has raised two contentions before me. In the first place, it has been submitted that the learned Additional District Judge had erred in law in decreeing the suit of the pre-emptors regarding the shares of their alleged uncles in the property sold. It was said that the plaintiffs in the plaint never claimed that they were entitled to pre-empt their shares as well. That being so, no decree could be passed in their favour as regards the shares of Wallu Ram, his brother Sher Chand and Gulami Ram and his brother Phaggu Ram. Secondly, the submits that the suit, if at all had to succeed, should have been decreed on payment of the entire sale-price mentioned in the deed and there was no valid reason for deducting the amount of Rs. 2,000/- therefrom, because the plaintiffs had not proved that Rs. 2,000/- had not been actually paid to the vendors.

Coming to the first contention, the learned Judge had decreed the suit even regarding the shares of the plaintiffs'' uncles on the basis of the decision of the Full Bench in Moti Ram v. Bakhawant Singh (1967) 69 PLR 1041, and it was stated by the learned Judge that in that case though the plaintiffs had not claimed the right of pre-emption u/s 15(2) of the Punjab Pre-emption Act, hereinafter called the Act, yet the decree was passed in their favour on that ground. Similarly, in the present case, according to the learned Judge, though the plaintiffs did not specifically urge that they were entitled to pre-empt the sale of the share of their uncles, still they were entitled to do so, because as a matter of fact, they were the brothers'' sons of the said vendors. I have gone through the judgment of the Full Bench. From a reading thereof, it is not clear as to whether or not the plaintiffs in that case claimed the right of preemption u/s 15(2)(b) of the Act. I have also perused the judgment of the trial Court in that case, and there it was mentioned, "It appears to me that the plaintiffs have no right to pre-empt the sale so far as it relates to the share of Shrimati Ind Kaur. Under clause (b) of sub-section (2) of section 15 of the same Act, the right of pre-emption vests in the sons of Ind Kaur. I presume that Ind Kaur got the property in dispute from her husband. Admittedly, the plaintiffs are not the sens of Ind Kaur. They have, therefore, no right to pre-empt the sale to this extent." This gives an indication that the plaintiffs there claimed to pre-empt the sale regarding the share of Ind Kaur as well u/s 15(2)(b) of the Act. In any case, one cannot definitely say that no claim was made by the plaintiffs regarding the share of Ind Kaur u/s 15(2)(b). Secondly, from the judgment of the Full Bench, one thing is certain that this precise point was not debated before the learned Judges. It was not argued that because in the plaint the plaintiffs had not claimed to pre-empt the sale of Ind Kaur''s share u/s 15(2)(b) of the Act, therefore, no decree could be passed in their favour on that ground. If the said point was not taken, it cannot be held that the Full Bench was giving a considered decision on the same that even if somebody does not claim in the plaint the right of pre-emption on a particular ground, he can still get a decree on that basis. Thirdly, the relationship of the plaintiffs with Ind Kaur was not in doubt in that case. It was assumed that the plaintiffs were the step-sons of Ind Kaur and on that basis, it was held that they could pre-empt the sale of her share u/s 15(2)(b), Such was not the position in the present case. Under these circumstances, I am of the view that it would not be quite correct to apply the decision of the Full Bench in Moti Ram''s case to the facts of the instant case, and hold that the plaintiffs were entitled to preempt the share of their alleged uncles in the property as well. Mehar Singh C.J. in Shankar Singh v. Chanan Singh 1968 Curr. LJ 363, held that the specific ground, on which preferential right of pre-emption was sought, must be pleaded in the suit within the period of limitation. Indisputably, in the present case, the plaintiffs had claimed pre-emption on the ground that their fathers were the vendors of the property, but it was not alleged by them that their uncles also sold their shares therein.

This apart, it was urged by the Learned Counsel for the appellants that as the plaintiffs'' case in the plaint was not that their uncles were also the vendors, therefore, the vendees had no opportunity of denying that fact, with the result that no issue was framed on this point. From the judgment of the learned Judge, it appears that he had merely assumed that Wallu Ram and Sher Chand were the uncles of Falku, while Gulami Ram and Phaggu Ram were the uncles of Shana Ram, minor. If the relationship has not been established, then admittedly the other question, namely, that the plaintiffs could pre-empt their shares in the property, in spite of the fact that this plea was not taken in the plaint, would not arise. Learned Counsel for the respondents, on the other hand, pointed out that on the record, there was a Jamabandi of the year 1963-64 (not exhibited) and the sale-deed in dispute, dated 19th June, 1965, Exhibit D. 2, which showed that Wallu Ram and Sher Chand were the uncles of Falku and Gulami Ram and Phaggu Ram were the uncles of Shana Ram minor. It was urged by the counsel for the appellants that the names of the fathers of Phalli Ram and Sardari Lal had not been given in the sale-deed, as had been done in the Jamabandi papers and, therefore, it could not be said with certainty that Mehnga Ram or Bhagat Ram, who were the fathers of the pre-emptors, Falku and Shana Ram, minor, respectively, were the sons of the same Phalli Ram and Sardari Lal, whose sons were Wallu Ram and Sher Chand, and Gulami Ram and Phaggu Ram, respectively. Be that as it may, but as I have already said, since there was no issue on this point, the vendees had no opportunity of showing that this alleged relationship was not correct In these circumstances, the plaintiffs can only pre-empt the sale, firstly, regarding which they have a right of pre-emption and, secondly, if they have claimed that particular right in the plaint. That being so, the plaintiffs could get a decree for possession regarding the shares of their fathers, namely, Mehnga Ram and Bhagat Ram, only and for getting possession of their shares, they would have to pay the proportionate price of the sale-consideration.

As regards the second contention raised by the Learned Counsel for the appellants, the learned Judge had observed that the vendees had led no evidence to prove the payment of Rs. 2,000/-. In the sale-deed, it was mentioned that Rs. 2,000/- were taken as earnest money and Rs. 15,700/- were paid before the Sub-Registrar. Neither any receipt had been produced regarding that amount and nor had any of the vendees come into the witness-box to depose that the said sum was as a matter of fact paid to the vendors. The finding of the learned Additional District Judge on this point, being one of fact, is, therefore, unassailable.

In view of what I have said above, I will partly accept this appeal, modify the judgment and decree of the learned Additional District Judge and decree the plaintiffs'' claim for possession of the property to the extent of 492/4120th share on payment of the proportionate sale consideration of Rs. 15,700/-, which admittedly comes to Rs. 1883.22 paise, plus Rs. 1157.25 on account of expenses for execution and registration of the sale-deed. In the circumstances of this case, however, I will leave the parties to bear their own costs. It may be stated that the share and the proportionate sale consideration mentioned in this paragraph had been calculated by the counsel for both the parties themselves.