GURDIAL SINGH Vs. MAM CHAND

JUDGEMENT

(1.) The Plaintiffs are in second appeal against judgment and decree of the Courts below by which their suit for possession by way of pre-emption on the basis of being tenants over the suit land, has been dismissed.

(2.) The case set up by the Plaintiffs is that Defendant No. 7 as co-sharer sold agricultural land measuring 12 Kanals 08 marlas, comprised in Khewat No. 49, khatoni Nos. 76 and 87, Rect. No. 19, Killa No. 19/2(0-3), 21(0-17), 22(6-18), 23/1(2-6), Rect. No. 42 Killa No. 3/1/1(2-4) out of total land measuring 37 Kanals 09 Marias comprised in Khewat No. 49, 605 and 221 as per jamabandi for the year 1984-85, to Defendant Nos. 1 to 5 vide registered sale deed dated 05.04.1990 and that Defendant No. 7 executed lease deed in favor of Defendant No. 6 to the extent of 1/3rd share of land measuring 37 Kanals 09 Marias for a period of 99 years from 30.03.1990 to 29.03.2089 vide lease deed dated 30.03.1990 for a consideration of Rs. 10,000/- and possession of the suit land is shown to have been delivered to the lessee, whereas Defendant No. 7 was not in possession on 30.03.1990 or thereafter, therefore, there is no question of delivery of possession by him to Defendant No. 6 and the Plaintiffs, being in possession as tenants over the suit land under the vendor, had a superior right of pre-emption which was exercised by way of the present suit.

(3.) Initially, the Defendants were proceeded against ex-parte. Gurdial Singh, Plaintiff No. 1 appeared as PW1 in his ex-parte evidence and the suit was decreed ex-parte on 25.07.1992. The ex-parte decree was challenged by Defendant No. 5 by moving an application which was dismissed by the Trial Court on 05.01.2001. However, Civil Appeal No. 72 of 2001 against the said order was allowed on 11.05.2005 and ex-parte judgment and decree of the Trial Court dated 25.07.1992 was set aside by the lower Appellate Court and the Trial Court was directed to decide the suit afresh. In the second round, Defendant No. 2 filed his written statement, in which, besides taking preliminary objections, it was alleged that the land in dispute is situated within municipal limits of Pehowa and is not pre-emptible. In the written statement of Defendant No. 5, it was alleged that the lease deed dated 30.03.1990 was executed fictitiously and the vendor was in possession of the suit property at the time of the execution of the sale deed and the possession was delivered to the vendees. It was also alleged that the Plaintiffs were never tenants under the vendor. Defendant No. 6 filed his separate written statement in which objection was raised that no pre-emption could be sought on behalf of the minor and the suit was also time barred. It was pleaded that Plaintiff Nos. 19 to 21 were minors. Defendant Nos. 3, 4 and 7 were proceeded against ex-parte vide order dated 19.09.2005 and 20.10.2005 respectively whereas Defendant Nos. 8 to 26 were given up being unnecessary. The Plaintiff filed replication only to the written statement filed by Defendant No. 5 and on the pleadings of the parties, the Trial Court struck following issues on 14.11.2005: