S.A.O. No.18 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. S.A.O No.18 of 2008 Date of Decision: 04.08.2009 Chaman Lal ....Appellant Versus Raghbir Kumar and another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Bhag Singh, Advocate for the appellant. Mr. Pritam Saini, Advocate for respondent No.1. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. The plaintiff-Raghubir Kumar filed suit for a decree of possession by way of pre-emption of the land. Vachitar Singh son of Ujagar Singh and others were owners of the land, in dispute, measuring 4 Kanals 4 Marlas. Out of this land, 4 Kanals were sold to Chaman Lal and Sucha Singh, the defendants. The defendant Chaman Lal and Sucha Singh entered into a sale of land for a consideration of Rs.90,000/-. The plaintiff built up his case that he has a superior right of pre-emption to pre-empt the aforesaid sale as he was the Chokotedar of the land, in S.A.O. No.18 of 2008 2 dispute and being a tenant, he has a right to pre-empt the sale. Hence, he requested the defendants-Chaman Lal and others to allow him to purchase the land. When the defendants did not agree, the plaintiff filed a suit for a decree of possession by way of pre-emption. Upon notice, the appellant appeared and contested the suit and it was clearly stated that the appellant-defendant have purchased the land from the original owners for a sale consideration of Rs.90,000/- and not for Rs.30,000/-. Trial Court framed the issues and Issue no.1 before the trial Court was “whether the respondent-plaintiff has superior right to pre-empt the impugned sale deed 14-06-1995 with regard to the land in dispute?” The said suit was dismissed vide order dated 24-12-2007 by Civil Judge, Ambala. Plaintiff-Raghubir Singh, on being unsuccessful before the trial Court, filed an appeal against the judgment dated 24-12-2007. However, the said appeal was allowed and the matter was remanded back to the trial Court to decide it afresh after giving due opportunities on the ground that the documents Exh. D-1 which is in the shape of latest girdawari and affidavit Exh. DX/O which is an affidavit dated 26-02-2007 has changed the entire complexion of the case and they were brought on the fag end of the case. Learned counsel for the appellant submitted that the respondent-plaintiff in a pre-emption case has to maintain his status at three stages i.e. (i) at the time of sale; (ii) at the time of institution of the suit; and (iii) at the time of passing of the decree by the trial Court. These are the three stages/things which have to be proved by the respondent- S.A.O. No.18 of 2008 3 plaintiff while leading his evidence. The appellant-defendant have produced the Khasra Girdawari for the year 2007 Ex.D1 in which the khasra girdawari was changed in the name of Rajender Kumar son of Chet Ram vide Rapat No.580, as well as affidavit Exh. DX/O showing that plaintiff-Raghubir Kumar signed the same proving the change of the khasra girdawari in the name of Rajender Kumar. The appellant-defendant and the respondent-plaintiff was not required to amend their pleadings for proving thestatus upto the passing of the decree and the suit of the respondent- plaintiff can be defeated by all legitimate means at the instance of vendee as the right of pre-emption is a piratical right and the vendee is on the defensive and is entitled to arm himself with a shield in order to protect his right and to succeed preemptor who is an aggressor and as such, the respondent-plaintiff who is an aggressor has to prove his superior right of preemption till relevant times. Learned counsel for the plaintiff-respondents, however, prayed that they should have been allowed to frame an issue to prove Exh. DX/O and allowed to lead evidence for the purpose. Learned counsel for the parties have been heard. The Ex. D1 was produced by the appellant-defendant to show that the plaintiff has lost his right of pre-emption and thus even the girdawari has been changed in the name of other person. The entire controversy, on the basis of which, the matter has been remanded, is an affidavit Exh.DX/O produced by the appellant-defendant in the suit at the time of leading their defence evidence. As per this affidavit Exh. DX/O which bears the signatures of the respondent-plaintiff is produced to show that as per latest khasra girdawri in the year 2007, the khasra girdawari has been changed in the name of Rajender Kumar son of Chet Ram vide Rapat No.580. This affidavit was attested by Executive Magistrate. The respondent-plaintiff, however, disputed this affidavit and said that there S.A.O. No.18 of 2008 4 was no need for him to execute this affidavit and hence, the affidavit is forged. With respect to the affidavit, the trial Court recorded the following findings :- “ But I am unable to give any benefit of the same to the plaintiff as admittedly, this affidavit EX.DX/O bears the signature