Sher Singh vs Kewal Krishan

R.L. Anand, J.—Unsuccessful Plaintiff Sher Singh son of Jaimal Singh has filed the present R.S.A. and it has been directed against the judgment and decree dated 7.12.1983 passed by the Court of Additional District Judge, Sirsa, who set aside the judgment and decree dated 9.6.1982 passed by the Court of Sub Judge 3rd Class, Sirsa who decreed the suit of the Plaintiff-Sher Singh for possession by way of pre-emption against the Defendant Kewal Krishan son of Sobh Raj, now Respondent in this Court.

Brief facts of the case are that Sher Singh son of Jaimal Singh filed a suit for possession by way of pre-emption against Kewal Krishan son of Sobh Raj, claiming possession through pre-emption of the suit land measuring 7 kanals 16 marlas compromised in Rectangle No. 233 Killa No. 18 (5 Kanals 7 Marlas ) and Killa No. 23/1 (2 Kanals 9 Marlas ) and the case set up by the Plaintiff was that Hari Singh son of Naunit Rai sold away 36 Kanals 18 Marlas of agricultural land, including the land in dispute, to Kewal Krishan son of Sobh Raj Defendant for a sum of Rs. 91,000/- through registered sale deed dated 18.4.1978. The Plaintiff Sher Singh claims that he is the tenant at Will on payment of one-third Batai since Kharif 1977 over the suit land and, therefore he has a superior right of pre-emption than anybody else.

It may be mentioned that one Atam Parkash also filed a suit for pre-emption in respect of the suit land and he was also arrayed as a Defendant, being rival pre-emptor. Later oh the rival pre-emptor Atam Parkash compromised the dispute with the vendee Kewal Krishan. He withdrew his suit and his name was accordingly struck off from the suit.

Kewal Krishan Defendant, however, contested the sit and filed a written statement on 13.11.1979 and denied the averments of the Plaintiff. He disputed that the Plaintiff was a tenant over the suit land on the date of the sale. It was pleaded by the Defendant that since Rania is a town with a population of 15,000, which has a grain market, a Police Station, a Government School, a Hospital, Rice and Oil Mills and other amenities and there is a Municipal Committee and the suit land is situated within the limits of the Municipal Committee, therefore, the suit of the Plaintiff is not maintainable as the land in question is not pre-emptible. It is also pleaded by this Defendant that previously Sobh Raj, his father, filed a suit against Sher Singh - present Plaintiff - and that suit was decided by the Court of Shri OP. Gupta, Senior Sub Judge, Sirsa, and in the said suit Plaintiff Sher Singh himself made a statement that he had no concern with the suit land and, consequently, the said suit of Shri Sobh Raj was decreed against the present Plaintiff Sher Singh and as such the Plaintiff has no right to preempt the suit land. Finally the Defendant prayed for the dismissal of the suit.

The Plaintiff filed replication to the written statement of the Defendant, in which he reiterated his allegations made in the plaint by denying those of the written statement and from the pleadings of the parties, trial Court framed the following issues:

Whether the Plaintiff has a superior right of pre-emption? OPP

Whether the sale price of Rs. 91,000/- was fixed and paid in good faith? OPD

If issue No. 2 is not proved, then what was the market value of the suit land at the time of sale? O.P. Parties.

Whether the suit is not maintainable in view of the objections contained in para No. 4 of the written statement? OPD.

Whether the Defendant is entitled to stamp and registration charged? OPD

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

Relief.

An additional issue was framed on 8.12.1980, which was treated as issue No. 1-A. This issue, however, was later on was struck off with the compromise of the suit between rival pre-emptor Atam Parkash and the vendee Kewal Krishan.

The parties led oral and documentary evidence in support of their case and on the conclusion of the trial, the learned trial Court decreed the suit of Plaintiff Sher Singh by judgment and decree dated 9.6.1982 and the reasons for decreeing the suit are contained in paras Nos. 7 and 8 of the judgment, which are reproduced as under, in order to appreciate the fact whether the judgment and decree of the trial Court was passed on the erroneous consideration or not:

After considering the arguments put forth by the counsel for the parties, I am of the view that the statement in another case Sobh Raj v. Sher Singh has no bearing because the same statement is contrary to the fact because as is evident from mutation Ex.P.8 some part of the land forming the subject-matter of that suit had already been purchased by the present Plaintiff Sher Singh and no fool could admit a claim of another party which is against him and contrary to the fact This opinion is strengthened by the judgment of the trial Court in that case because trial Court has decreed the suit in ''Sobh Raj v. Sher Singh'' against the present Plaintiff Sher Singh with regard to Killa No. 240/ 1-2/1. Thus, the admission statement Ex.D-4 and D-5 does not debar the Plaintiff from asserting himself to be in cultivating possession of the suit land in this case. Although Khasra girdawari entries do not attach presumption of truth yet they have probative value and the Plaintiff''s statement that he has sown wheat and vegetable is corroborated from the revenue record. I have no reason to disbelieve the statement of the Plaintiff.

