THAKAR SINGH Vs. RAM SINGH

JUDGEMENT

(1.) This is appeal by Thakar Singh and Smt. Mitro, defendants-vendees against Ram Singh, plaintiff-pre-emptor. It is directed against the judgment of Shri Joginder Singh Mander, Senior Subordinate Judge, Hoshiarpur dated December 21, 1964 affirming the judgment of Shri Raj Kumar, Sub-Judge, Garhshankar dated June 4, 1964 decreeing the suit of the plaintiff for possession by pre-emption. The facts giving rise to the appeal are as under :-

(2.) Shri B.S. Khoji appearing on behalf of the appellants has not contested any of the above issues. Before the lower appellate Court, the defendants raised the question that the suit filed by the plaintiff was premature inasmuch as the sale deed having been executed on April 24, 1963 was not registered upto May 6, 1964. It was contended that under Section 21 of the Punjab Pre-emption Act, 1913 , right to sue for possession by pre-emption of the sale arises only if the sale is complete and that the sale deed having not been registered on the date, when the suit was instituted, the sale was not complete and the suit deserved dismissal. The defendants in their written statement specifically pleaded that the suit was premature on this ground. The trial Court, however, did not frame any issue on this point. Joginder Pal, Clerk of the office of the Registrar appeared as D.W. 1. He proved by his statement made on May 6, 1964 that the sale deed executed on April 24, 1963 had not been registered. The lower appellate Court did not agree with the contention although, on the basis of the facts as admitted, it took the view that the point did arise for consideration in spite of the fact that specific issue had not been framed on that point.

(3.) Shri Khoji appearing on behalf of the defendants has argued that the view taken by the lower appellate Court in negativing that contention is untenable. Section 21 of the Pre-emption Act runs as follows :