Nihal Singh vs Ram Chander

Kesho Ram Passey, J.—This second appeal by the Defendant arises out of the appellate judgment of the District Judge Narnaul, dated 8-8-2006 reversing the order of the Sub-Judge 2nd Class, Bawal rejecting the plaint u/s 22 Sub-clause (iv) of the Punjab Pre-emption Act. By a registered document dated 17-10-2004 one Dunga s/o Ran Mai of village Kanina sold 8 bighas 19 biswas of agricultural land for Rs. 700/- to Nihal Singh Defendant and the present suit for pre-emption was brought by Ram Chandar pn 24-11-2004. On 8-12-2004 the trial Sub-Judge made the following order which was apparently u/s 22 Clause (i) "Zar-i-khamas vakil muddayi- 15-12-2004 tak dakhil karey." As. only Rs. 270/- were paid before the Sub-Registrar it was alleged in the plaint that the sale had, in fact, taken place for that amount only and that Rs. 430/- had been added fictitiously. A decree for possession on payment of Rs. 270/- was consequently prayed for. In the order of the Sub Judge dated 8-12-2004 it was not specified whether the Plaintiff was to deposit 1/5th of the sale price as given in the document of sale or 1/5th of what the Plaintiff himself admitted to be the sale price.

The Plaintiff took the order of the Sub-Judge to mean that he was required to deposit 1/5th of the price that had, in fact, been paid, viz., 270/-, and therefore deposited Rs. 54/- on 15-12-2004, on which date the Sub-Judge recorded the following order: "Zar-i-Khamas dakhil ho chuka. Lehaza muqadma darj register howe." At, the time of arguments, however, it was contended by the counsel of the vendee that as the Plaintiff had not deposited 1/5th of Rs. 700/- but that of Rs. 270/- only, the plaint was liable to be rejected. This argument found favour with the trial court and the plaint was rejected. The Plaintiff appealed to the District Judge who has quashed the order of the Sub Judge and directed that the suit be decided on its merits. The order of the Sub-Judge dated 15-12-2004 accepting the deposit in those words would make it manifest that his order dated 8-12-2004 had been properly complied with and that he had by his order dated 8-12-2004 meant that the Plaintiff was to deposit 1/5th of Rs. 270/-.

Apart from this, Section 22 of the Preemption Act lays down that the court shall, at or at any time before the settlement of issues require the Plaintiff to deposit in court such sum as does not in the opinion of the court exceed 1/5th of the probable value of the land or property or require the Plaintiff to give security to the satisfaction of the court, for the payment if required, of a sum not exceeding such probable value within such time as the court may fix in such order. What the section indubitably insists upon is that the court must call upon the Plaintiff to deposit 1/5th of the probable value of the property in dispute or to require him to give security for a sum not exceeding such probable value. In either form of security the court has to specify the probable value of the property in respect of which the right of pre-emption is claimed and the Plaintiff has not to be left to his own assumptions or estimate of the probable value. Where a court fails to mention in its order the probable value of which 1/5th is to be deposited, the order would be inherently defective and the Plaintiff cannot be penalized for/ not faithfully complying with a vague order which is liable to be interpreted in more ways than one and which suffers from a misleading lacuna left to exist by the court itself. The trial court had not specified either the amount that was to constitute 1/5th or the probable value of the property. It is impossible to hold that probable value invariably means the price as entered in the sale deed. The court has to state the value as it decides upon to fix according to its own approximation. The confusion that arose was created by the imperfect order of the court itself. The appeal is consequently dismissed with costs.