The next argument put forth by the counsel for the Defendant is that there is no evidence as to how the Plaintiff became the tenant over the suit land, This argument of the Defendant stands repelled by their own document, i.e., Khasra Girdawari Ex.D-2 wherein it is mentioned that the Plaintiff became tenant over the suit land through Civil Court decree dated 8.4.76. The subsequent entries of Kharif 1976 showing entries with regard to change of entries on the basis of decree passed by Sh. O.P. Gupta, in Sobh Raj v. Sher Singh" has no bearing because that decree was not passed against Sher Singh with regard to the suit land. The Plaintiff has again shown to be in possession of the sit land in the subsequent entries. I therefore, hold that the Plaintiff was a tenant over the suit land and the Defendant being stranger, the Plaintiff has superior right of pre-emption. This issue is, therefore, accordingly decided in favour of the Plaintiff and against the Defendant.

Defendant Kewal Krishan filed first appeal in the Court of Additional District Judge, Sirsa, who vide the impugned judgment and decree dated 7.12.1983 set aside the judgment and decree of the trial Court and dismissed the suit of the Plaintiff-Sher Singh and the reasons given by the first appellate Court are contained in paras Nos. 12 to 17 of the judgment. In this manner Sher Singh-unsuccessful Plaintiff-has come in the present appeal, which is being disposed of with the assistance rendered by Shri Raj. Mohan Singh, Advocate appearing on behalf of the Appellant and Shri L.N. Verma, Advocate, appearing oh behalf of the Respondent.

Learned Counsel for the Appellant has assailed the finding of the first appellate Court by urging that the first appellate Court took an erroneous view in holding that the Plaintiff was not a tenant at the time of the sale, at the time of the filing of the suit, but to the contrary it is proved by the Plaintiff-Appellant that he was a tenant on the relevant dates, even on the date of the passing of the decree by the trial Court, and, therefore, the appeal should be accepted.

On the contrary, learned Counsel for the Respondent has practically adopted the reasons advanced by the first appellate Court. In addition to that, learned Counsel for the Respondent also brought to the attention of this Court the fact that during the pendency of the litigation, the land in question had been acquired by the Government. The Land Acquisition Collector has also passed the award, the compensation has been awarded and enhanced award has been given by the District Judge u/s 18 of the Land Acquisition Act. The subsequent events which have taken place on account of the operation of the law, should also be taken note of and in this manner the suit of the Plaintiff for pre-emption is not maintainable because he is not occupying the land in dispute but the possession has gone in favour of the Government, which has acquired the land.

Mr. Raj Mohan Singh, Advocate, learned Counsel appearing for the Appellant, controverted the legal arguments of Mr. L.N. Verma, learned Counsel for the Respondent, by stating that the rights of the Plaintiff are supposed to be determined on the date of the institution of the suit and the present appeal is in continuation of the suit: The suit was earlier decreed in favour of the Plaintiff and in case the Plaintiff-Appellant succeeds in the suit he would be entitled to the amount of compensation and the enhanced amount of compensation.

