Teja Singh and others vs Bhagwan Singh

A.D. Koshal, J.—By this judgment I shall dispose of two appeals namely. Second Appeal from Order No. 44 of 1967 and Regular Second Appeal No 131 of 1970, both of which arise from a pre-emption suit instituted for possession of 119 kanals of land sold by one Rajinder Singh in favour of ten persons who figure as Appellants in both the appeals, the Respondent to each one of them being Bhagwan Singh the Plaintiff pre-emptor. The sale was evidenced by sale deed Exhibit D. 3 executed on the 17th of October, 1964, which states the price paid for the land to be Rs. 24,000/- and describes the property conveyed to the Appellants thus:

119 kanals of land detailed thus:

(2) 4 marlas of area (being 1/ 12th share out of 2 kanals 0 marla), square No. 36, killa No 26, well, khewat No. 59, khatauni No. 200 along with mahal chah, ihata chah and the accessories (saman) of the running chah known as Labh Singh wala having a single persian wheel-jamabandi for the year 1961-62.

The sale deed proceeds to state that the price for which the land was agreed upon to be sold was Rs. 24,000/- and then lays down the details of the manner in which it was being received by the vendor. These details cover more than one out of four sheets of paper of which the deed is comprised. Thereafter it adds:

l/3rd out of 1/7th share in the well known as Bhattianwala is also included in the sale and the same is designated as khewat No. 75 khatauni No. 230 square No. 24, killa No. 26, chah-jamabandi for the year 1961-62

Then appear some of the other terms of the sale.

The sale deed was registered on the 19th of October, 1964, and the suit above mentioned was instituted by the Respondent on the 19th of October, 1965. In the plaint the property sought to be pre-empted was described precisely in the terms as in that part of the sale deed which precedes the recitals about the manner in which the price was paid. No mention was made in the plaint about chah Bhattianwala but it was stated that the price really paid for the sale was Rs. 12,000/- although it was fictitiously entered in the sale deed as Rs. 24,000/-.

On the date of the presentation of the plaint in court, the learned trial Judge directed that Rs 4800/- being the one-fifth of the probable value of the amount in suit be deposited by the Plaintiff in court by the 30th of November, 1965, in accordance with the requirements of Section 22(1) of the Punjab Pre-emption Act (hereinafter to be referred to as the Act). In pursuance of an application made on the 23rd of November, 1965, the time for deposit was extended on the 29th of November, 1965, till "15th January, 1965".

On the 30th of November, 1965, the suit was dismissed for default in appearance of the Plaintiff. The dismissal, however, was set aside on the 2nd of December, 1965, when the learned trial Judge directed that zar-e-panjam be deposited by "15th January, 1966". Later on, however, the Plaintiff put in an application for permission to furnish security instead of making the deposit and the trial Judge ordered on the 7th of January, ]966, that out of the amount of Rs. 4,800/- above mentioned, Rs. 2,000/- be deposited in cash and security furnished for the rest. This order was complied with by the 15th of January. 1966.

The written statement on behalf of the vendees Appellants was presented to the Court on the 19th of March, 1966 (although it is dated the 13th of March, 1966). It listed six preliminary objections of which the last one stated that one-third of one-seventh share in chah Bhattianwala of which the. description was:

Khewat No. 75, khatauni No. 230. square No 24, killa No. 26'' according to the jamabandi for the year 1961-62, was part of the property sold and the suit was liable to dismissal on the ground that the Plaintiff did not ask for its possession and, had therefore, sought partial pre-emption.

As soon as the written statement was filed, the trial Court adjourned the proceedings for a replication by the Plaintiff and for framing of issues to the 6th of April, 1966 on which date, however, the Plaintiff presented an application praying for an amendment of the plaint so as to include the Bhattianwala chah as detailed above in the property of which he sought possession. The application stated that the omission to ask for possession of that well in the first instance was unintentional and had been occasioned inadvertently and through an oversight. The application was dismissed by the trial Court on the 30th of April, 1986, mainly on the ground that a valuable right had accrued to the vendees on account of the expiry of the period of limitation and that on amendment which would deprive them of that right could not be allowed. By the same order the trial Court dismissed the suit as being one for partial pre-emption which the law did not permit.

The Plaintiff took an appeal to the Court of the District Judge who held that the trial Court was illadvised in not allowing the Plaintiff to amend the plaint in view of the fact that the Plaintiff had expressly indicated that his claim for pre-emption extended to the property comprised in the sale deed (Exhibit D.3) which was appended to the plaint. According to the learned District Judge, the failure of the Plaintiff to specifically ask for the share in the Bhattianwala well had arisen merely from inadvertence He was, therefore, of the view that suit had been erroneously dismissed. It was contended before him that the plaint was in any case liable to be rejected on the ground that the Plaintiff had failed to comply with the various orders of the trial Court with regard to the making of deposit. This contention was turned down by the learned District Judge for the following reasons:

(a) The extension of time granted on the 29th of November, 1965, for making the deposit of Rs. 4.800/- being till "15th January 1965" created a wholly absurd situation as the learned trial Judge did not realise the mistake that the date last mentioned had already long gone by and rendered the order of extension illegal.

