Lakhi Ram (died) through L.Rs. vs Sh. Bhalle

Alok Singh, J.—The defendant/appellant has filed the present second appeal challenging the judgment and decree dated 1.9.1982 passed by the learned first Appellate Court/Addl. District Judge, Rohtak, thereby setting aside the judgment of the learned trial Court and further partially decreeing the suit of the plaintiff for possession.

The brief facts of the present case are that plaintiff has filed the suit for possession by way of pre-emption alleging therein that Devi Dayal and Sheo Dayal sold 6 kanals 8 marlas of agricultural land detailed in para No. 1 of the plaint, situated at Village Sikandarpur vide registered sale deed dated 4.6.1979 for Rs. 4500/- in favour of Lakhi Ram (deceased-appellant); Bhalla claimed to be a tenant of land measuring 3 kanals 16 marlas fully described in para No. 3 of the plaint out of the land sold; Balwant, father of the plaintiff, was a tenant in possession of 3 kanals 16 marlas of land and he expired on 5.7.1974 and after his death plaintiff got tenancy right from his father and is entitled for possession by pre-emption for 3 kanals 16 marlas, as described in para No. 3 of the plaint.

The suit was contested by the defendant. It was denied that plaintiff was in possession as a tenant of the property or his father Balwant was ever tenant of the property in dispute; suit is barred by limitation; suit is not maintainable for partial pre-emption; defendant-vendee was also tenant of the land in question.

Learned trial Court framed following issues:

Whether the plaintiff has got superior right of pre-emption? OPP.

Whether the suit is time barred? OPD.

Whether the suit is bad for partial pre-emption? OPD.

Whether the defendant was a tenant over the suit property before the sale and at the time of sale? If so, to what effect? OPD.

Whether the defendant is entitled to stamps and registration charges? OPD.

Relief

Learned trial Court dismissed the suit of the plaintiff by holding that plaintiff failed to prove that he was a tenant of 3 kanals 16 marlas of land from out of the land sold. However, first Appellate Court reversed the finding recorded by the learned trial Court and has held that plaintiff was tenant of the property in dispute at the time of sale deed, at the time of filing of the suit and at the time decree is being passed. It was further observed by learned first Appellate Court that prior to the plaintiff, his father Balwant was tenant in possession, over the property in dispute. Learned first Appellate Court has placed reliance upon the revenue entries to come to the conclusion that earlier Balwant was in possession and after his death his son - plaintiff is tenant and recorded finding of fact that vendee could not prove that he was tenant in possession at the time of sale deed of the property in dispute.

Feeling aggrieved from the judgment passed by the learned first Appellate Court, defendant/appellant preferred present second appeal.

Learned Counsel for the appellant fairly conceded that suit for possession by pre-emption can be decreed and is maintainable even for partial pre-emption. However, learned Counsel for the appellant vehemently argued that finding of the learned trial Court was correct that plaintiff could not prove his tenancy and possession over the property in question and finding of the learned Appellate Court about the tenancy of the plaintiff is wrong.

No proposed substantial question of law has been stated/formulated in the memorandum of appeal as required by Section 100(3) C.P.C. On being asked, as to whether learned Counsel for the appellant is willing to move any application under Order 41 Rule 2 read with Rule 6 Order 17 C.P.C. seeking amendment in the grounds of appeal and state substantial question of law in the memo of appeal, Mr. Amrit Lai Jain, learned Counsel for the appellants, stated that practice in this Court is to place on record substantial question of law by way of loose sheet. He further argued that it is the duty of the High Court to formulate substantial question of law on the basis of grounds of appeal, even though same has not been formulated in the memo of appeal.

Hon''ble Apex Court in the matter of Chadat Singh Vs. Bahadur Rama and Others, . in paragraph No. 6 thereof has observed as under:

In view of Section 100 of the Code, the memorandum of appeal shall precisely state substantial question or questions of law involved in the appeal as required under Sub-section (3) of Section 100. Where the High Court is satisfied that in any case any substantial question of law is involved, it shall formulate that question under Sub-section (4) and the second appeal has to be heard on the question so formulated as stated in Sub-section (5) of Section 100.

