Parsana Ram and Another vs Jeet Ram and Others

M.R. Sharma, J.—The Appellants purchased the land in dispute for a sum of Rs. 4,600/- under, a registered deed dated December 23, 1965. The Respondent filed a suit for possession of'' this land on the ground that he, as son of the vendor, has right to pre-empt the same. The Appellants resisted this suit on the ground that the State Government had issued a notification whereunder lands purchased, by members of Scheduled Caste had been taken out of the purview of pre-emption suit. This plea prevailed with the learned trial Court and the suit filed by the Respondent was dismissed. The learned lower Appellate Court reversed the judgment and decree passed by the learned trial Court on the ground that as laid down in Section 3 of the Constitution (Scheduled Castes) Order, 1950, only persons professing Hindu and Sikh faiths could be treated as members of the Scheduled Caste and the Appellants had failed to establish that they professed any of two faiths. The Appellants have come up in second appeal before me.

After hearing the learned Counsel for the parties I find somewhat difficult to understand the logic behind the judgment rendered by the lower Appellate Court. The names of the Appellants are Des Raj, Parsana Ram and Sadhu Ram which prima facie shows that they profess the Hindu, religion. In the written statement filed on their behalf it had been clearly stated that since they were members of the Scheduled Caste, the purchase of land made by them was not amenable to a suit for pre-emption. In response to this plea the Respondent did not aver that the Appellants did not profess Hindu faith. In this view of the matter, the learned lower Appellate Court should not have made out an entirely a new case for the pre-emptor Respondent. It is settled Jaw that law of pre-emption is a clog on the equity of free alienation of land and the Courts do not readily grant the relief to a pre-emptor unless and until the brings his case within the four corners of the law. In my considered view, the pre-emptor--Respondent has failed to show that he has any cause of action against the Appellants.

Mr. Ahluwalia learned Counsel for the Respondent has vehemently argued that since the Appellants claimed the benefit of exemption it was for them to prove that their case fell strictly within the ambit of the statutory exemption and that the lower Appellate Court having given a finding of fact, I should not interfere in second appeal. In support of his submission, the learned Counsel has placed reliance on Sri Sinha Ramanuja Jee alias Shri Vanemamalai Ramanuja Jee Swamrgal v. Sri Ranga Ramanuja Jeer alias Embernmanar Jeer and Ors. AIR 1961 SC 1920 and Vishwa Vijay Bharati Vs. Fakhrul Hassan and Others, . I find no merit in the pleas raised by Mr. Ahluwalia. It is the primary duty of a Plaintiff to show that he has any valid cause of action. The Appellants asserted in their written statement that they were members of the Scheduled Caste. The Plaintiff-Respondent did not counter these pleas by asserting that they did not belong to Hindu or Sikh faiths. In other words, the pleas raised by the Appellants were not specifically denied and in this view of the matter it was not necessary for them to adduce any further evidence on this point. However, the learned lower appellate Court failed to act in accordance with the principle enshrined in Order 8 Rule 5 of the CPC and the finding arrived at by it stands vitiated. Such finding cannot be regarded as a finding of fact within the meaning of the rules laid down by the Supreme Court in the two cases cited by Mr. Ahluwalia.

For the reasons aforementioned, I allow this appeal, set aside the judgment and decree passed by the lower Appellate Court and affirm that passed by the learned trial Court and order that the pre-emptor-Respondent shall pay the costs to the Appellants throughout.