GURBACHAN SINGH Vs. BHAGWATI AND ORS.

JUDGEMENT

(1.) This is a Defendant's second appeal directed against the appellate judgment and decree of Shri Mohan Lal Jain, Additional District Judge, Karnal, dated 27th April, 1965, upholding the decree for pre -emption obtained by Shrimati Bhagwati Respondent No. 1 from the trial Court on 26th March, 1964.

(2.) The property in dispute is agricultural land measuring 72 Kanals 8 Marlas, being undivided half share of the land which is jointly owned by the pre -emptor Shrimati Bhagwati, Respondent No. 1 and her sister Shrimati Bohti. This entire property was acquired by these two sisters by means of a gift deed made in their favour by their mother Shrimati Nihali on 19th July, 1960, long after the Hindu Succession Act, 1956, had come into force. On 30th May, 1962, Shrimati Bohti sold her undivided one -half share in the entire land measuring 144 Kanal 16 Marlas to the Appellant Gurbachan Singh and Respondents 2 to 4 for a consideration of Rs. 16,000. A few days later, on 12th June, 1962, her sister Shrimati Bhagwati, the Plaintiff -Respondent, is stated to have entered into an agreement (Exhibit D. 2) with the Appellant Gurbachan Singh and other co -vendees to sell her one -half undivided share of the property for Rs. 11,500. Under that agreement, the sale deed was to be executed by the 5th of November, 1962. Shrimati Bhagwati Respondent, however, did not stick to this agreement, and not only refused to complete the sale of her share of the land, but on the other hand on 21st February, 1963, brought the suit out of which this appeal has arisen for possession of the other half of the property (72 Kanals 8 Marlas), which her sister Shrimati Bohti had earlier sold away to the Appellant and others on 30th May, 1962. She claimed superior right of pre -emption on the plea that she was a co -sharer in the land. Though she challenged that the sale in favour of the Appellant and others was not for Rs. 16,000, but only for Rs. 12,000, it appears that later this plea was not pressed. The Appellant and his co -vendees while resisting Shrimati Bhagwati's claim pleaded that she had no right to pre -empt the sale, she was estopped from filing the suit and that they could not be dispossessed without being compensated for the improvements that had been made by them since the sale was effected in their favour. The trial proceeded on the following issues:

(3.) The learned Subordinate Judge after due consideration of the evidence produced before him, found no substance in any of the defence pleas, and deciding all the issues against the Defendant -vendees decreed the claim of Shrimati Bhagwati on payment of Rs. 17,160.83 nP. In appeal against this decree, the right of Shrimati Bhagwati to pre -empt the sale was disputed, and it was further urged that she had waived her right of pre -emption. The learned Additional District Judge found that there was no waiver and under Sec. 15(1) of the Punjab pre -emption Act, as recently amended, Shrimati Bhagwati had the right to pre -empt the sale. Accordingly, the decree of the trial Court was upheld. Hence this second appeal.