Panta Singh and others vs Phuman Singh and others

C.G. Suri, J.—This regular second appeal by the Defendant-vendees arises out of a civil suit filed by the plaintiff-respondents to preempt a sale of land made by two daughters of Sohan Singh deceased. The plaintiff Respondents had claimed that they had a superior right to purchase the property and to pre-empt the sale under Sub-section (1) of Section 15 of the Punjab Pre-emption Act, 1913 as they had been in occupation of the land sold as tenants of the Vendors from a date prior to the sale. It was the case of the vender-appellants that the female vendors had succeeded to the land through their father and that Sub-section (2) of Section 15 of the Punjab Preemption Act was applicable and that the right of preemption was confined only to the few near relations of the vendors mentioned in that Sub-section This plea of the vendees had succeeded with the trial Court and the suit filed by the respondents had been dismissed. The judgment and decree of the trial Court have however, been reversed on first appeal filed by the plaintiff respondents. Some additional evidence had been allowed by the lower appellate Court on the application of the plaintiff-respondents under Order 41, Rule 27 of the Code of Civil Procedure. The vendees, therefore, appear as appellants in this Court (in the second appeal u/s 100 of the Code of Civil Procedure.

The sole question for decision at this stage is whether the case falls under Sub-section (1) or Sub-section (2) of Section 15 of the Punjab Pre-emption Act, This would depend on whether the two female vendors who were real sisters can be described to have succeeded to the land in dispute through their father Sohan Singh.

Shri Aggarwal the Learned Counsel for the appellants, challenges the co erectness of the judgment and decree of the lower appellate Court on the following grounds:

(1) The lower appellate Court was not justified in admitting additional evidence to the stage of first appeal. Reliance was in this connection placed on the ruling of the Privy Council in (Raja) Indrajit Pratap Bahadur Sahi v. Amar Singh AIR 1923 P.C. 128 and of the Supreme Court in Slate of U P. v. Manbodhan Lal Srivastava AIR 1967 S.C. 912.

(2) Part of land in dispute was banjar or waste land and its fale could not be pre-empted in view of the provisions of Section 5 (b) of the Punjab Pre-emption Act and the explanation given there under.

(3) The female vendors had in fact succeeded to the land through their father and the contrary finding of the lower appellate Court on that point was erroneous in law and fact.

(4) Subsection (2) of Section 15 would be applicable even if the vendors had got the land from their mother Piar Kaur; who is still alive and who appeared in the lower appellate Court as a witness of the plaintiff-pre-emptor.

Palla Singh, a near collateral of Sohan Singh deceased may also appear to have figured in the acquisition of the land by the family and this has also affected the pleas or arguments raised in this case, Shri Aggarwal wanted to make a separate point about Palla Singh''s appearance in the picture but the extent of his intervention or the manner in which it affects the case would be dealt with by me during the discussion of point No. (3).

As regards point No. (1) the rulings cited by Shri Aggarwal may also seem to justify the admission of additional evidence by the appellate Court either under the general principles of law or under the specific provisions of Order 41, Rule 27 which lays down, amongst other things, that the appellate Court can allow evidence for any substantial cause. No exception can possibly be taken to the observations in Manbodhan Lal Srivastva''s case (supra) that ''Supreme Court would not permit additional evidence to be placed in appeal when there was sufficient opportunity for the appellant to place all the relevant matter before the High Court itself. Additional evidence cannot be permitted at the appellate stage to enable a party to remove certain lacuanae or to fill up gaps but, all said and done, it was recognized that the position would be different where the appellate Court itself requires certain evidence to be adduced in order to enable it to do substantial justice between the parties. In K. Venkataramiah Vs. A. Seetharama Reddy and Others, the Hon''ble Judges were pleased to observe, after discussing the provisions of Order 41, Rule 27 of the Code, that when additional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on. In the case in hand, both parties had availed of the opportunity- afforded by the lower appellate Court to examine additional evidence and no timely objection had been raised by the appellant in any Court.