of plaintiff as is admitted by him in reply to an application for leading additional evidence moved by the defendants and in the statement of counsel for the plaintiff made in the court on 18-12-2007 when he has stated that plaintiff admitted his signature on the affidavit Ex.DX/O. Further this affidavit has been attested by executive Magistrate, Ambala. So it shall be presumed that this affidavit was executed by the plaintiff willfully in the presence of Executive Magistrate, Ambala as he has admitted his signature. A plea has been taken at the time of arguments that the plaintiff had a property transaction in February, 2007 with the property dealer who purchased a stamp paper in his name and this affidavit might have been got executed by him by misrepresenting and by fraud, but this fraud has not been proved by the plaintiff in his evidence, as no evidence has been led on file to show that this affidavit was got executed from the plaintiff fraudulently. In fact, the Halqa Patwari was examined by the defendants, who has categorically stated on oath that he knew plaintiff personally and the plaintiff had personally appeared before him along with Rajender Kumar in whose favour khasra girdawri has been changed and he personally handed over the affidavit Ex.DX/O to him duly attested by Executive Magistrate, Ambala and on the basis of same, the khasra girdawri was changed. So as per evidence on file, it is proved that this affidavit was executed by plaintiff and the Halqa Patwari has also stated that the same was handed over to him personally by the plaintiff. On the other hand, there is no cogent evidence on file to prove the fraud as argued by counsel for the plaintiff. Otherwise S.A.O. No.18 of 2008 5 also a plea of fraud must be proved beyond reasonable doubt, as in criminal proceedings but the needful has not been done. So it shall be presumed that the khasra girdawari was got changed by the plaintiff himself in favour of Rajender Kumar son of Chet Ram and so now he is not in possession of the suit property in any capacity what-so-ever.” I find merit in the arguments raised by learned counsel for the appellant, in as much as, no doubt that the affidavit Exh.DX/O was produced, however, the same was produced by the appellant-defendants, in their defence. After the same was produced by the appellant, the respondent-plaintiffs had sufficient time and opportunity to lead their evidence which they did. It is obvious from the judgment of the trial Court that the respondent-plaintiffs, in rebuttal evidence, examined four more witnesses, including himself. He examined A.K. Verma, Stamp-Vendor (PW-3) who deposed that stamp-paper of affidavit Exh.DX was not issued in favour of the plaintiff but the same was taken by the plaintiff through Dheeraj Bakshi, in his name. Halqa Patwari Davinder Singh himself appeared as PW-4 and proved the affidavit Exh.PX. Hari Ram appeared as PW5 who deposed that affidavit Exh.PX was brought by Bakshi and also identified the photograph of Raghubir. Respondent-plaintiff, himself appeared as PW-6 and deposed that affidavit Exh.DX/O was never executed by him. Thereafter, even a documentary evidence was produced by the respondent-plaintiffs, in rebuttal evidence. The respondent-plaintiffs themselves closed their rebuttal evidence on 24-12-2007. After having been granted sufficient opportunities, the respondent-plaintiffs cannot say that opportunity was required to be given to amend their pleadings and only, thereafter, they could have led evidence in favour or opposition of documents Exh.DX/O and Exh.D1. Nothing has been mentioned to show as to which further evidence, they wanted to lead in order to challenge Exh.DX/O beyond the evidence already led in rebuttal before the trial Court S.A.O. No.18 of 2008 6 in the form of four witnesses. Sufficient time was granted to lead evidence which was duly led. The issue No.1 as framed above, was sufficient in itself for proving the said issue. The respondent-plaintiffs were required to prove their status upto the decision of the case. The right of pre-emption is a piratical right which can be defeated by any legitimate means. It is obvious from the above facts that it was a suit of the respondent-plaintiffs. They led their own evidence as well as sufficient evidence in rebuttal to show that Exh.DX/O was fictitious document or not. Thus, there is no ground for remanding the matter to the trial Court to lead more evidence or change the pleadings only to fill up the lacunnas and unnecessary delay the proceedings. Accordingly, the order dated 29-04-2008 passed by Additional District Judge (Ad hoc), Ambala, is set aside and the Appellate Court shall, accordingly, proceed to decide the appeal in accordance with law. Any observation made in the present Second Appeal will have no bearing on the merits of the case. Dismissed. (NIRMALJIT KAUR) 04.08.2009 JUDGE gurpreet