I will also deal with the legal objections taken by the learned Counsel for the Respondent in the subsequent portion of this judgment but at this stage it may be mentioned that this Court is of the opinion that the Appellant has no case and this appeal is liable to be dismissed. The material point which will arise for determination in the present appeal would be whether the Plaintiff has been able to establish that he was a tenant with respect to the land bearing Killa Nos. 18 and 23/1 of Rectangle Nos. 233 on the date of the sale, on the date of the institution of the suit and on the date of the decree, which was passed by the trial Court in his favour. It is a basic principle of taw that the parties are bound by their pleadings and this Court has to scrutinise the case of a litigant as pleaded by him. As 1 have just stated that the date of sale is 18.4.1978 and in these circumstances, it has to be seen whether the crop of Rabi 1978 was sown over the suit land by the Plaintiff or not. This crop is sown in the month of October or November. It ripens for harvesting in the month of April/May and the revenue officials prepare the girdawari somewhere in the month of March because at that time the crop is fully frown and it can be easily ascertained who had sown the relevant crop for the relevant year. The case of the Plaintiff in the plaint was categorical that he is a tenant at will on the payment of one-third Batai since Kharif 1977, but when he appeared in the witness-box, he deposed that he is in occupation of the land in dispute as a tenant for the last 10/ 12 years and he wanted to stretch his possession since, 1969-70 which case was not pleaded by him in the plaint. The record of the trial Court further shows that earlier a litigation was started which was subject-matter of the suit No. 826 of 1974. This suit was filed by Sobh Raj, father of the Defendant against Sher Singh, present Plaintiff, and Hari Singh, who is the vendor. That was a suit for permanent injunction filed by Sobh Raj against, Sher Singh and Hari Singh and he claimed that both the Defendants be restrained from interfering in the suit land measuring 45 Kanals 3 Marlas Killa No. 18 of rectangle No. 233 measuring 5 Kanals 7 Marlas was also the subject-matter of the suit. Similarly Killa No. 23 measuring 8 Kanals was also incorporated in that suit. In the present case Killa No. 23/1 measuring 2 Kanals 9 Marlas has been taken out from Killa No. 23. In other words, the suit land of the present suit was also the subject matter of suit No. 826. That suit was instituted on 9.12.1974. Present Plaintiff Sher Singh filed a written statement on 5.11.1975 in the said suit and categorically admitted that the Plaintiff (Sobh Raj) was in possession of the suit land and that he has nothing to do with that. Sher Singh did not claim that he is a tenant over the suit land. This admission was made on 5.11.1975 It is an admission in the pleadings, which is binding upon the present Plaintiff. On the basis of this admission Sher Singh again reiterated this fact when he made a statement in the Court on the same day. This clearly suggests that Plaintiff Sher Singh was not in possession with respect to Killa Nos. 18 and 23/1, which are the subject matter of the present suit, on 5.11.1975. It is true that part of the land of suit No. 826 was purchased by Sher Singh on 26.11.1974, but it is established that on that day, Killa Nos. 18 and 23/1 of rectangle No. 233 was not purchased by Sher Singh. Faced with this situation, the Plaintiff in the trial Court appeared in rebuttal on 5.6.1982 and he tried to withdraw his earlier admission dated 5.11.1975 made vide Exhibits D4 and D5 and stated that his earlier admission was with respect to Killa Nos. 1 and 2 of rectangle No. 24() and not with respect to Killa Nos. 18 and 23/1 and that most of the land of the earlier suit has been purchased by him and, therefore, the question of his making the admission that he was not a tenant over Killa Nos. 18 and 23/1 does not arise. The trial Court in its judgment has accepted the explanation funushed by the Plaintiff on 5.6.1982 by holding that a party to a suit can prove that his admission was made against a fact is erroneous and that the Plaintiff has successfully withdrawn his admission. So far as the law point as enunciated by the learned trial Court is concerned. there is no dispute and this fact has also been admitted and verified by the learned first appellate Court but 1 am not in a position to concur with the findings of the trial Court with regard to the issue of tenancy of the Plaintiff over the suit land because the Plaintiff has hot been able to show that Killa Nos. 18 and 23/1 was ever purchased by him oh 26. 11.1974. With regard to these two Khasra numbers, a categorical admission by Sher Singh, which could not be withdrawn successfully nor he has been able to prove for the record that on these material dates he was in possession of these Khasra numbers as a tenant. The first appellate Court rightly held:

...This is an admission on the part of the Plaintiff himself that he was not in possession of the suit land as tenant on 5.11.75. A specific plea in this behalf was raised by the Defendant in the written statement which was not controverted by the Plaintiff, because he did not file any replication. In his statement recorded on 5.6.82, he tried to withdraw this admission by stating that he had made admission only in respect of Killa Nos. 1 and 2 of rectangle No. 240 and hot with respect to the suit land. No doubt, if a previous admission is successfully withdrawn or is shown to be erroneous then it is not binding on the maker thereof in subsequent litigation but in the present case the simple fact that the Plaintiff stated on 5.6.82 while making statement in the Court that he had made that admission with respect to some other land and not with respect to the suit land, does not mean that admission by him has been successfully withdrawn.

