BASTI Vs. JAI CHAND AND ORS.

JUDGEMENT

(1.) THIS is a regular second appeal which has been referred by Mahajan, J., for disposal by a Division Bench. The facts of this case are that Sadhu Singh and Daulat Singh, Defendants 5 and 6, two brothers, sold land measuring 119 bighas 7 biswas to Jai Chand and three others, Defendants 1 to 4, for consideration stated to be 10,000. This land was under the tenancy of the Plaintiff Basti. The sale was effected on 15th of November, 1954, and Basti asserting his right of pre -emption under Section 17 of the Punjab Security of Land Tenures Act, 10 of 1953, instituted a suit on 15th of March, 1955, for pre -emption. On 11th November, 1955, the suit was decreed and the genuine consideration was held to be Rs. 8,000. The vendees appealed and the Additional District Judge allowed their appeal holding that the right of pre -emption as claimed by the Plaintiff had not been substantiated. From this decree the present regular second appeal was filed on 23rd of June, 1956. The regular second appeal came up before Mahajan, J., on 15th of February, 1961. Mahajan, J., expressed the view that it was not possible to decide this case without determining the question, which had not been properly determined by the Courts below, as to whether the vendors were "small landlords" within the meaning of Section 17 of the Act. The learned Single Judge remanded the case to the trial Court directing that Court to submit a report after enquiring whether at the date of the sale the vendors were possessed of the land more than the permissible limit under the provisions of the Act. According to the report the landlords, i.e., the vendors, were not found to be "small landlords". On that occasion the attention of the learned Single Judge was drawn to the Single Bench decision of Gosain, J., in Subedar Shangara Singh v. Indraj and Ors. Regular Second Appeal No. 390 of 1960, decided on the 27th of September, 1960. As Mahajan, J., had expressed doubts as to the correctness of that decision this matter has been referred to the Division Bench.

(2.) ON the pleadings of the parties several issues were framed including the first issue which is as under:

(3.) IT has been urged on behalf of the Plaintiff, that he should be given now an opportunity to lead evidence in order to show, that the area in his occupation and the subject -matter of the suit was other than the reserved area. Plaintiff's counsel says that Justice Gosain in that case had given an opportunity to the Plaintiff by remanding the case for determination of this question after giving opportunity to the parties to lead their evidence. I do not think that the direction given in that case is a precedent of a sufficiently persuasive character for passing a similar order. The discretion exercised by a Court depends upon the particular facts in each case. In my view there does not appear to be any justification for giving to the Plaintiff a further opportunity at this stage. The first issue is sufficiently comprehensive and Section 17 of the Act contains no ambiguity. This case has once been remanded by the learned Single Judge and on that stage the Plaintiff did not ask for an opportunity to lead evidence to show, that the land in suit was not included in the reserved area. I do not think that this Court will be justified in granting the indulgence prayed for in this case.