Prabhu vs Smt. Anaro Devi

Mahavir S. Chauhan, J.—Civil Suit No. 505 of 1985 was brought before Sub Judge 1st Class, Gurgaon (for short as ''the trial Court'') by Smt. Anaro Devi against the appellant and one Ram Chander to seek possession of the suit property, as fully described in the headnote of the plaint, by way of pre-emption. It was pleaded in suit by the plaintiff that 2nd defendant (Ram Chander) had sold the suit property to defendant No. 1 (Appellant herein) secretly without her knowledge and without notice to her, vide sale deed dated 20.07.1983 for an ostensible sale consideration of Rs. 12,000/- whereas actual sale price was Rs. 7,000/- only and it was exaggerated to Rs. 12,000/- only to defeat right of pre-emption available to the plaintiff. According to the case of the plaintiff, she was entitled to pre-empt the sale, being a co-sharer, but the defendants did not accede to her repeated requests to admit her claim. This forced her to approach the Court of Law.

The suit was contested by the 1st defendant, the vendee, who by filing a written statement came out with preliminary objections, inter alia, to the effect that pre-emption amount was not deposited in time; the suit was barred by limitation; it was not maintainable in the present form and plaintiff was estopped by her own act and conduct, from filing the suit; it was collusive and benami and had been filed at the instance of Gopi Ram, husband of the plaintiff; it was not properly valued for the purpose of court fee and jurisdiction; sale was not pre-emptiable as the suit property was situated within the village abadi; 2nd defendant had purchased the suit land by specific performance of an agreement of sale dated 12.06.1969; and that the decree passed in the suit for specific performance was binding upon the plaintiff and also operated as res judicata as the plaintiff was a party to that suit.

On merits, it was stated by the 1st defendant that suit land was purchased by him for a sum of Rs. 12,000/- which was the market value, prevalent of such kind of land on the day of its purchase. The consideration was fixed in good faith and was actually paid and the plaintiff did not have a superior right to pre-empt the suit land and the suit had been filed on account of enmity and greed.

By bringing a replication, plaintiff controverted what was stated in the written statement and reiterated her plea as contained in the plaint. Pleading of the parties gave rise to the following issues:-

Whether the plaintiff has got superior right of pre-emption in respect of the impugned sale? OPP.

Whether the sale consideration of Rs. 12,000/- was fixed in good faith and was actually paid at that time? OPD.

If issue No. 2 is not proved, then what was the market value of the suit land at that time? OPP.

Whether the suit is barred by limitation? OPD.

Whether the suit is collusive and benami? OPD.

Whether the plaintiff is estopped from filing the present suit? OPD

Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.

Whether the suit is barred by principle of res judicata? OPD

Whether the defendants are entitled to stamp and registration charges? OPD.

Relief.

After both the sides had adduced evidence in support of their respective claim, learned trial Court afforded them an opportunity of hearing, perused the evidence and other relevant record, recorded findings on issue Nos. 1, 4, 5, 6, 7 and 8 in favour of the plaintiff, issue No. 3 as warranting no finding and issues No. 2 and 9 in favour of defendants against the plaintiffs and vide judgment and decree dated 29.04.1986 decreed the plaintiffs suit for possession by way of pre-emption of the suit land, as detailed in the headnote of the plaint, subject to plaintiffs depositing an amount of Rs. 12,000/- minus 1/5th pre-emption money deposited by her, on or before 06.06.1986, failing which suit was to stand dismissed with costs.

The appeal taken by defeated defendant i.e. Prabhu, only, against decree dated 29.04.1986, was dismissed by the court of learned District Judge, Gurgaon (for short as ''the 1st Appellate Court'') vide judgment and decree dated 03.03.1987.

Feeling aggrieved by and dissatisfied with the judgment and decree dated 29.04.1986 passed by the learned trial court as also the judgment and decree and dated 03.03.1987 of the learned District Judge Gurgaon, the defeated defendant has approached this Court by way of instant Regular Second Appeal.

