VIJAY SINGH Vs. TULSI RAM

JUDGEMENT

(1.) -This appeal, by special leave, leaves much to be desired in the matter of pleadings, issues and proof. Nevertheless, we are not inclined to interfere with the dismissal of the second appeal, in limine, by the High Court, challenging the decree of the First Appellate Court in affirmance of the trial Court's decree. The judgment of this Court which merely confirms the High Court's judgment can be abbreviated since elaborate reasoning and discussion are otiose. Therefore, we will be brief although we have heard arguments at great length from counsel on both sides.

(2.) A pre-emption action was brought by the plaintiffs-respondents based on S. 4 of the Punjab Pre-emption Act. 1913 which still prevails in the state of Haryana where the land in dispute is situate. Admittedly there was a registered sale deed executed by Kabul Singh, who is respondent No. 2 before us, purporting to be the absolute owner of the land. If really there was a sale, the action for preemption was entitled to succeed. The contention in defence was that the property was an ancestral property in the hands of Kabul Singh and his sons. There was a custom allegedly prevailing in the locality whereby Kabul Singh, the father, could not alienate the ancestral property without family necessity and since there was no family necessity in this case the sale was void. To buttress up this contention the parties, the vendors and vendees, went through the exercise of getting a collusive decree shortly after the present pre-emption action was instituted. It was a consent decree and a collusive one as held by the courts of fact. We proceed on that footing. We are satisfied that in any case that decree cannot bind the plaintiffs. The substantial contention that the alienation was void because the property was ancestral did not form the subject-matter of any issue nor was any such custom proved in this case. Therefore, it is clear that, on the pleadings as they are, the finding of the Court that there has been a real sale is correct.

(3.) Shri Tarkunde, arguing for the appellant, urged that the evidence on the side of the plaintiffs itself is that the sale was not real and that Kabul Singh continued to be the owner. The evidence of Kabul Singh also is on record that the sale is fictitious. Counsel on both sides have given their explanations and made their comments on the testimony so delivered, but then the basic failure in the case is that the voidness of the sale to the vendees that gave rise to the pre-emption right has not been found and, indeed, has not been the subject-matter in issue. On the other hand, questions like the vendees being tenants of the vendor after the sale, seem to have been gone into. Strictly speaking, they are irrelevant to the decision of the case.