The additional evidence admitted by the learned Court of first appeal may appear to have been absolutely necessary to do substantial justice between the parties, Sohan Singh and family had migrated from West Pakistan after the partition of India in 1947 and the land had come to the family after that migration across the Indo-Pakistan borders. There was, therefore, hardly any purpose in getting a history of the land traced out in a revenue excerpt up to the time of the first settlement which took place more than a century ago Such revenue excerpts are generally prepared where the ancestral nature of the land has to be established by tracing its history over a few generations in the past, In the present case, the course of devolution of the property during a period of about two decades preceding the filing of the suit could be m re reliably established by producing copies of the pertinent mutation orders sanctioned by the Revenue Authorities. The cumbersome preparation of the revenue excerpt, Exhibit P. 1, in the present case could, therefore, be likened to the breaking of a small butterfly on a giant wheel. The revenue excerpt is no part of the record of rights and does not carry any presumption of correctness It has to be formally proved by the examination in the witness box of the person who has prepared it on the basis of the entries in the various settlement records and jamabandis. It is an extract or synop is of entries collected from diverse places and its value depends on how truly it has reproduced the original entries. If there is any doubt about a particular entry in the excerpt, it will always be open to the Courts to have it removed by reference to the original records, on the basis of which the excerpt was prepared. The trial Court had, however, made the mistake of relying on an ambiguous note, Exhibit P. 2, in excerpt, Exhibit P. 1, which was actually found to be against the true facts. It was on the basis of this Incorrect note that the trial Court had found that the vendors inherited the land from their father Sohan Singh. Sohan Singh had died before the land had been allotted to his widow by the Rehabilitation Authorities- The lower appellate Court was, therefore, perfectly justified in recalling as a Court witness the Moharrir Patwari who had prepared the excerpt. The certified copy of the mutation order on which the note, Exhibit P 2, in the excerpt, Exhibit P. J, was based showed that Sohan Singh had died 10 years prior to the attestation of the mutation order. Sohan Singh''s widow Piar Kaur had been examined in the lower appellate Court and had stated on oath that her husband had died or had been murdered while he was migrating from Pakistan in 1947. Her statement is borne out by the fact a claim for the land, Exhibit A W. 1/A, had been filed on 17th March, 1948, by the widow Piar Kaur As the revenue records received from Pakistan continued to have the name of Sohan Singh, the allotment of the land may appear to have been made by the Rehabilitation Authorities in his name even though he was long since dead. That is how his name continued in the revenue records for a period of a decade or two after he had died. The sanad or the certificate about the permanent allotment of the land, Exhibit Rule 2, had been issued in 1956 in the name of Sohan Singh and it was mentioned therein that one Palla Singh son of Ishar Singh had been nominated as the successor of the allottee; though it is not clear as to who had been responsible for the nomination. There is no evidence that Palla Singh had ever gone into possession of the land In dispute The mutation order, on which the vague and the ambiguous note relied upon by the trial Court was based, however, shows that Piar Kaur had remarried some one in Karewa form in the year 1953 and that in site of this remarriage, she had continued in possession and that at some time between the years 1956 to 1968 she bad surrendered the land in favour of her daughters from her wedlock with Sohan Singh. All these facts had to be brought out in order to dispose of the case In a just and proper manner and the trial Court may appear to have disposed of a complicated question in a perfunctory manner on the basis of an unreliable note in the revenue excerpt. The admission of the additional evidence at the stage of first appeal was, therefore, fully justified and no justice could be done in the case without examining this evidence. The first contention raised by Shri Aggarwal is, therefore, found to be without any force.