The Hon''ble Apex Court in the matter of Shah Mansukhlal Chhaganial (died) through LRs v. Gohil Amarsing Govindbhai(died) through LRs reported in 2006 (13) SCC 113 has placed reliance upon the judgment of Chadat Singh (supra).

The Hon''ble Apex Court in the matter of Koppisetty Venkat Ratnam (d) through LRs v. Parmarti Venkayamma. reported in JT 2009 (4) SC 448 in paragraph No. 14 has observed as under:

Now, after 1976 amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering u/s 100 C.P.C. only in a case where substantial question of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial question of law and then only the High Court is permitted to proceed with the case to decide those question of law.

In view of above dictum of the Hon''ble Apex Court to maintain the second appeal, it is necessary to state/formulate proposed substantial question of law in the memorandum of appeal as required by Section 100(3) C.P.C. It is also a settled position of law that unless and until any law point precisely pleaded or taken in the pleading, same cannot be raised and accepted by the Court. In my humble opinion, this Court can formulate substantial question of law u/s 100(4) C.P.C only if proposed substantial question of law are stated/formulated alongwith necessary grounds justifying that proposed substantial question of law in the memorandum of appeal.

Learned first Appellate Court has observed that according to revenue record Balwant was recorded as tenant in respect of 3 kanals 16 marlas. Jamabandi Ex.P2 for the year 1977-78 shows Balwant to be tenant in respect of Khasra No. 18/19/2(2-8) and Khasra No. 18/20/1 (1-8). Out of the Khasra No. 18/19/2(2-8) only 1 kanal of land was sold and, therefore, right of pre-emption could extend to 2 kanals 8 marlas i.e. 1 kanal out of Khasra No. 18/9/2 and 1 kanal 8 marla of Khasra No. 18/20/1. According to the Jamabandi Ex.P2 for the year 1977-78 Balwant, father of the plaintiff, was tenant in respect of 3 kanals 16 marlas comprised in Khasra No. 18/19/2(2-8) and 18/20/1(1-8). Out of this land, land sold includes 18/19/2(1 - 00) and 18/20/1(1-8). Khasra Girdawaries Exs.P3, P5 and P7 also contain entries showing Balwant to be tenant in respect of the said 3 kanals 16 marlas of land. The name of the plaintiff was incorporated from Savni, 1980 onwards. Mutation of estate of Balwant was sanctioned in favour of the plaintiff on 25.11.1974. Copy of the mutation is Ex.P1. The above record shows that while Balwant died in July, 1974, his name continued in Jamabandi as well as Khasra Girdawari. Since the plaintiff was in actual possession, he did not bother to have the khasra Girdawari and consequently the Jamabandi corrected. This does not affect his right. Revenue record is only an evidence of title and not a document of title. The approach of the learned trial Court that the entries in the revenue record were evidently wrong as Balwant had admittedly died in 1974; is thus not entirely correct. Section 8 of the Punjab Security of Land Tenures Act lays down that there shall be continuity of tenancy and the same shall not be affected by death of the tenant where the tenant leaves no male lineal descendant. On the death of Balwant, therefore, the tenancy rights were inherited by Bhalle and notwithstanding the fact that the said succession was given effect to only in khasra girdawari for Savni, 1980, Bhalle remained tenant of the land since the death of his father Balwant. The plaintiff was thus tenant of the land in question at all the three material stage i.e. at the time of sale, at the time of suit for pre-emption and finally upto the time of the decree. Since out of 3 kanals 16 marlas of land comprised in the tenancy only 2 kanals 8 marlas was the subject matter of sale, the plaintiff is clearly entitled to succeed in respect of 2 kanals 8 marlas comprised in Khasra No. 18/19/2 (1-0) and 18/20/1(1-8), total 2 kanals 8 marlas.

In my humble opinion, finding recorded by the first Appellate Court is a finding of fact which is based on the evidence on record. Hence, even if memorandum of appeal is liable to be rejected for want of statement/formulation of proposed substantial question of law therein, I find in view of the fact recorded by the learned first Appellate Court, otherwise also no substantial question of law arises in the present appeal.

The appeal being devoid of merit, must fail, and the same is dismissed with no order as to costs.