AVTAR SINGH Vs. AMRIK SINGH

JUDGEMENT

(1.) By registered sale deed dated 8th July, 1906, Hazara Singh sold 35 Kanals 9 Marias of agricultural land to Amrik Singh Defendant for a consideration of RS. 8,000/- Avtar Singh and Bhagat Singh tiled a suit for pre-emption on the ground that they are the sons of the vendor and the reform, have a preferential right of pre-emption. The vendee Defendant contested the suit and denied that the Plaintiffs were the sons of the vendor besides raising other peas with which we are not concerned in this appeal. The trial Court by judgment and decree dated 1st July, 1968, decreed the suit for posses sun by pre emption after coming to the conclusion that the Plaintiffs were proved to be the sons of the vendor. On appeal by the vendee, the Additional District Judge, Karnal, upset the judgment and decree of the trial Court and dismissed the suit for preemption after coming lo the conclusion that the Plaintiffs were not proved to be the sons of the vendor as the evidence brought on the record did not satisfy the requirements of Section 50 of the Evidence Act and as such was inadmissible. The Plaintiff's have come up in second appeal to this Court.

(2.) After hearing the counsel for the parties, I am of the view that the decision of the trial Court on the point of relationship was correct and in accordance with Section 50 of the Evidence Act whereas that of the first appellate Court is clearly erroneous as Section 50 was misunderstood by it. The lower appellate Court has relied on a Single Bench decision of this Court in Ajaib Singh V/s. Mann Singh,1968 70 PunLR 83, for coming to the conclusion that the evidence brought on record by the Plaintiffs is inadmissible. Before I proceed to discuss the evidence, it would be necessary to notice the scope of Section 50 of the Evidence Act and the relevant authorities thereon The Supreme Court in Dalgobinda Paricha V/s. Niami Charan Misra, 1959 AIR(SC) 914 interpreted Section 50 of the Evidence Act and described the meaning of 'special means of knowledge' and conduct contained in that section. The aforesaid decision of the Supreme Court was noticed in Ajaib Singh's case and the correctness of that decision was doubted and the matter was referred to a Full Bench The Full Bench in Amar Singh V/s. Chhaju Singh and Anr., 1972 74 PunLR 625(per majority) relied on the Supreme Court decision in Dalgobinda's case and explained the decision in Ajaib Singh's case , with the result that Ajaib Singh's case no longer holds good. Therefore, I will go through the evidence brought on record on the basis of the decisions of the Supreme Court and the Full Bench of this Court.

(3.) Both the Plaintiffs appeared as P.W. 1 and P.W. 2. The Court below discarded their statements merely on the ground that they were parties to the litigation. That would be no ground to discard their statements. Rather, they should have been read with caution. I am of the opinion that their evidence should have been appreciated along with other evidence brought on the record.