RSA No.112 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.112 of 1993 Date of Decision: 27.04.2009 Ram Mehar ..Appellant Vs. Sis Ram ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.S.S.Godara, Advocate, for the appellant. Mr.M.K.Yadav, Advocate, for Mr.J.V.Yadav, Advocate, for the respondent. --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 7.11.1992 passed by learned courts below, vide which suit filed by the plaintiff-respondent for possession by way of pre-emption stands decreed. Plaintiff/respondent brought a suit for possession by way of pre-emption on the pleadings that Jai Parkash son of Abhey Singh co- sharer/vendor sold his share of land in favour of defendant vide sale deed RSA No.112 of 1993 2 executed and registered on 11.11.1986 for consideration of Rs.34,000/-. The plaintiff claimed that the sale was effected secretly and without the knowledge of and notice to the plaintiff. The plaintiff sought possession by pre-emption claiming himself to be co-sharer in pursuance to the sale deed executed and registered on 26.4.1984 by one Chhida Singh who was recorded as co-sharer in the jamabandi for the year 1982-83 in Khewat No.130 and Khata No.144 of the said jamabandi. He claimed superior right of pre-emption against the appellant/defendant who was said to be utter stranger and, in no way, connected with the suit land. On notice, suit was contested by the defendant/appellant primarily on the ground that the property between Chhida and Jai Parkash has been partitioned by way of private partition and therefore, the plaintiff/respondent did not have status of a co-sharer. In the replication the averments made in the plaint were reiterated and that of written statement were denied. On the pleadings of the parties learned trial court was pleased to frame the following issues:- “1. Whether the plaintiff has superior right of preemption qua the land in dispute as alleged? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit is barred by limitation? OPD 4. Whether the plaintiff has no locus standi to file the present suit as alleged in preliminary objection No.3? OPD RSA No.112 of 1993 3 5. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 6. Whether the 1/5th preemption money was was not deposited within time? OPD 7. Whether the defendant has incurred expenses of Rs.15,000/- on the improvement of the suit land if so to what effect? OPD 8. Relief.” In support of his case the plaintiff produced in evidence Sis Ram as PW 1, whereas defendant produced Ram Mehar DW 1, Jugti Ram DW 2, Ishwar DW 3, Chiterpal DW 4, Madan DW 5, Kishori Lal DW 6, Sat Narain DW 7 and S.K.Yadav, Advocate as DW 8. On Additional issue Jai Parkash was examined as DW 9 and in rebuttal evidence PW 1 Sis Ram was recalled for further examination. On issue No.1 learned trial court on appreciation of evidence had been pleased to hold that as Chhida and Jai Parkash were co-sharers and owners in possession of the suit land, that the plaintiff stepped in the shoes of Chhida on execution of sale deed Ex.P.2, therefore he became co- sharer. The learned court also held that it was for Jai Parkash to have claimed the right of pre-emption. Having not done so the status of the plaintiff became that of a co-sharer, therefore, he had a superior right of pre- emption. Issue No.2 was decided against the plaintiff and in favour of the defendant, whereas issues No.3 and 4 were not pressed. On issue No.5 learned trial court did not believe the evidence RSA No.112 of 1993 4 led by the defendant-appellant to the effect that Jai Parkash had asked Sis Ram as to whether he wanted to buy the suit land as he was going to sell the same. In the oral evidence it was stated that Sis Ram has declined to buy the land as Jai Parkash was minor. It was claimed that the sale was within the knowledge of the plaintiff/respondent. Plea of the defendant/appellant, therefore, was that the plaintiff was estopped by his conduct to enforce his right of pre-emption. However, this plea was rejected by recording a finding that ingredients of estoppel were not fulfilled as the defendant/appellant had failed to prove that the plaintiff/respondent had actively participated and played a role in getting the deal or it was proved that he was connected with the transaction. Issue No.6 was not pressed. On issue No.7 it was held that the defendant incurred a sum of Rs.8000/- towards the improvement of the suit land. Consequently, the suit was decreed on depositing of Rs.34,000/- plus stamp and registration charges plus Rs.8000/- towards improvement of land less 1/5th pre-emption money already deposited. In appeal finding of the learned trial court have been affirmed. Learned counsel appearing on behalf of the appellant submits that this appeal raises the following substantial question of law for consideration by this court:- 1. Whether the judgment and decree passed by the learned courts below in recording findings against the defendant/appellant suffers from misreading of evidence on record and therefore, is perverse? RSA No.112 of 1993 5 In support of substantial question of law raised learned counsel for the appellant contends that in view of the admission made by the plaintiff that sale was made, after asking him. Learned courts below committed an error in deciding issue No.5 in favour of the plaintiff/respondent and against the appellant-defendant. However, I find no force in this contention. Under sections 19 and 20 of the Punjab Pre-emption Act, (for short the Act) notice has to be issued making an offer, and once section 19 of the Act envisages issuance of notice, oral evidence could not be substituted with statutory requirement. Even otherwise, the oral evidence cannot be read in isolation from the other evidence on record. Consequently, it cannot be said that there is any error in deciding issue No.5 by learned courts below. Learned courts below rightly held on issue No.5 that principle of estoppel was not applicable to the facts of the present case, on appreciation of evidence. The concurrent findings cannot be said to be outcome of misreading of evidence as contended. The substantial question of law, therefore, is answered against the defendant-appellant and in favour of the plaintiff-respondent. In view of answer to the substantial question of law against the defendant/appellant, I find no merit in this appeal which is accordingly ordered to be dismissed, but with no order as to costs. 27.04.2009 (Vinod K.Sharma) rp Judge