Kamla and Others vs smt. Laxmi Bat and Another

J.V. Gupta, J.—This is Defendants'' second appeal against whom the suit for possession by way of pre-emption has been decreed by both the Courts below.

Smt. Bholi Bai sold 146 kanals 2 marlas of land to the vendees-defendants-appellants, vide registered sale deed dated June 9, 1966, Exhibit D-l, for a sum of Rs. 25,000/-. The Plaintiff Respondent claimed the right of preemption on the ground that she was the daughter of the vendor. The suit was filed on June 8, 1967. In the written statement filed on behalf of the Defendants-appellants, it was pleaded that the Plaintiff was not the daughter of the vendor, nor she had any preferential right of pre-emption. It was also pleaded that the suit was barred by limitation and that the vendor owned more than 40 standard acres of land and for this reason also, the suit was liable to be dismissed. A farther-plea was also taken that the Defendants were tenants on the suit land on the date of the sale; hence the sale was not pre-emptible. The trial Court found that the Plaintiff was the daughter of the vendor and that she had a superior right of pre-emption. The suit was also held to he within time. It was further found that the Defendants had not been able to prove themselves to be the tenants on the suit land at the time of the sale. Consequently, the decree for possession of the suit land on payment of Rs. 26,862/- i.e. Rs. 25,000/- as the sale consideration and Rs. 1,862/- as the deed expenses. was passed. In appeal, the learned Additional District Judge affirmed the said findings of the trial Court and thus maintained the decree passed in favour of the Plaintiff by the trial Court. Dissatisfied with the same, the Defendants have come up in second appeal to this Court.

The Learned Counsel for the Appellants vehemently contended that the suit as brought by the Plaintiff was barred by time because according to the finding of the lower appellate Court, the plaint will be deemed to have been presented on June 13, 1967, whereas the vendees had already taken possession of the suit land under the sale deed on June 9, 1966- Thus, the suit having been filed after more than one year therefrom, was barred by time under article 97 of the Limitation Act. According to the Learned Counsel, it has been wrongly held by the lower appellate Court that the vendees had not taken possession of the whole or part of the suit property on a date prior to June 13, 1966. In the sale deed, argued the Learned Counsel it has been recited that the vendees are already in physical possession as tenants and that possession by way of ownership has been delivered to them under the deed.

After hearing the Learned Counsel for the parties on this point, I do not find any force in this contention.

Admittedly, the plaint was presented on June 8, 1967. On that day, the Presiding Officer was holding his circuit Court at Narnaul and, therefore, the Reader of the Court before whom the plaint was presented on June 8, 1967, made the following endorsement thereon:

Presented today by Shri Arjan Singh, Advocate, counsel for the the Plaintiff. Put upon 13th June, 1967 before the permanent Sub-Judge, who is today holding his circuit Court at Narnaul, for necessary orders." According to the Appellants, the presentation of the plaint on June 8, 1967, before the Reader was of no consequence because there is nothing on the record to prove that he was competent or authorised to receive the plaints in the absence of the Presiding Officer. In support of this contention, the Learned Counsel relied upon Basanta Kumar v. Lakshma Moni AIR 1968 Ass 57, AIR 1928 484 (Lahore) and Nur Muhammad v. Ghulaman AIR 1934 Lah. 622 After going through the said judgments, I am of the considered opinion that none of the said cases has any bearing on the facts of the present case. The trial Court relied upon Tara Singh v. Ajit Pal Singh 1971 Cur. LJ 882 to come to the conclusion that as the Presiding Officer was holding circuit Court at another place, the presentation of the plaint on June 8, 1976, to the official of the Court, i.e., the Reader, has to be deemed to have been done on June 8, 1967, though in appeal, the learned Additional District Judge took the view that even if the plaint be deemed to have been presented on June 13, 1967, when the Presiding Officer came back and took charge of his office, even then the suit was within time as there was nothing on the record to show that the vendees had taken possession of the suit land under the sale on June 9, 1966. However, 1 am of the considered opinion that on the facts and circumstances of the case, and in view of the endorsement made by the Reader on June 8, 1967, when the plaint was presented to him, the suit will be deemed to have been instituted on that day. The ratio of the decision of this Court in Tara Singh''s case (supra), is fully applicable to the facts of the present case. In the said case, the learned Judge relied upon Rule 7(c) of Chapter I-B of the High Court Rules and Orders, Volume 1, wherein it is clearly provide 1 as follows:

