BANTA SINGH GANGA SINGH Vs. HARBHAJAN KAUR

JUDGEMENT

(1.) THE only question of law for determination before this Bench is:-

(2.) BRIEFLY stated the facts are that Arjan Singh and his three brothers, Amar singh, Surjan Singh and Gurmej Singh and their mother, Smt. Khem Kaur, sold 307 Kanals 6 Marlas of land along with 5 kutcha kothas and 1 pucca kotha to banta Singh and others (appellants) for a consideration of Rs. 38,605/-vide registered sale-deed dated August 20, 1964. Smt. Harbhajan Kaur, daughter of arjan Singh, vendor, filed a suit for possession by pre-emption of the said land measuring 307 kanals 6 marlas and 5 kothas, instead of 6, against the payment of the entire consideration of Rupees 38,605/ -. That suit was resisted by the vendees and one of the pleas taken was that the suit was bad for partial pre-emption. This plea was stated in preliminary objection No. 3 in the written statement and in answer to paragraph 2 of the plaint, the vendees categorically stated that 6 kothas were sold along with the land and not 5 as stated in the plaint. In her replication, the plaintiff-respondent asserted that the preliminary objection No. 3 raised by the vendees was wrong and was denied and in answer to paragraph 2 of the written statement, she reiterated that 5 kothas, according to the sale-deed, were sold and not 6. Accordingly, in issue was framed reading as under:-

(3.) AGAINST that decree, the plaintiff-pre-emptor filed an appeal which was accepted by the learned Additional District Judge, Karnal, on December 4, 1967. Along with the memorandum of appeal, an application for permission to amend the plaint, so as to mention 6 kothas instead of 5, was also filed. In that application, it was stated that according to the copy of the sale-deed with the plaintiff's counsel, 5 kothas had been sold--4 kutcha and one pucca--and that is how the mistake had occurred. The learned Additional District Judge allowed the amendment of the plaint and decreed the suit in full. The vendees filed R. S. A. No. 1477 of 1967 in this Court which was partly accepted by Gurdev Singh, J. , on May 8, 1969. The learned Judge held that the amendment had been properly allowed by the learned lower Appellate Court, but the plaintiff-respondent was entitled to pre-empt the sale only to the extent of the share of her father therein and not the entire sale because she had no right to pre-empt the sale made by her uncles and grandmother. Consequently, a decree for 1/6th of the sold property was passed against the payment of Rs. 6227/-, being the amount proportionate to the area of the property to which her right of pre-emption was found to exist.