MAGHAR SINGH ETC Vs. CHET SINGH ETC

JUDGEMENT

(1.) The facts giving rise to this second appeal may be shortly stated. Lekh Singh defendant No. 7 sold the land in dispute to defendants Nos. 1 to 6 on 3rd of February, 1964, for Rs. 4250/-. The plaintiff claimed pre-emption in respect of the transaction on the ground that he was the father's brother of the vendor. The suit was contested by defendants Nos. 1 to 6 who denied that the plaintiff had the right to pre-empt the transaction. On proof of the fact that the plaintiff was father's brother of the vendee, as alleged by him, the suit was decreed by the trial Court. Defendants Nos. 1 to 6 filed an appeal which was dismissed by the Senior Subordinate Judge, Barnala, on the 4th of March, 1966. Before him it was contended on behalf of the vendees-defendants that they should be allowed to produce additional evidence in order to establish that at the time of the sale they were in possession of the land in dispute as tenants under the vendor and that the right of pre-emption of the plaintiff was not superior to theirs. The learned Senior Subordinate Judge refused to allow the production of any additional evidence for the reason that no plea about the vendees-defendants being tenants on the land in dispute under the vendor on the date of the sale had been taken in the written statement and that, therefore, any evidence in support of such a plea would be irrelevant to the dispute between the parties as it had emerged at the trial. The only other point taken at the stage of first appeal was that the trial Court had closed the evidence of the vendees-defendants on insufficient grounds. The learned Senior Subordinate Judge did not find any substance in this point either. It was in these premises that the first appeal filed by the vendees-defendants was dismissed.

(2.) The only contention raised before me is that the lower appellate Court should have allowed the production of additional evidence in support of the plea that the vendees-defendants were tenants under the vendor at the time of the sale and had, therefore, a right of pre-emption superior to that of the plaintiff. The contention is without substance. The evidence sought to be produced by a party to a suit must be relevant to the issues. The plea of tenancy never having been raised either in the written statement filed by the vendees in the trial Court, it could not be regarded as a plea on which the vendees defendants depended for having the plaintiff non-suited. There was thus no occasion for the learned Senior Subordinate Judge to allow any additional evidence. If the vendees-defendants wanted to set up the plea of tenancy, they should have raised it by way of an amendment of their written statement but they never sought any such amendment at the stage of first appeal nor have they sought any before me. No fault can in these circumstances be found with the judgment of the learned Senior Subordinate Judge.

(3.) In the result, the appeal fails and is dismissed but with no order as to costs.