JASPAL SINGH Vs. SARDUL SINGH

JUDGEMENT

(1.) APPELLANTS sought possession by way of pre-emption of land measuring 19 Kanals 1 marla being 1/5th share of total land measuring 95 kanals 4 marks on the basis that they were co-sharers in the land in dispute which was sold by Ajmer Singh to respondent-vendees for a consideration of Rs. 1,33,350/- vide sale-deed dated June 11, 1990. The matter was contested by the vendees on various pleas inclusive of that they were tenants over the land in dispute for the last more than two years prior to the sale and had, thus, preferential right to purchase the same. Whereas all the pleas raised by them were negated by the trial Court, the first Appellate Court in an appeal preferred by them i. e. vendees reversed the findings of the trial Court on the only issue with regard to their being tenants whereas all other findings recorded by the trial Court were upheld. Inasmuch, respondents were held to be tenants over the land in dispute, sale in their favour was protected resulting into dismissal of the suit. Obviously, plaintiff-appellants are in appeal asking for setting aside the judgment and decree passed by the first Appellate Court and restoring the one passed by the trial Court.

(2.) IT is admitted position that in the revene records inclusive of latest jamabandi for the year 1988-89 that was available immediately prior to the sale in question, vendee-respondents found no mention as tenants under the Vendor or any one else. They still pleaded that they were tenants and sought to prove the said plea on the strength of oral evidence by examining DW2 Harnam Singh, DW3 Ajmer Singh vendor and DW5 Karnail Singh. They also produced on records pedigree table, Ex. D1, decree dated February 29,1992, Ex. D3 and Khasra Girdawaris, Ex. D4 and D5, that came into existence on the strength of decree, Ex. D3. They also relied upon recitals in the sale-deed wherein they were mentioned to be tenants over the suit land. The trial Court thread-bare discussed oral as well as documentary evidence, referred to above and came to a definite conclusion on cogent grounds that the plea of defendants thay they were tenants was totally hollow and the evidence was created after filing of the suit by the plaintiffs with a view to defeat their claim. Appellate Court, as referred to above, reversed the findings of the trial Court on the crucial issue and dismissed the suit.

(3.) IN so far as DW3 Ajmer Singh is concerned, suffice it to say that he is a remote collateral of the plaintiffs. The pedigree table produced on the records would reveal that common ancestor of plaintiffs and Ajmer Singh vendor, DW3, was one Kura. Kura had two sons, namely, Nihala and Partapa. Nihala's son was Desu. Whereas, vendor, Ajmer Singh is son of Desu, plaintiff - Jaspal Singh is great-grand-son of Partapa. Plaintiffs suggested to the witness aforesaid that he was enimical to them and even though he denied the said suggestion, his statement leaves no one in doubt that he had no love lost for the plaintiffs. It is significant to note that he supported the cause of defendant-vendees on all conceivable pleas on which a suit for pre-emption could be defeated. Not only that he stated that the defendants were his tenants prior to the sale in question, he also stated that the land in dispute had since been partitioned and plaintiffs are not co-sharers with him in the land in dispute. He also stated that he had informed the plaintiffs that he was going to sell the land do defendant-vendees. It is an admitted position that if plaintiffs had notice of sale and were asked for purchasing the land, they could not successfully maintain suit for pre-empti8on. All these pleas were taken by vendees but were negated. He has, thus, been found to be making false statements on various counts as noticed above and statement of such a witness could not be believed. The matter does not rest there, as, on a suit instituted by defendant-vendees against this witness-Ajmer Singh, after pre-emption suit was filed against them, for correction of entries in the revenue records and which was conceded by him (Ajmer Singh), decree, Ex. D3 was passed. It would further reveal that this witness was interested in defeating the claim of plaintiffs. What could possibly be the cause of action to file a suit against Ajmer Singh after he had already washed off his hands of the land in question and was no more interested in the same, has not been established on records of the case. Learned counsel appearing for the vendees could not even remotely suggest any cause of action that might have accrued to defendants for instituting the suit culminating into decree, Ex. D3. The said suit was filed on January 17, 1992 and the written statement conceding their claim was filed by this witness on February 14, 1992 culminating into decree on February 29,1992. Even though, plaintiffs by that time had filed the suit for pre-emption, which was actually instituted on September 20, 1991, they were not impleaded as party-respondents in the said suit. This Court is in no doubt whatsoever in that Ajmer Singh DW3 was not a truthful witness and the trial Court rightly rejected his evidence. DW5 Karnail Singh is admittedly not living in the village where the land in dispute is located. When cross-examined, he could not remember as to when various crops were sown in the land in dispute. He, however, admitted that the revenue Patwari used to prepare the khasra girdawari (revenue record) at the spot and he would record possession of those who were actually in possession. This witness never stated that he was present at the time when rent was paid or its receipt and executed. No reliance could be placed on the testimony of such a witness as well.