With the help of Exhibit P8 and with the help of sale deed dated 6.12.1974, the Plaintiff could show his admission to be erroneous with regard to the land purchased by him by virtue of the said sale deed, but he has not been able to show that his admissions Exhibits D4 and D5 were erroneous with respect to the present suit land and as such he is bound by that admission. Net result would be that as on 18.4.1978 it has to be held that he was not in possession of the suit land as a tenant and that the Kharif crop of 1977 was not sown by him and for that reason in the Rabi crop of 1978 his name has not figured as a tenant over the suit land.

Learned Counsel for the Appellant then relied upon the documents marked ''A'' which is an entry of the Roznamcha, and submitted that Atam Parkash and the present Plaintiff Sher Singh filed the suit for declaration in the Court of Sub Judge 1st Class, Sirsa, and claimed a declaration that Plaintiff No. 2 Sher Singh was in cultivating possession of Killa No. 18/2 (3/7) and Killa No. 23 (8.0) since Kharif 1973 and this suit was instituted against Hari Singh - the vendor of the present Defendant. The suit was decreed in their favour. The present Defendant Kewal Krishan is bound by the admission of Hari Singh - his predecessor-in-interest-and in these circumstances it has to be held that on the date of the sale deed the Plaintiff is in possession of the suit land as a tenant. This suit was instituted on 26.12.1975 and was decreed on 30.12.1976.1 have scrutinised this submission raised by the learned Counsel for the Appellant and I am of the considered opinion that this document will not advance the case of the Plaintiff. Firstly, the Plaintiff alleges in his statement that he was in possession since 1961-62. Then he alleged in the plaint that he is in possession of the suit land since Kharif 1977. I cannot lose sight of the fact that the decree suffered by Hari Singh was a consent decree. The Plaintiff himself is not clear what is his case. If the Plaintiff was in possession with respect to the suit land since 1973, as held in document marked ''A'' then under what circumstances he made an admission on 5.11.1975 Exhibits D4 and D5, two months earlier to the filing of the suit i.e. on 26.12.1975 that he had nothing to do with the suit land. What circumstances intervened after 5.11.1975 and before 26.12.1975 by which the possession of Sher Singh was entered in his name? This shows the collusiveness of the suit. The Defendant can show successfully that Hari Singh made erroneous admission just to please Slier Singh and Atam Parkash and the said admission is not binding upon him as it is not borne put from the record, Learned trial Court has given too much importance to this document marked ''A'' and also to Khasra Girdawari Exhibit D2 but has ignored this fact that the entries of Exhibit D2 were based on the collusive decree as depicted in mark A'' and once the admission of the decree is shown to be erroneous, the present Defendant can successfully resist the plea of the Plaintiff that he was never the tenant over the suit land on the date of the sale dated 18.4.1978 and that his claim that he was a tenant since Kharif 1977 was false. Even the oral evidence which has been led by the Plaintiff to establish his alleged possession since 1973 is contradictory in itself and this aspect of the case has been rightly discussed by the first appellate Court in para No. 17 of the judgment and I endorse and affirm those reasons.

Now I want to discuss the documentary evidence which has been led by the Plaintiff in support of his plea of possession on the date of the sale. Assuming entire allowance is given to the Plaintiff that it was not required on his part to establish his possession since 1973. still it is to be seen whether he has been able to prove his possession as a tenant over on-third Batai on the date of the sale or not. Exhibit P2 is the Jamabandi for the year 1972-73, which shows that Hari Singh was the owner and he was in cultivating possession; meaning thereby that upto 1973 the possession was with Hari Singh and not with Slier Singh. Exhibit P3 is the Khasra Girdawari of Kharif 1977 and Rabi 1978.I stated earlier that the Plaintiff was also supposed to establish that his name figured in Kharif 1978 so as to establish that he had sown the crop in the month of May/June 1978 so as to establish his possession as a tenant in the month of April 1978. This document though shows the name of Slier Singh with respect to Killa Nos, 18 and 23 but for crop of Kharif 1978 and Rabi 1978 and not for Kharif 1979. This document (P3) thus does not advance the case of the Plaintiff. Exhibit P4 is the copy of the mutation in favour of Kewal Krishan who purchased the land in dispute. Exhibit P5 is the Khasra Girdawari of Kharif 1978 and Rabi 1979. This is the only relevant document from which the Plaintiff could take some advantage but there is not an iota of evidence to establish under what circumstances this stray entry figured in his name because the earlier Khasra Girdawaries. as is evident from Exhibit D2, are in favour of Hari Singh. Whether any due procedure was adopted and whether any instructions of the Financial Commissioner were adopted in changing the Khasra Girdawari in favour of Hari Singh or not. it is not proved on the record. The document (D2), which is the Khasra Girdawari starting from 1973 onwards, shows that till 1977-78 the girdawaries were in the name of Hari Singh. The change with respect to Khasra Girdawaries, as shown in Exhibit D2, was based on consent decree regarding which I have already made a mention. Apart from that there is no basis for the change of the Khasra Girdawaries in the name of the Plaintiff. We all know that no presumption of truth is attached to Khasra Girdwari u/s 44 of the Punjab Land Revenue Act. The probative value a Khasra Girdawari can be shown as erroneous. Once the foundations of the Khasra Girdawaries are shown to be hollow, the Plaintiff cannot take the benefit of document P5 or P6 in the light of Exhibitp2 and in the light of the discussion commenting upon document marked "A".

