HARI DEV KAUSHAL Vs. GAJE SINGH

JUDGEMENT

(1.) TWO brothers namely Hari Dev Kaushal appellant in R.S.A. No. 1867 of 1973 end Jagdev Sahai respondent in R.S.A. No. 151 of 1974, purchased from Hira, grandfather of Gajay Singh (respondent in R.S.A. No. 1867 of 1973 and appellant in R.S.A. 151 of 1974) through two separate registered sale deeds executed on 10 -12 1968 land measuring 13 Kanals 13 Marlas each from Khasra No. 156, which comprised of 6 Kanals 13 Marlas, Khasra No. 167 which comprised of 13 Kanals 13 Marlas and Khasra No 169 which comprised of 14 Kanals 7 Marlas, 6 Kanals 13 Marlas each from Khasra No. 156 and 167 and 7 kanals each from 169. Gajay Singh (hereinafter referred to as the pre -emptor) sought to preempt sale through two separate suits. While his suit against Jagdev Sahai was dismissed, his other suit against Hari Dev Kaushal was decreed by the trial Court. Both these judgments were sustained by the first appellate Court. So, we have before us two separate aforementioned appeals, one at the instance of Hari Dev Kaushal and the other at the instance of Gajay Singh pre -emptor and I propose to decide them by a common judgment.

(2.) SUIT against Jagdev Sahai was dismissed by the Courts below in view of the provisions of Section 5 of the Preemption Act (herein after referred to as the Act) as therein it was held that the land had been reclaimed by Jagdev Sahai before the filing of the suit. Suit against Hari Dev was decreed as therein the Courts came to the conclusion that Hari Dev had failed to adduce any evidence to show that he too had reclaimed the land before filing of the suit.

(3.) PERUSAL of the above said provision would reveal that all types of banjar lands fall within the definition of wastel and' Revenue record placed on the file by the defendants - vendees show that entire land comprise in Khasra No. 169, which was shown as Barani remained vacant from 1964 -65 till 967 -68 and 1958 -69 with the result that from Kharif 1968 to Rabi 1969 it has been recorded as Banjar Jadid. That means that entire land comprised in Khasra No. 169 at the time of sale was waste land in terms of section 5 of the Act As regards the land comprised in Khasra No. 167 and 156, admittedly the same was Ghair Mumkin land at the time when it was sold as per Jamabandi for the year 1962 63, Ex. D.1 -Land comprised in Khasra No 156 was recorded as Ghair Mumkin Bhattar 'Khudan' while land in Khasra No. 167 as Ghair Mumkin 'Khathan' with the result that the entire area comprised in these three Khasra Nos. comprised of waste land