SAMER CHAND Vs. SAHI RAM

JUDGEMENT

(1.) This second appeal has arisen out of a suit filed by the respondent to pre-empt the sale of land measuring 8 Kanals comprised of Killa No. 5 of Rectangle No. 93 sold by Tara Chand to the appellants for Rs. 3,500/-. The plaintiff claimed the preferential right as father's brother's son of the vendor. The vendees contested the suit and controverted the material allegations made in the plaint. They further pleaded that they being tenants on the land on the relevant date the sale in their favour was not pre-emptible. The sale was held not pre-emptible on both the counts, namely, that the vendees were proved to be tenants on the land in dispute on the date of the sale and that the sale being of a specific Killa number was not a sale of a share out of joint Khewat within the meaning of clause (b) of Section 15(1) of the Punjab Pre-emption Act. However, the learned Senior Sub Judge with enhanced appellant powers, on appeal, reversed the findings of the trial Court and upholding the right of pre-emption, decreed the suit. Aggrieved thereby the vendees have come up in second appeal.

(2.) Though the learned counsel for the appellants sought to challenge the findings of the lower Appellate Court on the plea of the vendees that they were tenants under the vendor on the date of the sale but he failed to point out any infirmity which could justify interference with the said finding which is essentially a finding of fact. The copy of the Khasra Girdawari Exhibit D-3 and the Report Roznamcha Exhibit D-4 upon which reliance was placed to prove the tenancy were duly considered and rejected in view of the attending circumstances and the recitals in the deed that the land sold was in self-cultivation of the vendor. The finding of the lower appellate Court in this regard is, consequently, affirmed.

(3.) As regards the right of pre-emption of the plaintiff being a cousin of the vendor, the contention raised was that in the absence of a specific plea, resort could not be taken to clause (b) of Section 15(1) of the Act for upholding such a right. No doubt the particular clause of the section was not specifically stated in the plaint yet no objection in this regard was ever raised in the two Courts below and the parties were fully alive as to under what clause the right of pre-emption was claimed. The technical objection of non-specification of the clause under which the right of pre-emption was claimed cannot, therefore, be allowed to be raised at this stage particularly when all the necessary facts constituting the right had been fully stated in the plaint.