The members of the ministerial establishment are strictly for-bidden to receive petitions, plaints or other documents direct from lawyers and their clerks or from litigants except when the Judge is on leave and no other judicial officer is incharge of his current duties" in that case, the Presiding Officer had been transferred and his successor had not assumed office, and, therefore, the plaint was received by the clerk of the Court. This was held to be perfectly in order under the above-said High Court Rules and Orders. Similarly, in the present case, as the Presiding Officer was holding circuit Court at Nirmal on June 8, 1967, the plaint was properly presented in his Court which was entertained by his Reader who made the endorsement thereon as reproduced in the earlier part of this judgment. There is nothing on the record to show that in the absence of the Presiding Officer, the Reader was not competent or authorised to receive the plaints. In the absence of any evidence to the contrary, it will be deemed that he was competent to entertain the plaints in the absence of the Presiding Officer who was holding his circuit Court at Narnaul. Moreover, the very fact that the plaint was entertained and the endorsement was made thereon is itself sufficient to prove prima facie that he had the authority to receive the plaints. It is well settled that the acts of the Court should not prejudice any one. The Plaintiff filed the suit within limitation on June 8, 1967 in the proper Court. The Presiding Officer being away, the plaint was entertained by the Reader who is an official of the Court. In this view of the matter, the approach of the trial Court in this behalf was correct and the suit was rightly held to be within time by both the Courts below.

The Learned Counsel for the Appellants further contended that it has been wrongly held that the Plaintiff is the daughter of the vendor. According to the Learned Counsel, the evidence of the Plaintiff in this behalf was not in conformity with the provisions of Section 50 of the Evidence Act and, therefore, on the basis of the said evidence, it could not be held that the Plaintiff has been able to prove herself to be the daughter of the vendor. In support of this contention the Learned Counsel relied upon Amar Singh v. Chhaju Singh (1972) 74 P.L.R. 625. I do not find any merit in this contention either.

The Plaintiff produced her first cousin Piare Lal, P.W.-2, who stated that she was the daughter of Bholi Bai and Tek Chand. His statement fully answers the requirements of Section 50 of the Evidence Act. Moreover, the Defendants did not produce any evidence in rebuttal so much so even Deep Chand who appeared as D.W.-4 did not take up the courage to state on oath that the Plaintiff was not the daughter of Bholi Bai, vendor. Primarily whether the Plaintiff is the daughter of the vendor or not is a question of fact and, thus, it being a finding of fact, could not be interfered with in second appeal.

The Learned Counsel lastly contended that the Defendants have been able to prove themselves to be the tenants on the suit land at the time of the sale and that it has been wrongly held against them by the Courts below. According to the Learned Counsel, it has been recited in the sale deed itself that the vendees wore in possession of the suit land as tenants. This, by itself, according to the Learned Counsel, was sufficient to prove that they were the tenants on the suit land prior to the sale.

After hearing the Learned Counsel for the parties on this point as well, I do not find any merit in this contention also.

There is no documentary evidence on the record to support the contention of the Defendants that they were the tenants on the suit land. They came into possession thereof for the first. time in the year 1966 after the sale in their favour as evidenced by the khasra girdawari for the year 1966-67, Exhibit P-3. Prior thereto, the suit land is shown under the cultivating possession of Bholi Bai, the owner. Mere recital in the sale deed is not sufficient to prove that the two vendees were tenants on the suit land. In any case, the said recital is not binding on the pre-emptor as she was not a party to the sale deed. Both the Courts below, on the appreciation of the evidence, have concurrently found that the Defendants has failed to prove them-selves to be the tenants on the suit land prior to the sale. This being a finding of fact, could not be interferred with in second appeal.

No other point arises, neither has been raised.

Consequently, this appeal fails and is dismissed with costs.