RSA No. 1268 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1268 of 1985 Date of decision: 14.9.2011 Jaibir and Others Appellants v Diwan Singh and Another Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Rajat Panjeta,Advocate for the appellants None for the respondents .... JITENDRA CHAUHAN,J. This appeal has been filed by the appellants-vendees against the judgment and decree dated 13.12.1984, passed by the Additional District Judge (II) Rohtak. The brief facts of the case are that Ram Kishore was the owner of the ½ share land measuring 36 kanals alongwith his brother Diwan Singh-plaintiff, situated in the revenue estate of Kulasi, Tehsil Bahadurgarh, District Bhiwani. He sold his share to Jaibir and others-vendees vide sale deed on 3.6.1981. Diwan Singh, brother of Ram Kishore filed a suit for possession by way of pre-emption claiming that he has superior right of pre- emption being the brother/co-sharer of the vendor. It was alleged that actually sale consideration of Rs. 35,000/- was paid but in order to scare away the right of plaintiff, an exaggerated sale consideration of Rs. 49,000/- has been shown to be paid. Suit was contested by the defendants-vendees. From the pleadings of the parties, the following issues were raised:- 1. Whether the plaintiff has superior right of pre- RSA No. 1268 of 1985 2 emption as alleged? OPP. 2. Whether sale price was paid and fixed in good faith? OPD 3. If Issue No.2 is not proved what was the marked price of the suit land at the time of sale? OPP 4. Whether vendees are entitled to stamp and registration charges in addition to the sale price?OPD 5. Whether plaintiff has not locus standi to file the present suit? OPD 6. Whether vendees are entitled to any improvement charges if so to what amount? OPD 7. Relief While dealing with material Issue ( No.2), the Ld. Trial court observed that the vendees have established that they have purchased the suit land for a consideration of Rs. 49,000/- out of which Rs. 22,000/- was paid by them at the time of registration of the sale deed. Rs. 14,000/- was paid in advance and Rs. 13,000/- was adjusted towards sale consideration being mortgage money. In view of decision on Issue No.2, Issue No.3 became redundant. While dealing with Issue No.4, it was observed that undisputably vendees incurred an expenditure of Rs. 6125/- on purchase of stamps and Rs. 500/- as registration fee. The vendees were therefore held entitled to this amount. In view of the findings of the Ld. Trial Court, the plaintiff was succeeded and decree for possession of the suit land by way of pre-emption was ordered to be passed in his favour and against the vendees provided that the plaintiff would deposit an amount of Rs. 55625/- (Rs. 49000/- sale price; Rs. 6125 as stamp charges and Rs. 500 as registration RSA No. 1268 of 1985 3 charges) after deducting 1/5th pre-empting money already deposited by them on or before 30.4.1984 for making payment to the vendees. Aggrieved against the decree passed by the Ld. Trial Court, the plaintiff-Diwan Singh preferred an appeal before the Ist Appellate Court. The Ld. Ist Appellate Court, after going into the evidence produced on record, came to the conclusion that Ram Kishore, vendor did not come in the witness box to support that he received sale consideration of Rs. 49,000/- from the vendees. As per the Appellate Court, an exaggerated amount of Rs. 14,000/- was incorporated in the sale deed to brisk away the right of Diwan Singh, brother of the vendor. From the perusal of the sale deed, it would be seen that Rs. 22,000/- was paid before the Sub Registrar, Rs. 13,000/- was left with the vendees to pay the mortgage money. The dispute is with regard to Rs. 14,000/- which were allegedly paid to the vendor, but this fact has not been proved by the vendees, as the onus to prove the good faith of the transaction was on them. The Ld. Appellate Court disbelieved the testimonies of the witnesses examined by the defendants Jaibir, DW-1, Rattan, DW-2 and Lakhi Ram, DW-3. The Ld. Appellate Court set aside the findings of Ld. Trial Court on Issue Nos. 2 & 3. Aggrieved against the same, the appellants- vendees have preferred this appeal. Learned counsel for the appellants submitted that the Ld. Appellate Court set aside the findings of learned trial court on wrong premises. He further submitted that Ld. Trial Court rightly observed that the payment of Rs.49000/- was paid by the vendees to the vendor. I have heard the learned counsel for