REGULAR SECOND APPEAL No.357 OF 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.357 OF 2010 (O&M) DATE OF DECISION: JANUARY 17, 2011 Noor Mohamad .... Appellant Versus Rajinder Singh & Others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. J. S. Hooda, Advocate for the appellant. Mr. Lokesh Sinhal, Advocate for the respondents. * * * * L.N. MITTAL, J. (ORAL) Defendant Noor Mohmmad, who was successful in the trial court, but has been unsuccessful in the lower appellate court, has filed the instant second appeal. Sheo Lal and Harna plaintiffs (since deceased and represented by respondents as their legal representatives) filed pre- emption suit against the defendant-appellant, alleging that Prem Dass sold 32 Kanals 14 Marlas land being 1/6th share of 196 Kanals 7 Marlas land to the defendant vide registered sale deed dated 12.04.2001 for ostensible sale consideration of Rs.4,96,000/-. Killa No.105/15 inadvertently mentioned in the said sale deed was corrected as Killa No.98/15 (8-0) by way of supplementary sale deed dated 20.04.2001. The plaintiff alleged that they are tenants over 6 Kanals 10 Marlas land being 1/6th share of 39 Kanals land out of joint land in question and, therefore, plaintiffs have superior right of pre-emption regarding said 6 REGULAR SECOND APPEAL No.357 OF 2010 (O&M) -2- Kanals 10 Marlas land. It was also alleged that sale was in fact affected @ Rs.75,000/- per acre, which amount was actually paid by the defendant to the vendor, but excess sale consideration was mentioned in the sale deed to defeat the pre-emption right of the plaintiffs. The defendant in his written statement admitted the factum of sale of 32 Kanals 14 Marlas in his favour vide sale deed dated 12.04.2001 as corrected vide sale deed dated 20.04.2001. The defendant also admitted that plaintiffs are tenants over the suit land since before the impugned sale. However, defendant alleged that plaintiffs have no right of pre-emption. It was also alleged that the sale was affected for consideration of Rs.4,96,000/- which amount was actually paid and was also marked price of the suit land. Various preliminary objections including the objection that 1/5 pre-emption money has not been deposited in time, were also raised. Learned Civil Judge (Junior Division), Ferozpur Zhirka, vide judgment and decree dated 29.09.2008 dismissed the plaintiffs' suit on the ground that 1/5th pre-emption money deposited by the plaintiff was deficient. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Nuh vide judgment and decree dated 10.11.2009 and thereby pre-emption suit filed by the plaintiffs stands decreed. Feeling aggrieved, vendee-defendant has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. As noticed hereinbefore, defendant in his written statement REGULAR SECOND APPEAL No.357 OF 2010 (O&M) -3- admitted the plaintiffs to be tenants over the suit land. Consequently, there is no dispute that plaintiffs have superior right of pre-emption in respect of the suit land. Learned counsel for the appellant, however, contended that in fact, defendant-appellant purchased 21 Kanals 15 Marlas land for Rs.4,96,000/- as mentioned in mutation Exhibit D-11 and, therefore, 1/5th pre-emption money deposited by the plaintiffs was deficient. The contention has been countered by the learned counsel for the respondents by submitting that admittedly as per the sale deed, sale was of 32 Kanals 14 Marlas land and accordingly plaintiffs deposited 1/5th pre-emption money as per proportionate sale price of the suit land measuring 6 Kanals 10 Marlas. I have carefully considered the rival contentions. As noticed hereinbefore, the defendant in the written statement admitted purchase of 32 Kanals 14 Marlas land through the impugned sale deed. The plaintiffs deposited the 1/5th pre-emption money accordingly by calculating proportionate sale price for 6 Kanals 10 Marlas land. Mutation Exhibit D-11 cannot override the sale deed. Sale deed reveals that the sale was of 32 Kanals 14 Marlas land and not of 21 Kanals 15 Marlas land. Even otherwise, this contention is not only beyond the pleadings but also contrary to the pleadings. It is the admitted case of the parties that the sale was of 32 Kanals 14 Marlas land. Therefore, it does not lie in the mouth of defendant-appellant that the sale was of 21 Kanal 15 Marlas land. It is thus manifest that there was no deficiency in the amount of 1/5th money deposited by the plaintiffs. Trial court REGULAR SECOND APPEAL No.357 OF 2010 (O&M) -4- adopted erroneous and perverse approach which has been rightly set aside by the lower appellate court. There is no illegality, infirmity or perversity in the impugned judgment of the lower appellate court on this aspect. Learned counsel for the appellants also contended that Sheo Lal plaintiff No.1, while appearing as PW-1, stated that they did not have sufficient funds when the suit land was sold. However this contention does not help the appellants because Sheo Lal has also stated that the vendor instead of selling the land to the plaintiffs sold it to the defendant. After the sale, the plaintiffs filed the pre-emption suit. No plea was even taken by the defendant in the written statement that the suit land had been offered to the plaintiffs and they refused to purchase it, nor there is any evidence on record to depict that the plaintiffs refused to purchase the suit land. Consequently, the aforesaid contention cannot be accepted to non-suit the plaintiffs. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. On the contrary, in view of the admitted factual possession, suit of the plaintiffs has been rightly decreed by the lower appellate court. The instant appeal is, therefore, dismissed. (L. N. MITTAL) JUDGE 17.01.2011 'raj'