R.S.A. No. 1697 of 1991 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1697 of 1991 (O&M) Date of Decision : 21.4.2009 Ram Chander .......... Appellant Versus Mange Ram & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. V.K. Jain, Sr. Advocate with Mr. Rajeev Sheokand, Advocate for the appellant. Mr. Vinod Kataria, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This order will dispose of R.S.A. Nos. 1697 & 1698 of 1991, titled Ram Chander Versus Mange Ram & others and Sadhu Ram & another Vs. Mange Ram and others, respectively. For the sake of convenience, the facts are being taken from R.S.A. No. 1697 of 1991. This regular second appeal is directed against the judgment and decree dated 23.7.1991 passed by the learned Courts below decreeing the suit for possession by way of pre-emption, filed by the plaintiff / respondent. The plaintiff / respondent filed a suit for pre-emption of R.S.A. No. 1697 of 1991 2 agricultural land measuring 16 Kanals comprised in Khasra Nos. 26/9(8-0), 10(8-0) situated within the revenue estate of village Bhada Khera, Tehsil Hansi, on the pleadings that Jeet Singh son of Mange Ram sold the suit land to defendants No.1 & 2 by way of registered sale deed dated 27.5.1986 for an ostensible sale consideration of Rs. 49,500/- whereas in fact the impugned sale took place for Rs. 19,500/-. The plaintiff claimed that no notice of sale was given to the plaintiff who being co-sharer in Khewat of property in suit land, had a preferential right of pre-emption. The property in suit was said to be under mortgage for Rs. 30,000/- with Balwan etc. sons of Beeru. It was also the case set up by the plaintiff that vendee executed a fictitious lease deed on 27.5.1986 in order to harm the interests of the plaintiff / respondent. It was further the case of the plaintiff, that defendant No.3 was not delivered possession of property as a lessee. The property in suit was already under mortgage with possession with Balwan etc. On the failure of the defendants / appellant to accept the superior right of the pre-emption, of the plaintiff, the suit was filed. The suit was contested by the defendants. Defendant No.4 admitted the claim of the plaintiff. Defendant No.3 took number of preliminary objections regarding cause of action, estoppel, valuation and jurisdiction of the Civil Court to entertain the suit. On merits, the averments made in the plaint were denied. It was R.S.A. No. 1697 of 1991 3 pleaded, that defendant No.4 was competent to lease out the property in suit, and also, that the lease deed dated 27.5.1986 was duly executed. Defendants No.1 & 2 also resisted the suit, by taking a number of preliminary objections as taken by defendant No.3. On merits, the allegations in the plaint were denied. It was pleaded that at the time of execution of the impugned sale deed, the plaintiff / respondent was not present, so there was no need to give him any notice of impugned sale. It was denied that he was co-sharer in the same. However, it was reasserted that the sale was for consideration of Rs. 49,500/-. The factum of mortgage was denied. Lease deed was claimed to be a genuine document. In the replication, the averments made in the plaint were reiterated and that of written statement were denied. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues :- 1. Whether the plaintiff has a superior right of pre- emption, if so, to what effect ? OPP 2. Whether sale price of the land was fixed and paid in good faith, if so, to what effect ? OPP 3. If issue No.2 is not proved, what is the market value of the land in dispute ? OP Parties 4. Whether the alleged lease deed dated 27.5.1986 in favour of defendant No.4 is based on fraud and mis- representation and is a sham transaction and has been done in order to defeat the right of pre-emption ? OPP 5. Whether the plaintiff has no locus-standi to file the suit ? OPD R.S.A. No. 1697 of 1991 4 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct ? OPD 7. Whether the suit is not maintainable in the present form ? OPD 8. Whether the suit is bad for the purposes of Court fee and jurisdiction ? OPD 9. Whether the suit is vague ? OPD 10. Whether the civil Court has no jurisdiction to try the suit ? OPD 11. Whether the suit is time barred ? OPD 12. Whether the suit is liable to be dismissed on the grounds mentioned in preliminary objection No.9 of the written statement, if so, its effect ? OPD 13. Whether the suit is based on fraud ? OPD 14. Whether the plaintiff has not come to the court with clean hands,if so, its effect ? OPD 15. Whether the suit has not been verified according to law ? OPD 16. Whether the defendants are entitled for special costs under Section 35-A C.P.C. ? OPD 17. Whether the defendants have made improvements, if so, whether they are entitled for the improvement charges, if so, how much ? OPD 18. Relief. On appreciation of evidence, the learned Courts below have been pleased to record a finding, that the plaintiff / respondent had a superior right of pre-emption being co-sharer in the land sold. It was also held, that the sale price was fixed and paid in good faith. In view of the finding on issue No.2, no finding was given on issue No.3. The lease deed was held to be fictitious