Learned Counsel for the Respondent Shri L.N. Verma has relied upon Baj Singh and Ors. v. Tilok Singh and Ors. 1969 Current Law Journal 979, and Nagiadas Ramdas v. Dalpat Ram Ichharam etc. 1974 Current Law Journal 57; and submitted that as per Section 58 of the Indian Evidence Act, admission made by a party in a pleading is supposed to be distinguished from evidentiary admission spoken of in Section 31 of the Evidence Act and the admission u/s 58 i.e. the admission in the pleading is binding upon the parties. Thus it would follow that the admission contained in Exhibit D5 of Sher Singh will be binding upon him and it has to be held that he was not a tenant over the suit land on the date of the sale.

On the contrary, the learned Counsel for the Appellant has relied upon Harpal and Ors. v. Smt. Ram Piari and Ors. 1981 PLJ 492. and submitted that no successful challenge can be given to a consent decree on the plea that it was collusive and fraudulent and as such was null and void on the ground that it was factually wrong and that the Court in second suit cannot go behind the earlier decree because the earlier-decree settles rights of the parties. The authority is distinguishable I have stated above that in the decree as reflected in document marked A'' no basis has been made out that how within a span of two months the possession has changed from Hari Singh to Sher Singh. A fact which on the face of it is false can be successfully highlighted by the present Defendant.

Learned Counsel for the Appellant has also relied upon Chikkam Koreswara Rao Vs. Chikkam SubbaRao and Others, . and submitted that before acting on an admission it has to be shown by the opposite party that the admission suffered by the party was clear in its meaning. I also subscribe to the dictum as laid down by the Hon''ble Supreme Court, but in the present case it was for the Plaintiff to show under what circumstances he made the statement on 5.11.1975 that he had nothing to do with Killas Nos. 18 and 23 and also under what circumstances he got the possession after 5.11.1975 and before 26.12.1975. He cannot take the advantage by offering an unconvincing explanation when he appeared in rebuttal on 5.6.1982 during the proceedings of the present suit.

This leads me to discuss the argument raised by Mr. Verma that due to the intervening circumstances, the appeal of the Plaintiff is liable to be dismissed as the land in question had already been acquired and the compensation had been awarded to his client, so much so the enhanced compensation had also been announced. I do not approve of the argument of Mr. Verma. I cannot lose sight of the fact that the trial Court decreed the suit of the Plaintiff. The rights of the parties are supposed to be determined in a pre-emption suit with respect to the rights of the pre-emptor on the date of the sale, on the date of the suit and on the date of the decree. The present appeal is in continuation of the suit. Had this Court set aside the judgment and decree of the first appellate Court, the decree of the trial Court would have merged with the decree of this Court and this Curt would have put its seal on the judgment and decree of the trial Court, and any transaction during the pendency of this appeal would not affect the rights of the Plaintiff. Thus I repel the argument of the learned Counsel for the Respondent.

In the earlier portion of this judgment I have approved the reasons of the first appellate Court and have come to the conclusion that the approach of the learned trial Court in dealing with the evidence was erroneous and it fell in error by making a cursory glance to the documents and the evidence and held in an erroneous manner that the Plaintiff was successful in proving his tenancy over the land in dispute on the date of the sale and on the date of the institution of the suit.

In view of my above discussion, I am of the considered opinion that this appeal is without any merit and the same is hereby dismissed, leaving the parties to bear their own costs.