JASMER Vs. NIRMAL

JUDGEMENT

(1.) (Oral)

(2.) THIS is second appeal by legal representatives of original plaintiff Jagga alias Jagat Ram since deceased, having remained unsuccessful in the trial court but partly successful in the lower appellate court. Jagga alias Jagat Ram filed pre-emption suit to pre-empt sale of suit land measuring 5 kanals 18 marlas made by Inder Nath in favour of defendants/respondents no. 1 and 2 vide sale deed dated 27.3.1996 on the ground that the plaintiff is tenant over the suit land. Vendees-defendants no. 1 and 2 resisted the suit by filing separate written statements and denied the tenancy of the plaintiff over the suit land. It was pleaded that defendant no. 1 belongs to Scheduled caste being of 'Pasi' caste and therefore, the sale is not pre-emptible. Various other pleas were also raised. Learned Civil Judge (Junior Division), Ambala City vide judgment and decree dated 8.12.2007 dismissed the plaintiff's suit. It was held that the plaintiff and his brothers were proved to be tenants over the suit land but the sale was not pre-emptible as defendant no. 1 vendee belongs to Scheduled caste. First appeal preferred by the plaintiff through legal representatives has been allowed partly by learned Additional District Judge, Ambala vide judgment and decree dated 6.5.2010 and sale to the extent of share of defendant no. 2 vendee has been ordered to be pre-empted in favour of the plaintiff. However, suit regarding share of defendant no. 1 remains dismissed. Feeling aggrieved, legal representatives of the plaintiff have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants contended that defendant no. 1 is not proved to be of Scheduled caste. The contention cannot be accepted. Defendant no. 1 herself appeared in the witness box and stated that she belongs to Scheduled caste. Defendant no. 1 has also examined Subash Chand DW1 from the office of Sub Divisional Magistrate, Ambala with relevant record and he proved the certificate Ex. D1 issued by the said office that defendant no. 1 belongs to Scheduled caste. On the basis of this evidence, both the courts below have come to concurrent finding that defendant no. 1 is proved to be of Scheduled caste and therefore, sale of her share is not pre-emptible. Learned counsel for the appellants contended that defendant no. 1 did not produce original certificate and rather produced photostat copy Ex. D1 and therefore, it is not proved that she belongs to Scheduled caste. The contention cannot be accepted because defendant no. 1 has also examined official from the office of Sub Divisional Magistrate, Ambala who had issued the said certificate. The official brought the record and proved the issuance of said certificate certifying that defendant no. 1 belongs to Scheduled caste. On the other hand, the plaintiff has not led any evidence whatsoever to depict that defendant no. 1 does not belong to 'Pasi' caste which is Scheduled caste. Un-rebutted evidence of defendant no. 1 is sufficient to prove that defendant no. 1 belongs to Scheduled caste. Concurrent finding of fact in this regard recorded by the courts below is based on appreciation of evidence and is supported by cogent reasons and therefore, no question of law much less substantial question of law arises for determination in this appeal regarding the said finding. For the reasons aforesaid, I find no merit in the instant second appeal which is accordingly dismissed.