(b) In any case the order of extension made on the 29th of November, 1965, came to an end with the dismissal of the suit on the next day and it was incumbent on the learned trial Judge when making a fresh order for deposit of zar-e-panjam on the 2nd of December, 1965, after the suit was restored, to state what the amount there of was to be. His failure in this regard rendered the second order of deposit also illegal.

(c) The order dated the 7th of January, 1966, stood in no better position as the learned trial Judge could not split up the amount of Rs. 4,800/- so as to ask for its deposit in cash in part and for furnishing security with regard to the rest.

(d) Till a legal order was made in this behalf, the penalty involving the rejection of the plaint could not be imposed on the Plaintiff.

In the result, the learned District Judge accepted the Plaintiff''s appeal, set aside the judgment and decree of the trial Court and remitted the case to it for redecision in accordance with law after making-a proper order under the provisions of Section 22(1) of the Act as also after allowing the Plaintiff opportunity to amend the plaint. It is against this order of the learned District Judge that the vendees-Defendants have filed Second Appeal from Order No. 44 of 1967.

After the case was remanded to the trial Court, it allowed the Plaintiff to effect the necessary amendment in the plaint and then proceeded with the suit which was based on the sole ground that the Plaintiff, as on the date of the sale, was a tenant of the vendor in ressect of the land in dispute. The learned trial Judge held that although the Plaintiff was such a tenant, he had lost this qualification during the pendency of the suit inasmuch as an order of ejectment from the land was passed against him by the Collector on the 17th of August, 1966, which order, in view of Banarsi Dass v. Devi Dayal (1967) 69 P.L.R. 417. and Umrao v. Shri Nemi Chanad 1967 C. L. J. 885. had the immediate effect of terminating the tenancy of the Plaintiff. He was further of the opinion that the Plaintiff''s suit could not succeed unless be retained the qualification up to the date of the decree. Findings on all the other points in issue went against the Defendants but the suit of the Plaintiff was dismissed on the 13th March,1968, the parties being left to bear their own costs.

The decree of the trial Court was reversed by Shri Pritpal Singh Additional District Judge, Ferozepore, on the 12th of December,1969, on the ground that the Plaintiff was to prove his tenancy in respect of the land under the vendor only with reference to the date of the sale and that in order to succeed in his suit it was not incumbent upon him to retain that qualification either at the date of the decree or even at the time of the institution of the suit. Reliance was placed by him on Gurbachan Singh and Ors. v. Bhagat Singh (1968) 70 P.L.R. 553. and Bhag Singh v. Bhajan Singh (1969) 71 P.L.R. 723., in preference to Balwant Singh and Ors. v. Mehar Singh 1967 C.L.J. 777., which was cited before him on behalf of the vendees-Defendants. Reversing the decision of the trial Court. therefore he decreed the Plaintiff''s suit subject to the condition that the latter paid a sum of Rs. 24,000/- on or before the 12th of January, 1970. It was directed that if the amount last mentioned was not paid within the specified period, the suit would stand dismissed with costs. It is against the decree passed by Shri Pritpal Singh that the Defendants have filed Regular Second Appeal No. 131 of 1970.

Learned Counsel for the Appellants has contended on the authority of Dr. Sewak Prashad v. Gram Panchayat C. R. No. 761 of 1965.. Civil Revision No. 761 of 1965, decided on the 1st of April, 1966, Harbans Singh v. Santokh Singh C. R. No. 711 of 1965., Civil Revision No. 711 of 1985, decided on the 14th of February, 1966, Mst. Kako Bai v. Pehlad8, Civil Revision No. 593 of 1961,decided on the 14th of December, 1962, Shankar Singh v. Chanan Singh (1968) 70 P.L.R. 455. AIR 1933 774 (Lahore) and Chandgi Ram and Another Vs. Rabi Datt, that the amendment of the plaint allowed by the District Judge amounted to depriving the Appellants of a right which had accrued to them by lapse of time, that permission for amendment must be revoked and that the suit be dismissed for the reason that it sought partial pre-emption. All these authorities no doubt relate to suits for pre emption but none of them directly covers the point with which we are concerned here. In Dr. Sewak Prashad v. Gram Panchayat C. R. No. 593 of 1961. (supra) the Defendant named was the Gram Panchayat concerned although it was incumbent upon the Plaintiff under the law to sue the relative "Gram Sabha". When the Plaintiff applied for amendment of the plaint so as to add the Gram Sabha as a party after the expiry of the period of limitation prescribed for the suit, the refusal to allow amendment was upheld by Falshaw, C J.