document. R.S.A. No. 1697 of 1991 5 On issue No.5, it was held that plaintiff had locus standi to maintain the suit, as he had superior right of pre-emption. On issue No.6, the learned Courts below have been pleased to hold that though in the oral evidence it has been stated that the plaintiff / respondent was present at the time of execution of the lease deed and the sale deed, however, no such fact can be gathered from the lease deed dated 27.5.1986, as the name of the plaintiff / respondent did not figure in it as attesting witness. It was also held that nothing was brought in evidence, by way of any agreement, to show that the plaintiff / respondent was instrumental in bargaining the property in dispute. It was held that the principle of estoppel could not apply against the plaintiff / respondent. Whereas issues No. 8 to 11 and 13 to 17 were not pressed and, thus, decided against the appellant / defendants. It was held that there was no documentary evidence, showing the presence of the plaintiff / respondent at the time of execution of sale deed or the lease deed. The learned Courts below on appreciation of evidence disbelieved the oral version. Issue No.12 was also decided in favour of the plaintiff and against the defendants. Mr. V.K. Jain, learned senior counsel appearing on behalf of the appellant contends that, appeal raises the following substantial questions of law for consideration :- 1. Whether the suit filed for pre-emption by the R.S.A. No. 1697 of 1991 6 plaintiff / respondent was barred in view of the acquiescence and on the principle of estoppel ? 2. Whether the appellant had preferential right of pre- emption being tenant over the suit property ? In support of the second substantial question of law the learned senior counsel for the appellant contended that the learned Courts below committed an error, in holding the lease deed to be fictitious document, though it was a registered document, under which the property in dispute was leased to the appellant, for a period of 20 years, and that he continued to be in possession thereof even after expiry thereof, by holding over the property, thus, was tenant and had superior right of pre-emption. This contention of the learned counsel for the appellant, cannot be accepted. Firstly, for the reason, that on appreciation of evidence, the learned Courts below have recorded a concurrent finding of fact, holding the lease deed to be a fictitious document, creating no right in favour of the defendant /appellant. Furthermore, for the sake of arguments, even if the lease is held to be genuine document. The lease period had already expired on the date of sale, therefore, the defendant / appellant could not be said to be tenant. In absence of proof of possession, he could be treated to be tenant holding over to claim right of pre-emption. The second substantial question of law, framed, is answered against the appellant / defendant. In support of the first substantial question of law the contention R.S.A. No. 1697 of 1991 7 of the learned counsel for the appellant is that in view of the law laid down by the Hon'ble Oudh Chief Court in the case of Jagannath Pershad and another Vs. Chandi Pershad 93 I.C. 1926 page 640 the principle of acquiescence was to be invoked against a pre-emptor even in absence of written notice. This contention of the learned senior counsel for the appellant deserves to be rejected. The learned Courts below on appreciation of evidence, have disbelieved, that the oral evidence of the witnesses, of the defendant / appellant is to the effect that, the appellant participated in the proceedings of the sale, in absence of any document showing his presence, the finding of fact cannot be reopened in regular second appeal. The learned Courts below held that the presence of the plaintiff / respondent, was not recorded as attesting witness, by way of agreement or document. Even otherwise, except for the oral statement that the plaintiff / respondent was present, there was no evidence on record showing that offer was made to the plaintiff /respondent for the purchase of land, at the agreed price. In view of absence of offer as envisaged under Sections 19 & 20 of the Punjab Pre-emption Act it could not be said that the principle of estoppel would bar the enforcement of right by the plaintiff / respondent as contended. The judgment of the Hon'ble Oudh Chief Court in the case of Jagannath Pershad and another Vs. Chandi Pershad (supra) also cannot R.S.A. No. 1697 of 1991 8 be applied to the facts of the present case firstly for the reason that the Hon'ble Oudh Chief Court was interpreting provisions of Section 10 of the Oudh Laws Act, which is not para-materia, with the Punjab Pre-emption Act 1973, and even on the facts in the case of Jagannath Pershad and another Vs. Chandi Pershad (supra) it was proved by evidence, that offer was, in fact, made to the plaintiff to purchase, however, there was no such evidence, in the present case. The First substantial question of law also is answered against the appellant / defendant. In view of what has been stated above, this appeal being devoid of merit, is ordered to be dismissed, but with no order as to costs. 21.4.2009 ( VINOD K. SHARMA ) 'sp' JUDGE