DALIP SINGH Vs. SHIV MANDIR AND ORS.

JUDGEMENT

(1.) The plaintiff has filed this Regular Second Appeal against the judgments and decree passed by both the Courts below, whereby his suit for possession by way of pre-emption in respect of land measuring 5 Kanals 13 Marlas situated in the revenue estate of village Nakloi, on the ground of co-sharership, has been dismissed. The brief facts of the case are that Smt. Ram De and Smt. Dhanpati, who were co-sharers in the joint khewat, leased out the land measuring 5 Kanals 13 Marlas of their share for a consideration of Rs. 8000/- to defendant No. 1, namely, Shiv Mandir through defendant No. 2 Gopi Ram for 85 years vide registered deed dated 16.11.1985 (Ex. P1). On 11.03.1986, plaintiff Dalip Singh, who was also one of the co-sharer in the joint khewat, filed a suit for pre-emption against the defendant for pre-empting the aforesaid land on the ground of co-sharership while alleging that the aforesaid registered lease deed is nothing but a sale deed, as by the said lease for 85 years the land in dispute was permanently alienated in favour of the defendant.

(2.) The defendant contested the suit on various grounds including that the plaintiff was not a co-sharer in the joint khewat, and the aforesaid registered deed was a lease and not a sale, therefore, the pre-emption suit was liable to be dismissed.

(3.) The trial Court dismissed the suit while coming to the conclusion that the transaction (Ex. P1) is a lease deed and not a sale, therefore, the suit land is not pre-emptable. The appeal filed by the plaintiff was also dismissed and the finding of fact with regard to nature of the transaction that it was a lease not a sale was affirmed by the first Appellate Court.