BACHAN SINGH Vs. BHUPAL SINGH

JUDGEMENT

(1.) THIS regular second appeal has been placed before us in pursuance of the order, dated 25-3-1964, of a Bench consisting of Khanna. J. and myself Originally this appeal and R. S. A. No 190 of 1962 arising out of the same controversy and preferred against the same judgment and decree of the Additional District Judge, amritsar, were heard by Shamsher Bahadur, J. who on 29-1-1963 in view of the conflicting decisions of the Allahabad High Court and the Punjab Chief Court on the point in controversy suggested both the appeals to be disposed of by a Full Bench. The appeals were, however, as ordered by my Lord the Chief Justice, placed before the Division Bench. Regular Second Appeal No. 190 of 1982 was on 19-31964 withdrawn and, therefore, dismissed as such by the Bench whereas full arguments were addressed by the parties in the present appeal, and since the correctness of some of the Bench decisions of the Punjab Chief Court was questioned, it was considered desirable to suggest disposal of this appeal by a Full bench. As only one question of law was canvassed before the Bench, which is clear from the referring order, on which the fate of the whole appeal rested, it was not considered necessary to formulate the said question and the appeal itself was directed to be disposed of finally by the Full Bench.

(2.) IN order to understand the significance of the point raised, the facts may briefly be recapitulated. Sewa Singh and his brothers Mewa Singh, Balwant Singh, Pritam singh and Bikram Singh sold one-third share of 206 kanals and 5 marlas of agricultural land in favour of Banchan Singh, Hazara Singh, Kapoor Singh and sampuran Singh sons of Jind Singh and Avtar Singh son of Wasakha Singh Bhopal singh son of one of the vendors and Sarmukh Singh son of Harnam Singh instituted the suit for preemption, out of which the present appeal arises, the first plaintiff claiming pre emptive right as son of one of the vendors and nephew of the other vendors and the second plaintiff claiming pre-emptive right as a co-sharer in the land in dispute, Defendants 7 to 10, the co-vendors, admitted the allegations of the plaintiffs and supported their claim. The vendees-defendants denied that sarmukh Singh, plaintiff No. 2, was a co-sharer; they also denied that Bhopal singh was the son of Sewa Singh. In addition it was pleaded that an agreement had been written between the plaintiffs which precluded Bhopal Singh from claiming any interest in the land sought to be preempted and that the suit was benami and collusive. These are the only pleas which concern us at this stage.

(3.) ON the pleadings the trial Court settled seven issues, out of which only three may be reproduced at this stage--