In Harbans Singh v. Santokh Singh C. R. No. 711 of 1965. (supra) the ground of pre-emption taken was that the Plaintiff was a tenant of the owner of the land sold while in fact he was the tenant of only the mortgagee thereof which fact he sought to introduce into the plaint by an amendment which was not allowed. Falshaw C. J., held that the refusal to grant permission for amendment long after the expiry of the period of limitation prescribed for the suit was justified.

In Kako Bai v. Pehlua C. R. No. 593 of 1961. (supra) the Plaintiff claimed possession of 70 kanals of land out of a total of 82 kanals covered by the relevant sale deed on the ground that he was a tenant in respect of the area claimed by him. The vendee resisted the suit on the ground that it was for partial pre-emption and could not be maintained. When the trial had virtually finished and the state of argument had been reached on the 8th of August, 1961. the Plaintiff applied to amend his plaint on the ground that he made a bona fide mistake regarding the area of the land he had sued for. The trial Court allowed the amendment with the find ing that the ground taken in fact existed. Falshaw C. J., held that there was no question of bona fide mistake in view of the proved facts which were that the area of the fields under the occupation of the Plaintiff as tenant as given in the copy of the jamdbandi obtained by him added up to exactly 82 kanals. Accordingly, he struck down the amendment as being without justification.

In Shankar Singh v. Chanan Singh (1968) 70 P.L.R. 455. (supra) the ground of preemption relied upon was that the Plaintiff was a collateral of the vendors. Later on he wanted to specify in the plaint the exact relationship he had with the vendors. The amendment sought was disallowed for the reason that it would amount to introducing a new ground of pre-emption in the plaint after the expiry of the period of limitation prescribed for the suit. The refusal to amend was upheld by Mehar Singh, C. J. Reliance in this case was placed on AIR 1933 774 (Lahore) and Chandgi Ram and Another Vs. Rabi Datt, both of which are similar on facts and in which the refusal to allow amendment seeking to add a fresh ground of pre-emption after the period of limitation above mentioned was maintained.

The amendment allowed in the present case did not seek to add any new party or a fresh ground of pre-emption but merely sought to add in the plaint a detail of the property which had been inadvertently omitted ha the original draft, although permission for the amendment was admittedly sought after the period of limitation prescribed for the suit had expired That the omission was inadvertent admits of no doubt in view of the facts above stated. The description of the property given in the plaint as originally presented is the same as in that part of the sale deed which proceedes the recitals about conside-ration and purports to give the full detail of the property sold including the means of irrigation, namely, a well situated in killa No. 26 of square No. 36. The reference to the Bhattianwala well appears in a subsequent part of the sale deed which would normally not be referred to for the purpose of finding out the description of the property sold in view of the tact that such description was given at length in an earlier part of the document and a person using ordinary diligence would be entitled to take it for granted that the property sold was described in the sale-deed in one place in a compendious form and that its description would not be split up so that a major part of it finds mention in the appropriate clause and a small one in another clause appearing towards the end of the document. In this view of the matter, the plea raised on behalf of the pre-empt or that the omission to metion the Bhattianwala well in the plaint as originally drafted had resulted from inadvertence cannot he said to be without substance and the learned District Judge had full justitication for acting upon it in spite of the fact that the period of limitation for the institution of the suit had expired earlier It is to be noted that no intention on the part of the Plaintiff to give up his claim to any part of the property sold can be spelt from the plaint in spite of the fact that no reference to the Bhattianwala well was made therein. He no doubt described the price paid as Rs. 12,000/ but then he also stated that the ostensible price was Rs. 24,000/-. This price, according to the Plaintiff, was the entire sum paid in respect of the bargain which he sought to take over as a whole. In these circumsta-nces the permission to rectify the error arising from the omission to specify the Bhattianwala chah as part of the property sold and sought to be pre-empted cannot be treated as depriving the vendees Defendants of a right which has accrued to them by lapse of time even though such permission is granted after the period of limitation prescribed for the suit, as it amounts merely to a direction that the Plaintiff state his case according to his real intention

The point is covered by authority. In Jalal Din and Ors. v. Qaim Din 62 P. R. 1914 : 1914 P.L.R. 255. the property sold consisted of 41 kanals 18 marlas of land, the second storey of a house, share in a well and share of shamilat. The suit for pre-emption described the property of which possession was prayed for merely as 41 kanals 18 marlas of land. The Plaintiff was allowed to amend his plaint so as to extend his claim to the second storey of the house, the share in the well and the share in the shamilat, although the period of limitation for the suit had already expired. In upholding the amendment, Johnstone. J., who delivered the judgment of the Division Bench consisting of himself and Shadi Lal, J., observed:

