Mangat Singh (dead) through LRs v. Nanu Singh & Ors.

This regular second appeal by the plaintiff/appellant, is directed against the judgment and decree dated 25.10.1985 passed by the learned lower appellate court, vide which suit filed by the RSA No.3351 of 1985 2 plaintiff/appellant for possession by way of pre-emption of sale was ordered to be dismissed. Deceased plaintiff filed a suit on 2.1.1981 for possession by way of pre-emption of land measuring 5 marlas, out of total land measuring 16 marlas, as detailed in the head-note of the plaint, on the averments that Jasmer Singh and Naranjan Singh sold the suit land measuring 5 marlas to defendant Nanu Singh etc. for a sum of Rs.500/- (Rupees five hundred only) vide sale deed dated 18.2.1980. The plaintiff claimed a superior right of pre- emption. However, the details as to how the plaintiff/appellant had a superior right was not mentioned in the suit. Written statement was filed, wherein allegations made in the plaint were controverted, by pleading that transaction in question was not a sale but exchange of land. It was also pleaded by the defendants- respondents that plaintiff/appellant was a mediator in the transfer, therefore, estopped from claiming right of pre-emption. Stand of the defendants/respondents further was, that the plaintiff had no superior right of pre-emption in respect of the suit property, as the plaintiff failed to disclose his status to pre-empt the suit land. The defendants/respondents also claimed that in case of success they were also held entitled to expenses incurred on stamp duty and registration fee etc. The plaintiff filed replication to the written statement, wherein factum of transaction being exchange was denied, and it was asserted that it was a sale. The plaintiff also denied being the mediator. In the replication it was pleaded that the plaintiff/appellant was real brother of vendor and also co-sharer in the khata of which the land sold formed part. Therefore, had RSA No.3351 of 1985 3 superior right of pre-emption. On the pleadings of the parties, learned trial court framed the following issues.

1. Whether the plaintiff has no superior right of pre- emption? OPP

2. Whether the transaction is not a sale, if so, its effect? OPD

3. Whether the land in dispute is not agricultural land as such it is not pre-emptible as alleged in additional plea para No.2 of the written statement? OPD

4. Whether the plaintiff is estopped from filing this present suit? OPD

5. Whether the plaintiff is entitled to sale expenses as alleged in written statement? OPD

6. Whether the defendant has made any improvement in the land in dispute, if so, to what value? OPD

7. Relief. Learned trial court keeping in view the fact, that the plaintiff was proved to be co-sharer of the land held, that the plaintiff/appellant had a superior right of pre-emption. On issue No.2, transaction was held to be sale, therefore, pre- emptible. Issues No.3, 4, 5 and 6 were decided against the defendants/respondents. Consequently, suit was decreed. RSA No.3351 of 1985 4 Defendants/respondents filed an appeal against the judgment and decree. Learned lower appellate court, reversed the finding of the learned trial court by recording that the learned trial court committed an error in placing reliance on the replication filed by the plaintiff/appellant, for coming to the conclusion that the right of pre-emption by the plaintiff/appellant was being co-sharer of the suit land, though there was no such pleading in the plaint, as filed within the limitation prescribed for pre- emption. Learned lower appellate court held, that as the replication, was filed after the expiry of period of limitation, prescribed for suit of pre- emption, it was not open to the learned trial court, to take into consideration the pleadings in the replication, to decide in favour of the plaintiff/appellant to hold that plaintiff had superior right of pre-emption. The appeal was accepted and the judgment and decree passed by the learned trial court was set aside, and the suit filed by the plaintiff/appellant was ordered to be dismissed. Learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law, for adjudication by this court:-

1. Whether the judgment and decree passed by the learned lower appellate court is perverse being against settled law that the replication is part of pleadings?

