BAKHTAWAR SINGH Vs. NACHHITTAR SINGH

JUDGEMENT

(1.) This is the second appeal by a plaintiff whose suit for possession by pre-emption of the land in dispute had been dismissed by the trial Court and whose first appeal had met with no better fate in the Court of the District Judge, Ferozepore.

(2.) The facts of the case are that Chanan Singh, the owner of this land, sold it by registered deed, Exhibit D. 7, dated 30-12-1963 ostensibly for a sum of Rs. 27,000/- in favour of the defendant-respondents. The plaintiff-appellant claiming to be the vendor's father's brother's son filed this suit for pre-emption of the sale on 30-12-1964 which was the last day of the period of limitation prescribed by law for filing such a suit. His relationship with the vendor is not in dispute at this stage and he has also conceded that the sale price of Rs. 27,000/- had been actually paid or fixed in good faith.

(3.) About six weeks after the appellant had filed the pre-emption suit, vendor's son Harbans Singh filed a suit on 8-2-1965 for the usual declaration under the Punjab Customary Law that his father had sold away ancestral land without consideration and necessity and that the sale shall not affect his reversionary rights after the life-time of his father. The appellant was not a party to that suit. Harbans Singh was not asserting his right of pre-emption in that suit on the ground of his being the son of the vendor or on any other ground and it may again be pointed out that he had allowed the limitation period for filing such a pre-emption suit to run out more than a month before he came to Court. The parties to this declaratory suit arrived at a compromise on 22-3-1965 in the absence of the plaintiff-appellant. Exhibit D. 12 is the copy of the deed of compromise and Exhibit D. 8 is the copy of the judgment dated 22-3-1965 based on this compromise. The parties to that suit had agreed to covert the sale into a mortgage with possession for a sum of Rs. 27,000. The land was to continue to be in possession of the vendees who were thereafter to be treated as the mortgagees. Harbans Singh plaintiff was, however, to be shown as the mortgagor in the life-time of his father. This compromise had so to say, brought about an acceleration of Harbans Singh's reversionary rights; a relief which is generally not claimed or granted in a declaratory suit of this nature. The trial Court had dismissed the plaintiff-appellant's suit for pre-emption on the ground that the transaction had been converted into a mortgage and that the transfer was no longer pre-emptible. The doctrine of lis pendens relied upon by the plaintiff-appellant was somehow found to be inapplicable to the case. The same reasoning prevailed with the learned Court of first appeal who had further relied on the Supreme Court ruling in Bishen Singh and others v. Khazan Singh and another, 1958 AIR(SC) 838.