The lower appellate Court relied upon Kisandas Rupchand v. Rachappa, I. L. R. 33 Bom 844, and Barkat-un-Nisa v. Muhammed Asad Ali, I. L. R. 17 All. 288. As regards the former ruling Mr. Sewa Ram Singh contends that it lays down (p. 650) that amendment may be allowed only, if it does not work injustice to the opposite party. Here, he says, by the lapse of a year, his clients had acquired a valuable right, pre-emption is in its nature not a natural but an artifcial right, and it was unjust to allow an amendment calculated to deprive Appellants of the valuable right aforesaid. Arguments of this sort may have some validity in cases in which the defeats in a plaint were intentional ; but we can see in the action of the first Court here no injustice to Appellants on a reasonable view of all the circumstances.

The Allahabad ruling is met by the contention that there the defect in the original plaint was the omission of a minute fractional share in describing the share of the land sued for, while here the part omitted was distinct property different in kind from that included in the original prayer. This distinction certainly exists; but m our opinion this distinction is immaterial, the real test being, in our opinion, whether the onmsion was intentional or merely inadvertent .

In Banta Singh and Anr. v. Smt. Harbhajan Kaur (1969) 71 P.L.R 862. the facts were very similar to those of the instant case. There the property described in the sale deed and the plaint was 307 kanals 6 marlas of land along with all the ancillary rights and four kothas kham and one kotha pucca standing thereon. In the closing portion of the sale deed, however, this description was corrected by stating:

At the spot there are six kothas and they have been sold.

Reiving upon Jalal Din and Ors. v. Qaim Din 62 P. R. 1914 : 1914 P.L.R. 255. (supra) Gurdev Singh J , held that the amendment seeking to include all the six kothas in the property of which possession was claimed, was rightly allowed, even though it was applied for after the expiry of the period of limitation for bringing the suit had expired.

In Banta Singh and anothet v. Smt. Harbhajan Kaur (1969) 71 P.L.R 862. (spura) and Jalal Din and Ors. v. Qaim Din 62 P. R. 1914 : 1914 P.L.R. 255. (supra) were followed by B. R. Tuli, J in another similar case reported as Deedar Singh v. Dalbir Singh14. In that case the sale included land as well as an abadi bouse a vacant site and a house situated on a well The last mentioned three parcels of property, however, found a mention in the sale deed towards its end while the land which was the main property sold was described in the opening "part of the document. The amendment allowed by the lower Court to enable the Plaintiff to specifically ask for possession of the said parcels was held justified even though it was applied for after the period of limitation prescribed for the suit had expired.

In view of the above discussion, I have no hesitation in holding that no exception can be taken to the permission granted by the learned District Judge to the Plaintiff to amend his plaint.

Another contention raised on behalf of the Appellants was that the order passed by the trial Court on the 7th January, 1966, and directing that part of the deposit be made in cash and that security be furnished with regard to the rest being patently illegal, as held by the learned District Judge, it was incumbent on the Plaintiff to comply with the direction given by the trial Court on the 2nd of December, 1965, that the zar a panjam be deposited by the 15th of January, 1966. According to him, the Plaintiff was liable to be non suited on the sole ground that the deposit had not been made according to the direction list mentioned. This contention is also without force. As pointed out by the learned District Judge, the amount of the deposit was not stated in the direction which, therefore, did not comply with the requirements of law and the failure to obey which cannot attract the penalty which the law provides.

No other point was urged in support of Second Appeal from Order No. 44 of 1967 in which, therefore, I find no force.

The only point raised on behalf of the Appellants in support of their other appeal was that the Plaintiff-pre-emptor was not entitled to the relief prayed for by him unless he retained the qualification of being a tenant under the vendor right up to the date of the decree. The contention must however, be repelled in view of the. interpretation of the relevant portion of Section 15 of the Act by two Division Benches of this Court in Kashmiri Lai v. Chuhar Rant15 Letters Patent Appeal No 71 of 1965, decided by Mehar Singh, C.J., and B. R. Tuli, J, on the 19th of November, 1969, and Randhir Singh and Anr. v. Balbir Singh16 Regular Second Appeal No. 628 of 1967 decided by Mahajan J., and myself on the 17th of December, 1969, which overruled Baru Ram v. Manji Ram17 to the contrary, and held that in so far as a pre-emptor banks on the qualification of being a tenant holding the land or property sold or a part thereof under the tenancy of the vendor, he need not retain that qualification at any time subsequent to the sale, in order that his suit for pre-emption may succeed.

For the reasons stated, both the appeals are dismissed with costs