Vasdev etc. vs Ram Singh

D.B. Lal, J.—This second appeal is directed against the decision of the District Judge, Hamirpur, who has upheld in appeal the decision of the Sub-Judge, First Class, Una, and has thereby decreed the suit of Ram Singh for pre-emption in respect of slae of 1/3rd share of land measuring 5 Kanal 18 Maria described in the head-note of the plaint. Ram Singh came to Court with the allegations that the vendor-Defendant executed the sale-deed on March 30, 1971, in respect of the 1/3rd share in land in favour of the vendee-Defendant and the sale consideration was fictitiously shown at Rs. 1200/-although it was only Rs. 800/-. The Plaintiff claimed to be a co-sharer with the vendor and as such entitled to pre-empt the sale. The vendee-Defendants contended that they were tenants in the land and as such the Plaintiff could not claim a superior right of pre-emption.

The learned trial judge decreed the suit and held the consideration to be Rs. 1200/-. The first appeal came before the learned District Judge and he too has decreed the suit and thus upheld the Judgment of the learned trial Judge. The Defendants have now come up in second appeal.

The learned Counsel confined his arguments on two points, that proper issues were not framed and so the Defendants were prejudiced and that a co-sharer in Kangra had no right to pre-empt under Punjab notification No. 4669 dated 6th March, 1917, and as such the Plaintiff could not preempt as against, the Defendants who were tenants. The two Courts below have found that the Defendants are not tenants and that finding is a question of fact which cannot be interfered within second appeal. As regards the superior right of Plaintiff to pre-empt, the learned Counsel submitted, that in view of the Division Bench decision of this Court Kalu Ram v. Madho Ram ILR 1972 (HIM) 63 the said notification of 1917 still holds good and is not inconsistent with any provision of the re-enacted Section 15 of the Punjab Pre-emption Act, 1913. Since under that notification the co-sharers have been deprived of their right of pre-emption in the District of Kangra and for the present the disputed land falls within that District, the Plaintiff cannot claim a right of pre-emption. The assistance is sought from Bhagwan Das (Dead) by Lrs. and Others Vs. Chet Ram, which held that the pre-emptor in order to succeed must have a light to pre-empt not only at the time of sale but also at the time of the institution of the suit and also at the time of passing of the decree. According to the learned Counsel, on the date of the sale and on the date of the institution of the suit the disputed land fell within the District of Kangra and since the notification of 1917 was valid and enforceable the Plaintiff being co-sharer had no right to pre-empt. The suit was, however, decreed on 29-6-1974 and on that date the disputed land fell within Una district. This was done because of reorganisation of District which came into effect on 1-9-1972. The disputed village fell in Una District and was taken away from Kangra district to which it foremerly belonged. In my opinion, the argument is ingenious but is devoid of any merit. u/s 8(2) of the Punjab Pre-emption Act, 1913, the local government may declare by notification that in any local area no right of pre-emption shall exist. Accordingly the notification of 1917 was issued saying that in the District of Kangra the right of pre-emption shall not exist in favour of a co-sharer. Therefore, the District of Kangra was considered "a local area" within the meaning of Section 8(2). In other words, it means that whatever comprised District of Kangra on 6th March, 1917 was considered to have the effect of the notification of that date. The disputed land and the disputed village obviously never fell within the District of Kangra on that date. It was rather included in the District of Hoshiarpur. It is, therefore, abundantly clear that the notification of 1917 never applied to the disputed village and the co-sharers residing in that village did not lose their right of pre-emption. Any subsequent addition or subtraction in the District of Kangra will not vest or devest a right of pre-emption. If at any time afterwards the disputed village was included in the District of Kangra that would not confer a disability regarding preemption attributable to the notification of 1917. The disputed village was subsequently included in he District of Kangra and the inhabitants of that village never resided in the local area for which the notification of 1917 was issued. As such they were not excluded from exercise of a right of pre-emption on the basis of the notification of 1917 which clearly excluded them. Thus on the date of the sale as well as on the date of the filling of the suit the Plaintiff being the co-sharer had the right of pre-emption. On the date of the decree obviously the disputed village fell within the District of Una and the notification of 1917 did not apply to that District. Even if the disputed village was subject to any disqualification regarding pre-emption by virtue of the notification of 1917 its subsequent inclusion in the District of Una would not have conferred upon the inhabitants of that village the right to claim pre-emption. Thus the inclusion of an area on a subsequent date in Kangra district did not make it subject to disqualification as to exercise of right of pre-emption to which it was not subjected to previously with reference to the notification of 1917. The Plaintiff will thus have a right to pre-emption, he being a co-sharer and the Defendants not being tenants.

As regards the framing of issues, both the Courts below have rightly held that the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side. As such it cannot be held that the absence of an issue, if any, was fatal to the case. In support of this proposition, reference can be made to Nedunuri Kameswaramma Vs. Sampati Subba Rao, .

Thus the decisions arrived at in the Courts below cannot be set aside on any of the pleas raised by the Appellant. The appeal is dismissed. However, no order is made as to costs.