2. Whether the learned lower appellate court was justified in reversing the judgment of learned trial court by ignoring the pleadings and evidence on record showing that the RSA No.3351 of 1985 5 plaintiff/appellant had a superior right of pre-emption. In support of the substantial questions of law referred to above, learned counsel for the appellant vehemently contended, that the plaintiff/appellant was proved to be the brother and co-sharer of the vendor. Therefore, the plaintiff had a superior right of pre-emption. Learned trial court on appreciation of evidence had rightly come to the conclusion that the plaintiff/appellant had a superior right of pre-emption. The finding of fact could not be reversed, as it was based on appreciation of evidence. It was contended that the learned lower appellate court by misreading the settled law, wrongly reversed the findings by holding that the pleading in the replication could not be read in support of the plea of pre-emption. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. Hon'ble Division Bench of this court in the case of Shankar Singh Vs. Chanan Singh 1968 Current Law Journal 363, was pleased to lay down as under: “3. There is only one argument which is urged by the learned counsel on behalf of the vendee and that is that according to section 15 of the Punjab Pre-emption Act, 1913 (Punjab Act 1 of 1913), collateral relationship is no ground of pre-emption in so far as the right of pre-emption in respect of agricultural land is concerned. This obviously has not been and cannot be denied on the opposite side, but it is pointed out on the side of RSA No.3351 of 1985 6 the plaintiff that ground is Secondly and Thirdly in clause (a) of sub-section (1) of section 15 of Punjab Act of 1913 give a right of pre-emption in respect of agricultural land to the brother of brother's son of the vendor, and to the father's brother or father's brother's son of the vendor, and the learned counsel for the plaintiff says that that relationship is the one which the plaintiff has with Arjan Singh vendor and with Sohan Singh and Pritam Singh vendors. The learned counsel stresses that the plaintiff has done no more than to explain the nature of his collateral relationship in his amendment application and that the ground on which he claimed preferential right of pre- emption on the basis of collateral relationship has been stated in the plaint itself. The learned counsel has further pointed out that if instead of making an application for amendment of the plant, in this respect the plaintiff had filed a replication, after the written statement of the vendee, giving therein the same relationship, it would have been read as a part of his pleadings and no question of amendment would have arisen. However, this is what has not actually happened and at this stage the learned counsel has not urged that the application for amendment of the plaint by the plaintiff be treated as a replication filed by him to the written statement of the vendee. The learned counsel for the vendee first refers to Rulia Ram V. Ram Chander Dass, in which right of pre-emption had been claimed on the basis of contiguity, but on discovery that that RSA No.3351 of 1985 7 ground was not available a new ground that there was common entrance in the lane was claimed after the period of limitation. Such amendment the learned Judge refused. This case was followed in Chandgi Ram V. Rabi Datt, in which originally the preferential right of pre-emption was claimed on the basis of the claimants being Biswedars in the village, but when it was found that before the institution of the suit the vendee had also become a Biswedar in the village, the claimants, after the expiry of the period of limitation, sought amendment of the plaint to say that they were Biswedars in a particular sub- division of the village in which the land was situate, obviously implying that the vendee was not a Biswedar in the sub- division. Such amendment was disallowed by the learned Judge. Now, although in those two cases the new ground introduced had no possible relation with the ground originally pleaded in the plaint, but the basis on which those cases proceed equally applies to the present case. The basis is that the specific ground on which preferential right of pre-emption is sought must be pleaded in the suit within the period of limitation. In this case all that Chaman Singh plaintiff did was to say that the vendors are his collaterals, but in section 15 of Punjab Act 1 of 1913 such relationship by itself does not give a right of pre-emption. A particular defined relationship does give a right of pre-emption and if on the ground of relationship such a right is claimed then obviously the particular RSA No.3351 of 1985 8 relationship referred to as a ground in section 15 of Punjab Act 1 of 1913 has to be stated in the plaint within the period of limitation. If after the period of limitation such an attempt is made it cannot be permitted to defeat a right that has accrued to the vendee to defeat the pre-emptor's claim as not coming within the statutory provision upon which reliance is placed. Obviously the learned Judge was wrong in allowing the amendment.” Learned lower appellate court was right in rejecting the claim of the appellant of superior right of pre-emption as the replication was admittedly filed after the period of limitation was over. The substantial questions of law raised are answered against the appellant. Resultantly, the appeal is dismissed, but with no order as to costs.

20.09.2010 (Vinod K.Sharma) Judge