GULSHAN RAI ETC Vs. HANS RAJ ETC

JUDGEMENT

(1.) This is appeal by Gulshan Rai, Subash Chander, Sant Lal and Hakumat Rai defendants against Hans Raj and Ram Saran plaintiffs. It is directed against the judgment of Shri K.C. Grover, Additional District Judge, Karnal dated January 22, 1970, allowing appeal of the plaintiffs and setting aside the judgment of the Sub-Judge 1st Class Panipat dated February 24, 1969 dismissing the suit of the plaintiffs for possession by pre-emption of agricultural land filed against the defendants.

(2.) Agricultural land measuring 95 Karnals and 16 marlas situate in village Suthanawa sold by registered sale deed dated June 1/2, 1966 Ladha Ram in favour of the defendants for Rs. 3000. On June 5, 1967 the plaintiffs filed suit for possession by pre-emption against the defendants alleging that the plaintiffs were sons of Ladha Ram and that the defendants being strangers, the plaintiffs had preferential right of pre-emption. In the written statement filed on behalf of the defendants, it was urged that they were tenants of the land sold and consequently entitled to pre-empt the sale. The trial Court framed the following issues :-

(3.) Shri G.C. Mittal appearing on behalf of the plaintiffs-respondents raised preliminary objection that the finding by the lower appellate Court that the defendants were not the tenants of the land in dispute is a finding of fact and that the same could not be disturbed in second appeal. In reply, Shri Roop Chand Chowdhry appearing for the defendants-appellants contended that finding of fact has been arrived at by the lower appellate Court without looking into the evidence both documentary and oral as adduced by the particle before the trial Court. He stated that on the date of arguments, there was not record of the trial Court before the lower appellate Court and consequently, the observation made by the lower appellate Court in the body of the judgment that the Court had carefully gone through the record is not at all warranted. He contended that as the finding of fact had been arrived at without taking into consideration the contents of the documentary evidence and the oral evidence led in the case such a finding of fact was without application of mind on the part of the lower appellate Court to the material on the record and consequently was no finding of fact.