BHAGWANTI Vs. SHIV DEI

JUDGEMENT

(1.) This second appeal under section 100 of the Code of Civil Procedure prior to the amendment, .has been filed by the legal representatives of the first defendant, who is the vendee. The appeal is directed against the appellate decree of Mr. H. K. S. Malik, then Senior Sub-Judge, dated 6th October, 1972, by which he has allowed the appeal and reversing the decree of the court of first instance, dated 12th April, 1971, finally decreed the suit of the plaintiff respondent for recovery of possession of the land in dispute by pre-emption.

(2.) In this appeal, Chandi Ram, respondent No. 2 was the vendor of the land, who was defendant No. 2 in the suit and is not represented. The contesting respondent is Smt. Shiv Dei, plaintiff in the suit, respondent No. 1 herein and she is the wife of respondent No. 2. The contesting defendant, of course, is the appellant, vendee. The land in dispute measures about 8 biswas or 414 sq. yds., in plot No. 63, Khasra No. 140, village Mubarakpur Kotla. This village is now known as New Delhi South Extension Part 1. On 12th April, 1956, respondent No. 2 sold the aforesaid plot of land to the appellant's predecessor, Topan Dass, defendant No. 1 under sale deed (Ex. P1), for a sum of Rs. 5000.00 . The sale deed dt. 12-4-1956 had been presented for registration, but was registered on 21st May, 1957. On 20th May, 1958, the plaintiff instituted the suit giving rise to this appeal, for pre-empting the same under clause (a) of section 15 of the Punjab Pre-emption Act, 1 of 1913, as it stood amended prior to 1960 (hereinafter referred to as the Act), in her capacity as a person entitled to succeed to the land on the assumption of the death of the bhumidar. The suit was contested by the contesting defendant, and on the pleadings of the parties, the following issues were framed :

(3.) Mr. Bhatia appearing to support the second appeal has contended that the lower appellate court has erred in reversing the finding of the court of first instance and that the land in dispute was not agricultural and as such the plaintiff respondent had no right to pre-empt the same, and lastly the suit was barred by time and the lower appellate court has fallen into an error in holding it within time.