Respondent (plaintiff before the trial Court) is contesting the appeal.

I have heard learned counsel for the parties and have also gone through the record.

Learned counsel for the appellant has come out with an argument that the respondent was a party to the suit for specific performance, which was decreed in favour of the appellant and it was in execution of decree so passed, in the said suit that the sale deed, in question, was executed. In this situation, according to learned counsel for the appellant, the respondent had the status of a vendor, as far as the suit property is concerned and that of a judgment-debtor in execution of the decree for specific performance and that being so, she is estopped from making a claim for pre-emption of the suit property. When confronted with the finding recorded on issue No. 6 pertaining to estoppel, the learned counsel for the appellant submits that he had made an application for additional evidence to bring on record certified copies of the judgment and decrees passed by the court concerned in the suit for specific performance but that application was wrongly dismissed by the learned District Judge, Gurgaon. Learned counsel for the appellant also prays that the appellant be allowed to bring on record certified copies of those judgments and decrees as these are necessary for disposal of the controversy between the parties. To support of his contention, he relies upon the judgment of this Court in case " Gurdial Singh and Others Vs. Mam Chand and Others, and contends that additional evidence sought to be brought on record being certified copies of judgments and decrees passed by the courts of law and there being no possibility of these documents being tampered with, or manufactured, an application for additional evidence can be allowed even at the stage of Regular Second Appeal.

The submission looks lucrative but lacks substance. The agreement of sale, which was specifically enforced by the appellant in the suit for specific performance, is not part of the record and the learned counsel for the appellant has not been able to show whether or not Anaro Devi, respondent herein, was a party to that agreement either. That being so, it has to be taken that Anaro Devi was not a party to the agreement referred to above and, this being the situation, she was not a necessary or even a proper party in the suit for specific performance. That being so, only because she was impleaded as a party in the said suit, her right of preemption cannot be forfeited. Rather, it seems that Anaro Devi was impleaded as a party in the said suit for specific performance only with a view to defeat her right to have the sale pre-empted under the provisions of law then operating.

In view of what has been said and discussed above, prayer of the appellant for additional evidence is rendered inconsequential. Even if the judgments and decrees passed by the court in the suit for specific performance are allowed to be placed on record, fate of the case would not change because the only consequence of these judgment and decree being taken on record, would be to bring on record the fact that Smt. Anaro Devi, respondent herein, was a party to the aforesaid civil suit for specific performance but as aforesaid, only because of impleadment of Smt. Anaro Devi as a party in the said suit, her right of pre-emption of suit property cannot be forfeited.

Faced with this situation, learned counsel for the appellant has come out with another argument that right of pre-emption is a pyratic right and all the possible remedies against such a right should be allowed. In support of his contention, learned counsel for the appellant relies upon the judgment of this Court in case Chandrup Singh and Another Vs. Data Ram and Others,

The contention, however, is inconsequential insofar as there is no denial of the position of law, as adumberated, in the cited judgment but it has not been pointed out what other remedies were available to the appellant which have not been allowed to him. His prayer for bringing on record the additional evidence has already been found to be of no consequence.

In view of failure of the appellant on the counts referred to herein above, controversy now is narrowed down to the question whether Smt. Anaro Devi, respondent herein, is a co-sharer in respect of the suit property with defendant No. 2 and, if yes, then is she entitled to pre-empt the sale?

As regards first part of the question, there is no dispute that Smt. Anaro Devi is a co-sharer in respect of the suit property and insofar as the other part of the question is concerned, it has been answered by the learned trial Court by holding her to be so entitled and this finding has been affirmed by the learned first Appellate Court. Nothing to the contrary has been shown during the course of hearing. In view of what has been said and discussed above, the appeal is without substance and findings of fact recorded by both the courts below do not call for interference, more so, when no substantial question of law is involved in this appeal. In the result, the appeal fails and is dismissed, while affirming the judgments and decrees of the courts below. However, parties are left to bear their own costs.