KISHAN LAL Vs. RAM CHANDER

JUDGEMENT

(1.) Jeeta and Badan Singh sold 83 kanals and 7 marlas of land to Ram Chander respondent for a sum of Rs. 4,000/- on August 4, 1964. The appellant, who was the brother of Jeeta and uncle of Badan Singh, brought a suit for pre-emption. It has been contended on behalf of the appellant that respondent No. 1, Ram chander, took up three different pleas to contest this claim at various stages. Originally, he pleaded that since he was a tenant, the suit for pre-emption did not lie against him. On the second occasion, a plea was raised that the registered document, as a matter of fact, was executed to cover a transaction of exchange between the parties. This plea was also given up and later on the plea raised was that as far as Jeeta was concerned, there was a transaction of exchange between him and respondent No. 1. These pleas did not prevail with the learned trail Court which decreed the suit filed by the appellant. An appeal was taken to the learned Additional District Judge, Gurgaon, who held that the transaction of sale between Jeeta and Ram Chander was, in fact, one of exchange. He accordingly dismissed the suit filed by the appellant qua the land alleged to have been sold by jeeta. Kishan Lal has come up in Second Appeal before me.

(2.) The learned counsel for the appellant has argued that under Section 118 of the Transfer of Property Act, a transaction of exchange can be validly entered into by two parties under a registered-deed only provided, of course, the value of the property is more than Rs. 100/-. The argument raised is that the deed Exhibit P-4 executed on August 4, 1964, on the face of it, purports to be a sale-deed and the learned lower appellate Court should not have held that the transaction between Jeeta and Ram Chander, respondent No. 1 was in fact a transaction of exchange.

(3.) I have heard the learned counsel for the parties. Even when a registered document is required for a particular transaction and the document is not registered, the Courts have on occasions looked at such a document for determining the nature of the possession of one party or the other. In suits for pre-emption, questions have often arisen whether a transaction, which purports to be one of exchange, was in fact a transaction of sale or not and the Courts have, after taking into consideration the entire evidence, given a finding about the nature of the document contrary to the one which it purports to be. It is not disputed that the respondents have led evidence to show that Ram Chander, respondent No. 1 had also alienated some land in favour of Jeeta vendor in consideration for the same sale-deed which the latter (Jeeta) signed and executed on August 4, 1964. On this basis, it was open to the learned District Judge to the conclusion that the transaction between these two parties was one of exchange. In any event, such a finding is a pure finding of fact which is not open to challenge in second appeal.