HARI SINGH Vs. KALLU

JUDGEMENT

(1.) This is a vendee's appeal in a preemption case. The property in the suit is situate in mauza Mathurapur and is admittedly governed by the custom of pre-emption. The case of the plaintiffs was that they were co-sharers in holding No 2 of the said village in which the land, sought to be pre empted, was situate, and that they had, for that reason, a preferential right of purchase and pre-emption as against defendants 1 to 11. Their case was that defendants 12 to 16, who are the vendors in this case, had sold the property by two deeds, one dated 22-0-1943, and the other dated 77.1943, to defendants 1 to 11, who are strangers, without their knowledge. They pleaded that the deed of 22-6-1941 had been fictitiously described as a deed of gift in respect of 10 biswas of land. It was, in point of fact, part of one and the same transaction. What the vendors had according to the plaintiffs done was to sell the entire land, including the 10 biswas of land, in respect of which they bad executed the deed of gift, to the defendants vendees for a total sum of Rs. 23,000 and had given to the first deed the garb of a deed of gift in order to defeat the right of the plaintiffs to preempt the property.

(2.) The suit was contested by the defendant-vendees. Separate written statements were filed by defendants 1 to 9 and 11 who were the vendees in the case and defendants 12 to 16. The line taken in both of them was practically the same. Shortly put, their defence was that the deeds dated 22-6-1943 and 7-7-1943 represented two independent transactions. The first of them was a deed of gift in respect of 10 biswas of land. The result of this deed was that the defendant vendees who were strangers became co-sharers in the khewat in which the property which was subsequently purchased by the defendant-vendees by the deed dated 7-7-1943 lay. It was, for that reason, not open to the plaintiffs to claim any right of pre-emption. It was also pleaded that the plaintiffs had been offered to purchase the property in salt, that they had refused be do so and that they were, therefore, estopped from claiming it.

(3.) On these pleadings, the two important issues, apart from the one which related to the general relief, framed by the trial Court were :