JASOD SINGH AND OTHERS Vs. TARA DATT PANT

JUDGEMENT

(1.) This appeal was referred to a Bench by Mr. Justice Bishambhar Dayal for, in his view, the point that was raised for determination of this case presented some difficulty.

(2.) The suit out of which this appeal arose was one for pre-emption filed by the respondent Jaya Datt Pant in respect of a sale which had been made by Prem Ballabh on July 7, 1952, of a certain quantity of proprietary land in Phantkhata 47 measuring 12 Nalis to the defendants for an ostensible consideration of Rs. 1,500. The plaintiff claimed pre-emption on the ground that he had a right of pre-emption and that he as a relation, related to the vendor within the third degree, claimed pre-emption of the land. The plaintiff alleged that the real consideration was much less than the ostensible consideration. The defence to the suit, in main, was that the pre-emptor-plaintiff though related to the vendor within the third degree could not claim pre-emption inasmuch as, firstly, that the land which was sold and was to be pre-empted was non-ancestral property, and secondly, that the pre-emptor-plaintiff was a non-resident.

(3.) The trial court tried the several issues that were raised but all of them are not relevant for our purposes, for all we need notice in this case is that issue which related to the plaintiff's right of pre-emption in respect of the vended property. The Trial court dismissed the plaintiff's suit holding that he had no right of pre-emption in respect of the land. There was an appeal against the decision of the learned Munsif and the appellate Judge reversed the learned Munsif on the question of the plaintiff's right in regard to pre-emption. The learend Judge found that the plaintiffs, even though he was a non-resident co-sharer and even if the land was non-ancestral land, had the right of pre-emption. A second appeal was preferred to this Court against the decision of the learned District Judge of Kumaon and that second appeal, as we pointed out at the commencement of this judgment, came up first before Mr. Justice Bishambhar Dayal who referred it to a Bench and that is how the appeal now is before us for disposal.