Case: Gurnam Singh & Others Vs. Surjit Singh & Others

P. Jaganmohan Reddy, J.1. This appeal is by certificate against the judgment of the Punjab High Court dismissing the pre-emption suit of the appellant by reversing the concurrent judgment of the trial court and the 1st Appellate court.2. The plaintiffs alleged that they had purchased on 10-5-55 the share of Khotu and Chandu Ram in Khewat 2, Khata 26 to 44 and 6 bigas and 7 biswas in Khewat No. 3 Khatas 49 to 54 comprising in all an area of 213 bigas and 14 biswas. On 16-4-57 respondents 1 to 6 purchased 926 bighas in Khewats nos. 2 and 3 for Rs. 43,600/-. Nearly a year thereafter the deed of sale was registered on 19-3-68. The plaintiffs filed a pre-emption suit against respondents 1-6 on the ground that they were Biswadars and co-shares in the land in dispute. For the purpose of this appeal, it is not necessary to consider their claim of Biswadari rights because the claim on which the plaintiffs rely mainly is of their being co-shares along with the vendors in the lands sold to respondents 1-6. The suit was decreed on 4-1-60 and on appeal the District Court confirmed the decree on 6-3-61. The High Court, however, in second appeal reversed that decree on the ground that the appellants had not established that they had on the date of the decree any lands in which they were co-shares with the vendors in the land sold to respondents 1-6. At this stage, we may mention that before the decree was passed by the trial court, the appellants had sold their co-shares right in Khewat No. 2 Khatas Nos. 26-44 and Khewat 3 Khatas 49-54. It was their case that after the sale this deal had co-ownership rights in 6 bighas and 7 biswas and consequently they were entitled to a decree for pre-emption. The trial court on oral evidence held that 6 bighas and 7 biswas that were said to have been retained by the appellants pertained to the co-ownership in the suit lands and consequently they had the right to pre-empt. As we said earlier, the first appellate court also tool the same view. The main question is whether the appellants had superior rights of pre-emption. What the appellants have to establish under Section 15 (b) forthly of the Punjab Pre-emption Act is that the sale was out of joint land or property which had not been made by the co-sharers jointly and that they were the other co-sharers who had not joined in the sale.It is well settled that this right had to subsist on the plaintiffs not only at the time when the sale sought to be pre-empted was effective but up to the date of the decree. Though it was not disputed that the plaintiffs were co-shares in the aforesaid khatas of khewats no.s 2 and 3, what was contested was that after the transfer of practically the entire area on that date the plaintiffs ceased to be co-sharers who could pre-empt the sale relating to 926 bigas in khewats 2 and 3 because it was nowhere proved in which khata or khewat the area had been left and in what manner the plaintiffs remained co-shares so far as the suit lands were concerned. The High Court pointed out that the appellants had not produces the sale deed dated 19-5-69 (59?) by and under which they had sold their co-ownership rights in khewat no. 2 khatas 26-44 and khewat no. 3 khatas 49-54.3. In view of the omission to file the most important document, it was not possible to ascertain whether 6 bighas and 7 biswas which were said to have been left to them did in fact pertain to khewat 2, khatas 26-44, and khewat 3, khatas 49-54. The omission to file a document which was in the power and possession of the appellants entitled the High Court to draw an adverse inference against the appellants and in that view they allowed the appeal and dismissed the suit. Some argument seems to have been advanced in the High Court based on the definition of holdings in Section 3 (3) as meaning a share or portion of an estate held by one owner or jointly by two or more land owners. On this basis it was contended that the appellants being owners of the land which held the estate they must be regarded as co-shares in the land in dispute. The High Court pointed out that by no stretch of reasoning each and every land owner in the village which is an estate can be regarded as a co-sharer every parcel of land situated in that village no matter whether he has any share in that particular land or not. It appears to us that the issue is a narrow one namely whether the appellants had established that even if they had a co-ownership as alleged by them, in Khewat nos. 2 and 3, when they sold those rights, 6 bighas and 7 biswas, which they alleged were retained by them in khewats nos. 2 and 3. No amount of oral evidence can establish this fact when in fact they could have established (it) by a registered document. As pointed out by the High Court, even the Patwari was not asked about it. For some reason, which the appellant must know best, they have not produced the sale deed either in the High Court or even at this stage. The sale deed is a public document and could have been easily looked into if they would have asked for it to be admitted at the appellate stage. The suppression of the document justified the drawing of an adverse inference that if it was produced, it would have established that the appellants had no lands left after they sold them on 19-5-1969 (59?). As the appellants have not established that they are co-owners in the lands sold on the date of the decree they are no entitled to a decree of pre-emption.

Decision:
0[ds]3. In view of the omission to file the most important document, it was not possible to ascertain whether 6 bighas and 7 biswas which were said to have been left to them did in fact pertain to khewat 2, khatasand khewat 3, khatasThe omission to file a document which was in the power and possession of the appellants entitled the High Court to draw an adverse inference against the appellants and in that view they allowed the appeal and dismissed the suit. Some argument seems to have been advanced in the High Court based on the definition of holdings in Section 3 (3) as meaning a share or portion of an estate held by one owner or jointly by two or more land owners. On this basis it was contended that the appellants being owners of the land which held the estate they must be regarded asin the land in dispute. The High Court pointed out that by no stretch of reasoning each and every land owner in the village which is an estate can be regarded as aevery parcel of land situated in that village no matter whether he has any share in that particular land or not. It appears to us that the issue is a narrow one namely whether the appellants had established that even if they had aas alleged by them, in Khewat nos. 2 and 3, when they sold those rights, 6 bighas and 7 biswas, which they alleged were retained by them in khewats nos. 2 and 3. No amount of oral evidence can establish this fact when in fact they could have established (it) by a registered document. As pointed out by the High Court, even the Patwari was not asked about it. For some reason, which the appellant must know best, they have not produced the sale deed either in the High Court or even at this stage. The sale deed is a public document and could have been easily looked into if they would have asked for it to be admitted at the appellate stage. The suppression of the document justified the drawing of an adverse inference that if it was produced, it would have established that the appellants had no lands left after they sold them on(59?). As the appellants have not established that they arein the lands sold on the date of the decree they are no entitled to a decree of