FULJARI LAL Vs. RAM SARUP

JUDGEMENT

(1.) THESE two appeals arise out of a pre -emption suit in which a decree for pre -emption in respect of certain lands for Rs. 9115/ - has been passed by the Court of District Judge Bhind in favour of the Plaintiff Fuljarilal. The Appeal No. 29 of 2005 is by the Plaintiff and is concerned solely with the question of the amount for which the Plaintiff Fuljari Lal is entitled to exercise his right for pre -emption. The other appeal is by the Defendant Ram Swarup with regard to the costs of the suit decreed against him. On 30 -5 -46, one Bhando Lal sold a piece of land situated in Bhind to Ram Swarup by a registered sale deed which contained a recital of a consideration of Rs. 9115/ -. After the sale of the house by Bhando Lal to Ram Swarup, the Plaintiff Fuljari Lal brought a suit for pre -emption alleging that the sale was really for Rs. 6000/ -, the amount which was actually paid before the Registrar and that the recital in the sale deed that Bhando Lal had received Rs. 3115/ - from Ram Swarup on the previous day was fictitious. The Plaintiff claimed.(sic) to be entitled to exercise his right of pre -emption in respect of the land for a sum of Rs. 6000/ - only. The Defendant asserted in his written statement that the sale was in fact for Rs. 9115/ -. The, lower Court found that the consideration for the sale was Rs. 9115/ - and that the Plaintiff had the right to pre -empt the property for this amount.

(2.) IN the appeal preferred by Fuljari Lal, the Appellant prays that the decree of the lower Court be modified by reducing the amount for which the Appellant is entitled to exercise his right of 'pre -emption to Rs. 6000/ -. Under Section 19, Gwalior Pre -emption Act, 1992, if there is no agreement between the parties with regard to the consideration for a pre -emptible sale, the Court has to determine in the first instance whether the amount for which the sale is alleged to have taken place was or was not in fact fixed or paid. This section also casts the onus of proving the fact that the consideration alleged was fixed or actually paid on the vendee. It is only when the Court finds that the alleged consideration was not fixed or paid that the Court has to consider the question of the market price of the property for the purposes of the suit. In the present case, the evidence as to the consideration for which the property was purchased by Ram Swarup from Bhando Lal consists of. (1) the statements of Ram Swarup that the land was sold to him for Rs. 9115/ that on 29 -5 -46 he paid to Bhando Lal Rs. 3115/ - and obtained a receipt from him of the payment and that on the next day he paid Rs. 6000/ - to Bhando Lal before the Registrar and also gave back the receipt for the payment of Rs. 3115/ - to Bhando Lal in the presence of the Registrar, (2) the entries in Ram Swarup's account books of the payment of Rs. 3115/ - to Bhando Lal on 29 -5 -46 and of Rs. 6000/ - on 30 -5 -46, (3) the endorsement on the sale deed that a sum of Rs. 6000/ - was paid before the Registrar and that Bhando Lal admitted before the Registrar that he had already received from Ram Swarup Rs. 3115/ - and had given him a receipt for this amount and this receipt was returned to Bhando Lal on the registration of the sale deed, (4) the depositions of the attesting witnesses to the sale deed, namely Sukhawasi Lal and Lal Chand that Bhando Lal was paid Rs. 6000/ - before the Registrar, and he admitted having already received Rs. 3115/ - and that the receipt for this amount was returned to him on the registration of the deed, (5) and the statement of Mr. Shyam Swarup Johari, the Registrar who gave evidence as to the facts mentioned in the endorsement in the sale deed.

(3.) I am unable to accede to the contention of the learned Counsel for the Appellant. The evidence of Ram Swarup cannot be ruled out of consideration simply because he was a party to the transaction. Likewise the evidence of Sukhwasi Lal and Lal Chand cannot be ignored merely be cause they attested the sale deed. As observed by the Privy Council in - 'Idris v. Jane Skinner AIR 1918 P. C. 154 (A). In cases of this kind, (that is, in cases of preemption) the persons engaged in the transactions and notably the vendors and the vendees are necessarily essential witnesses and in the absence of the contradiction to disregard their testimony because they were interested parties, is to carry the vigilance with which the Court ought always to regard interested testimony beyond all reasonable and trustworthy limits. There appears to be no reason on record in the evidence to impute collusion and dishonesty to any of these witnesses, and as their evidence is wholly unanswered it must in their Lordships' opinion prevail.