Regular Second Appeal No. 3143 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3143 of 2010 Date of decision : October 14, 2010 Prem Chand and others ....Appellants versus Harpal Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Rajesh Gupta, Advocate, for the appellants L.N. Mittal, J. (Oral) This is second appeal by legal representatives of original plaintiff Chamela Ram since deceased, after having remained unsuccessful in both the courts below. Chamela Ram filed suit for pre-emption of 4 kanals land in suit being eastern half of 8 kanals land of khasra no. 93//9, sold by Baseshar Rani etc. to defendants vide sale dated 3.10.2000. The plaintiff claimed superior right of pre-emption on the ground of tenancy over the suit land. The defendants resisted the suit on various grounds. It was, inter alia, pleaded that at the time of sale, plaintiff had himself surrendered possession and tenancy rights of the suit land in favour of the defendants. The plaintiff actively participated in the sale transaction and even attested Regular Second Appeal No. 3143 of 2010 -2- the sale deed as witness. In fact, the defendants were purchasing entire 8 kanals but since plaintiff was in possession thereof as tenant, half of it i.e. 4 kanals was sold to the plaintiff on the same day and the remaining 4 kanals was sold to the defendants. The plaintiff also affirmed affidavit on 3.10.2000 (date of sale deed) affirming that he handed over possession of the suit land to the defendants-vendees. Defendants pleaded that since then they are in possession of the suit land. Learned Additional Civil Judge (Senior Division), Yamuna Nagar at Jagadhri vide judgment and decree dated 17.12.2008 dismissed plaintiff's suit. First appeal preferred by legal representatives of the plaintiff has been dismissed by learned Additional District Judge, Yamuna Nagar at Jagadhri vide judgment and decree dated 28.5.2010. Feeling aggrieved, legal representatives of the plaintiff have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. It is undisputed that same vendor Baseshar Rani etc. executed two sale deeds on 3.10.2000 i.e. one sale deed regarding eastern 4 kanals land in suit in favour of the defendants and the other sale deed regarding 4 kanals western land in favour of the plaintiff Chamela Ram. Sale deed in favour of the defendants was also thumb marked by Chamela Ram as witness. The defendants have also proved affidavit Ex. D4 affirmed by Chamela Ram plaintiff on 3.10.2000 itself thereby surrendering possession of suit land measuring 4 kanals in favour of the defendants. It is undisputed that prior to impugned sale, Chamela Ram Regular Second Appeal No. 3143 of 2010 -3- plaintiff was in possession of the entire 8 kanals land as tenant. However, in order to succeed in pre-emption suit, the plaintiff has to establish his superior right of pre-emption i.e. his tenancy at all the three stages i.e. at the time of sale deed, at the time of filing of pre-emption suit and also at the time of decree of the trial court. In the instant case, however, the plaintiff was tenant over the suit land till the date of the sale deed. However, on the date of sale deed itself, the plaintiff relinquished possession over the suit land in favour of vendees defendants. In this regard it has to be noticed that impugned sale deed in favour of defendants has been thumb marked by plaintiff Chamela Ram as witness. In addition, there is affidavit Ex. D4 of the same date affirmed by Chamela Ram plaintiff relinquishing possession of the suit land in favour of defendants. Defendants have examined Kanshi Ram Deed Writer DW1 who not only scribed both the sale deeds but also scribed affidavit Ex. D4 and has proved the same. Shiv Ram Nambardar witness of both the sale deeds and also witness of affidavit Ex. D4 has also been examined. Harpal Singh defendant no. 1 also himself appeared in the witness box. From the statements of all these witnesses, it is established that plaintiff Chamela Ram had relinquished tenancy and possession over suit land measuring 4 kanals. Affidavit Ex. D4 affirmed by plaintiff in this regard has been duly proved by the testimony of the aforesaid three witnesses i.e. Deed Writer Kanshi Ram as DW1, Harpal Singh defendant no. 1 as DW3 and Shiv Ram witness as DW5. The aforesaid affidavit has been attested by Executive Magistrate who was also Tehsildar-cum-Sub Registrar who registered both the sale deeds. In these circumstances, the contention of counsel for the appellant that contents of the affidavits were Regular Second Appeal No. 3143 of 2010 -4- not read over and explained to the deponent-plaintiff cannot be accepted. Judgments of this Court in Madan Lal versus Pushpa, 2009(3) Civil Court Cases 512 and Dalbir Kaur versus Manjit Kaur and others, 2008 (1) RCR (Civil) 729 relied by counsel for the appellants are also not applicable to the facts of the instant case because in this case Kanshi Ram DW1, Harpal Singh DW3 and Shiv Ram DW5 have proved the affidavit affirmed by Chamela Ram plaintiff. Learned counsel for the appellants relying on Ramesh Chander and others versus Budha Singh and another, 2003(3) PLR 840 and Mool Chand and another versus Mani Ram, 1983 PLJ 482 contended that by being witness to the sale deed, the plaintiff-appellant cannot be deprived of his pre-emption right. The contention cannot be accepted. In the instant case plaintiff-appellant by attesting impugned sale deed as witness consented to the sale transaction and therefore, cannot seek to pre-empt the same. In the case of Ramesh Chander (supra) it was not pre-emption suit. It was held that attesting witness can always deny the contents of the document although he may not deny its execution but in the instant case, the plaintiff attested the sale deed as witness and therefore, consented to the sale transaction. In the case of Mool Chand (supra) the plaintiff was witness to sale agreement and was not witness to sale deed. Consequently, the said judgment is also not applicable to the facts of the case in any manner. In any event, the plaintiff did not retain the rights of pre-emption on the date of filing of the suit or on the date of decree of the trial court because he relinquished the possession and tenancy over the suit land in favour of defendants on 3.10.2000, the date of sale deeds itself and affidavit in this regard was also affirmed by the Regular Second Appeal No. 3143 of 2010 -5- plaintiff. Even khasra girdawari was also changed in favour of defendant vide report dated 8.10.2000 Ex. D3 i.e. just five days after the sale deed. Change in khasra girdawari of the suit land in favour of vendees-defendants immediately after the sale deed further corroborates their version as depicted by affidavit Ex. D4 of the plaintiff. It is, thus, manifest that the plaintiff ceased to be in possession of the suit land or tenant thereof on the date of sale deed itself when he relinquished possession and tenancy of the suit land in favour of the vendees. Both the courts below after appreciating evidence have come to concurrent finding against appellants. The said finding is fully justified by the evidence on record and is supported by cogent reasons recorded by both the courts below. Consequently, the said finding cannot be said to be perverse or illegal nor it warrants interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed. ( L.N. Mittal ) October 14, 2010 Judge 'dalbir'