The question has also been raised whether the findings of fact of the lower, appellate Court, based on this additional evidence, would have this same sanctity attached to them in a second appeal in the High Court as in a case where two subordinate Courts have had occasion to assess the value or weight to be attached to the evidence leading to those findings. Shri Sarin, the Learned Counsel for the respondents, has in this connection, relied on the rulings of the Supreme Court in State of U P. v. Manbodhan Lal Srivastava (supra) Deity Pattabhiramaswamy v. S. Harymayya, AIR 1959 S.C. 57 Madamanchi Ramappa and Anr. v. Muthaluru Bojjappa A I.R 1966 S.C. 1633 Bithal Dass Khanna and Anr. v. Hafiz Abdul Hai, 1989 S.C.N. 481 So far as I could see, in none of these cases had additional evidence been recorded in the Court of first appeal and the rulings are not strictly pertinent to the point raised before me. There is nothing in Section 100 of the Code, however, to suggest that the scope of second appeal is enlarged when fresh evidence is let in by the lower appellate Court, It is hot necessary that the two Courts below should have seen eye to eye and the findings of fact of an appellate Court would be sacrosanct even where it has differed with Court of first instance The sanctity of the findings does not, therefore, depend on the concurrence of the two subordinate Courts but because of the exalted and more responsible position or the better knowledge or experience that the appellate Courts are supposed to have. Moreover, I have not found it necessary, on an independent assessment of the material on record, to disturb any findings of fact of the lower appellate Court and the point raised may seem to have only an academic interest.

The second contention raised by Shri Aggarwal would necessitate our going into certain questions of fact. The parties should have had an opportunity to examine evidence before these facts could be decided. The appellants had not even taken the plea in any of the two Courts below that the sale was not pre-imputable in view of the provisions of Section 5 (b) of the Punjab Pre-emption Act. In (act, the grounds of appeal filed in this Court are also silent as to this plea. S, 5(b) would create a bar only if it could be shown that the appellants had reclaimed the waste lands. The Khasra Girdawaris, however, show that the land continued to be shown ''Banjar'' as before. There is, therefore no evidence about any reclamation or Improvement in the land after it had been purchased by the appellants. The second contention raised by Shri Aggarwal also fails.

The simple question then to be decided is whether the two female vendors had succeeded to the land in dispute through their father. The land came into the family after Sohan Singh had died. The allotment had first been made in favour of the widowed mother of the vendors. It may be true that the land in suit was allotted in lieu of the land which had belonged to Sohan Singh in Pakistan. After Sohan Singh''s death, his widow Piar Kaur had, however, succeeded to the land under custom to the exclusion of the daughters. Even though Piar Kaur had remarried before the coming into force of the Hindu Succession Act in 1956, she had continued to be in possession of the land until 1958. She had, therefore, become an absolute owner of the land with the coming into force of the Hindu Succession Act the only thing that could prevent the vesting of the absolute ownership in Piar Kaur was that she had remarried in 1933. If it could be said that a forfeiture of her estate had taken place under custom because of her remarriage in 1953, then under the customary law, Palla Singh, the collateral of the widow''s deceased husband should have succeeded. This was in fact the appellants'' case in the lower appellate Court and the nomination of the Palla Singh as successor of Sohan Singh had been proved by them when they produced the sanad, Exhibit Rule 2. In spite of the alleged forfeiture of the widow''s estate on her remarriage, no such devolution of property in favour of Palla Singh may appear to have taken place. This is apparent from the mutation order which was attested in favour of the vendors in 1956 or 1958. It is not clear from the record that a mutation about this land had been attested in favour of the daughters by virtue of any succession or forfeiture under custom or by any devolution under the law. All that we can say is that Sohan Singh''s widow and a collateral had no objection to the land being transferred in the name of Sohan Singh''s daughters. From the fact appearing on the record, it would not be possible to say that the vendors had succeeded to the land through their father. It is a mystery under what law the vendors bad acquired the ownership in the land but an easy solution of the mystery cannot be had by jumping to unwarranted conclusions. The third submission is also decided against the appellants.

The fourth contention of Shri Aggarwal is not based on any provisions of law or authority and is rejected for reasons given in my discussion of point No. 3.

All the contentions raised by Shri Aggarwal having failed, the appeal is dismissed with costs.