the appellants and perused the record. RSA No. 1268 of 1985 4 The Ld.Trial Court while deciding Issue No.2 in favour of the defendants (appellants before this Court), observed as under:- “6. Jaibir vendee/defendant has testified that the suit land was purchased by them for a consideration of Rs. 49,000/-. An amount of Rs. 22000/- was paid in the presence of Sub Registrar at the time of registration of sale deed. An amount of Rs. 14,000/- was paid in advance at the time of agreement, and suit land was mortgaged with Muni Ram etc. for a consideration of Rs. 13,000/-. This mortgage money was also adjusted towards the sale price. He has also stated that they have got the suit land re-deemed and a mutation to this effect has also been sanctioned. Rattan Singh D.W 2 has also stated that an amount of Rs. 22,000/- was paid at the time of registration of the sale deed before Sub Registrar and Rs. 14,000/- was paid in advance. Jagdish Chander P.W. 3 has admitted in his examination in chief that an amount of Rs. 14,000/- was received by vendor in advance. The payment of Rs. 22,000/- at the time of registration of the sale deed and adjustment of Rs. 13,000/- towards sale price being mortgage money has not been disputed. There is no reason to disbelieve the statement of Jagdish Chander P.W 3 who has been examined by the plaintiff himself. I am, therefore, of the view that vendees/defendants have proved that the suit land was purchased by them for a consideration of Rs. 49,000/- out of which an amount of Rs.22,000/- was paid by them at the time of registration of the sale deed. An amount of Rs. 14,000/- in RSA No. 1268 of 1985 5 advance and an amount of Rs.13,000/- was adjusted towards sale consideration being mortgage money. This issue is accordingly decided.” While setting aside the findings of the Ld. Trial Court, the Ld. Appellate Court observed as under:- “10. I would have considered the desirability of remanding the case for fresh decision because of erroneous approach by the trial court on Issue No.3. The parties have led some evidence with regard to the market value of the land in suit. The defendants have relied upon a certified copy of the sale-deed dated 27.5.1978 Ex. D.X alleged to have been executed by vendor Dharam Singh vide Sale Deed vide which he sold his land measuring 8 kanals 13 marlas to Maha Singh for a consideration of Rs. 19500/-. Even if this be taken as the market value, although the nature and quality of the land sold by him is not known and its proximity to the village is also not established, even then the market value cannot be said to be more than about 18000/- per acre. Ram Kishore has sold ½ share in the land measuring 36 kanals. In other words, he sold 18 kanals and the market value of this land cannot be more than 18000/-per acre. The rate of the land sold by Ram Kishore is worked out to round about Rs.40,000/-while according to the appellant the sale price was fixed at Rs. 35,000/- which cannot in any case said to be less as ½ share was sold and the land was still to be partitioned. 11. As a result of the foregoing discussion the findings of RSA No. 1268 of 1985 6 the learned trial court on Issues No.2 & 3 will have to be set aside as it is held that the sale consideration of Rs. 35,000/- was fixed in good faith and an amount of Rs. 14,000/- was exaggerately incorporated in the sale deed. The amount has never been paid to the vendor. I, therefore, fix the market value of the land at Rs. 35,000/- and the same was actually paid and fixed. A perusal of the above shows that the Ld. Trial Court rightly relied upon the statement of Jagdish Chand PW 3, who had admitted that Rs. 14,000/- was paid by the vendees to the vendors, whereas the Ld. Appellate Court fixed the market value of the land at Rs. 35,000/- and observed that the said amount was actually paid. The findings of the Learned First Appellate Court are erroneous and contrary to the record and are reversed. In view of the findings recorded by the Ld.Trial Court, on Issue No.2, it is ordered that the total expenditure incurred on the transaction was Rs. 55625/- and appellants are entitled to recover Rs. 14000/- from Diwan Singh, plaintiff. The said amount is to be paid within three months from the date of receipt of certified copy of this order, failing which, the same shall carry interest @ 6.5% per annum from the date of filing of the appeal till its realization. The appeal is accordingly partly allowed. ( JITENDRA CHAUHAN) 14.9.2011 JUDGE MS