KARNAIL SINGH Vs. KEHAR SINGH

JUDGEMENT

(1.) IN this second appeal by the vendees in a pre-emption case, the Courts below have come to the concurrent findings of fact that the transfer in favour of the appellants was a sale and not a mortgage as claimed by them. This finding of fact cannot possibly be disturbed in a second appeal when it is based on reliable evidence including the registered deed executed between the parties to the transaction.

(2.) THE appellants had purchased the land in dispute from defendant-respondent no. 2 for a sum of Rs. 25,000/- vide the registered deed Exhibit D-2 dated March 3, 1966. The plaintiff-respondent No. 1 had filed the suit for pre-emption on the last date of limitation, that is, March 3, 1967 and it is nobody's case that the suit is time-barred. About two months after the pre-emption suit had been filed, the vendor instituted a suit against the appellants for a declaration that a fraud had been practiced on him and that whereas he had intended to mortgage the land he had been wrongly made to execute a sale deed. This suit was compromised between the parties to the sale within a week after it had been instituted and before any service had been officially effected on the appellants. It was not the case of the parties in that compromise that the transfer was a mortgage from its very inception. The vendees had, however, agreed to treat the transfer as a mortgage though it was described to have been originally entered into as a sale. The consideration of Rs. 25,000/- was described as the sale-price (Zar-i-Saman)though it was agreed that it would henceforth be taken to be the amount for which the land had been mortgaged. The suit was decreed in terms of the compromise deed the same day. The plaintiff-pre-emptor was no party to these proceedings and his pre-emption suit was pending at the time.

(3.) IN spite of the fact that the compromise decree between the parties to the sale could have been challenged by the plaintiff during the hearing of his pre-emption suit on the ground that the decree was collusive and ineffective as regards his rights, he had filed a completely unnecessary suit for a declaration to that effect on December 14, 1967. This suit was, however, withdrawn by the plaintiff-respondent during the pendency of the pre-emption suit but after the defendants had stepped into the arena to contest it. The statement made by the plaintiff-respondent, copy Exhibit D-7, dated May 25, 1968, is to the effect that the points in controversy in the declaratory suit had also been agitated in the pre-emption suit and can be decided therein. The Court passed the final order the same day saying that the suit was being dismissed as withdrawn in view of the statement made by the counsel for the plaintiff. The pre-emption suit was decreed by the trial Court about 6-7 weeks later.