RSA NO.2701 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT HANDIGARH RSA NO.2701 of 1986 Date of decision:28.4.2011 Smt. Sunheri Devi …Defendant/Appellant Versus Jaswant Singh through his LRs …Plaintiff/Respondent(s) CORAM: HON’BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Amit Jain, Advocate and Mr.Pushagra, Advocate, for the appellant. None for the respondent. -.- JITENDRA CHAUHAN, J The present appeal is directed against the judgment and decree dated 13.6.1986, passed by the learned District Judge, Kurukshetra, whereby the appeal of the defendant was dismissed and the judgment and decree dated 26.11.1985, passed by the learned trial Court was maintained. The brief facts of the case are that the suit land, as mentioned in para 1 of the plaint, was sold by Manbhari Devi and others to the vendee/defendant Sunheri Devi for a consideration of Rs.23,000/- vide registered sale deed dated 15.9.1983. The plaintiff averred that the sale was made without his notice and knowledge as he has superior right to pre-empt the sale on the ground of his being co-sharer in the land out of which the suit land stood sold, whereas the defendant/appellant was a stranger. The suit was contested by the defendant/appellant on the ground that the plaintiff has got no preferential right to pre-empt the sale as RSA NO.2701 of 1986 2 she herself was the co-sharer in the Khewat. It was also pleaded that the alleged sale was effected by a female, which falls under Section 15(2) of the Punjab Pre-emption Act, therefore, the plaintiff/co-sharer did not have any right to pre-empt the sale. From the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff has got superior right to pre-empt the impugned sale? OPP 2. Whether the plaintiff has no locus standi to file the present suit? OPD 3. Whether the suit is barred by limitation? OPD 4. Whether the vendee-defendants are entitled to stamps and registration charges over and above the sale consideration? OPD 5. Whether the defendant is also the co-sharers in the same khewat? OPD 6. Relief. The learned trial Court decided the issue No. 1 and 5 holding that Jaswant Singh, plaintiff had a superior right to pre-empt the sale and that Sunheri Devi, defendant, was not a co-sharer in the joint khewat. The other issues were also decided in favour of plaintiff. After considering the entire evidence, the learned trial Court decreed the suit of the plaintiff. Feeling aggrieved by the judgment and decree dated 26.11.1985 of the learned trial Court, the defendant preferred an appeal, which was dismissed by the Ist Appellate Court. RSA NO.2701 of 1986 3 Hence the present appeal, which was admitted on 20.11.1986. Learned counsel for the appellant has submitted that the appellant earlier as well purchased a share from the same joint khewat, which was challenged by the plaintiff by filing a suit for pre-emption challenging the sale. The trial Court dismissed the suit of the plaintiff vide judgment, Ex. D-1 and decree, Ex. D-2. Again, the appeal filed by the defendant/appellant was dismissed on the same ground. Thus, the learned courts below erred in holding that the appellant has not become co-sharer of the suit land. It has also been submitted that the courts below erred in not taking into consideration the judgment, Exhibit D-1, on the ground that the appeal preferred by the pre-emptor against, Ex.D1, was pending before the learned District Judge. However, the learned appellate Court committed a grave error of law in not taking into consideration the fact that the appeal filed by the pre-emptor against the appellant in the previous suit had already been dismissed. I have heard the learned counsel for the appellant and perused the record with their able assistance. The counsel for the appellant submits that the main law point involved in the appeal is that “whether the findings of both the courts below are erroneous and perverse”. From the perusal of the impugned judgments and decrees as well as record, this Court feels that the learned first appellate has rightly held that except certified copies of the judgment, Exhibit D-1, and decree, Exhibit D-2, passed in another suit between the same parties, there is no evidence, which establishes the fact that the defendant was a co-sharer in RSA NO.2701 of 1986 4 the suit land. However, the defendant/appellant took the stand that as per Exhibits D1 and D2, it is established that the defendant/appellant had become a co-sharer in the suit land. It is settled law that the statements of facts in previous judgment cannot be used as evidence in subsequent case to decide the issues. It is established that the plaintiff/respondent was a co-sharer in the joint khewat at the time of sale-deed, Ex. P1 and the defendant/appellant failed to show any evidence to rebut the statement of plaintiff, PW1. Perusal of jamabandi, Exhibit P.2 also proves that Jaswant Singh, plaintiff, had a superior right to preempt the sale being a co-sharer. There is no rebuttal to that effect. In view of the findings recorded by learned courts below after elaborate consideration on the factual aspects, in my opinion, no substantive question of law arises warranting interference with the impugned judgments and decrees. There is no scope of interference with the concurrent findings of facts arrived at by both the courts below. The judgments of both the courts below are not perverse. In Madvan Nair V. Bhaskar Pillai, (2005) 10, SCC 533, Harjeet Singh v. Amrik Singh, (2005) 12 S.C.C. 270, H.P. Pyareja v. Dasappa, AIR 2006 SC 1144: (2006) 2 SCC 496, and Gurdev Kaur and others v. Kaki and others, J.T. 2006(5) S.C. 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial RSA NO.2701 of 1986 5 on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of Courts below, is confined only to the hearing of substantial questions of law. Accordingly, the present appeal is dismissed. The judgment and decree of the learned first appellate Court are maintained. 28.4.2011 (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter? Yes / No