PRITAM SINGH Vs. TARA SINGH

JUDGEMENT

(1.) The facts leading to this appeal are that the present appellants Pritam Singh and Major Singh (who died during the pendency of the appeal in the lower Appellate Court and whose legal representatives have been brought on the record) had filed a suit for possession of 2/3rd share of the land measuring 8 Kanals 10 Marlas situated in village Nathu Khera. According to the allegations in the plaint, the plaintiffs and defendant No. 3 Sikatar Singh alias Ajit Singh, who are brothers inter se, were joint owners of the suit land. Defendant Nos. 1 and 2, who are father and son, are in wrongful possession of the suit land. They (i.e. defendants) were alleging that they had purchased this land from Sikatar Singh. However, Sikatar Singh had no right to sell more than his 1/3rd share in the suit land.

(2.) Learned counsel for the appellants argued that both the Courts below have not considered the pleadings of the parties and the evidence led in the case in the right perspective. The said argument has force. The plaintiffs produced on the file Exhibit P. 1, which is copy of the decree-sheet dated 26th July, 1965 by which suit for pre-emption filed by them and defendant No. 3 was decreed in respect of 8 Kanals 14 Marlas of land comprised in Rectangle No. 4, Killa Nos. 9, 11 and 12. At that time all the plaintiffs of the suit were minors and it had been filed by their mother, Bawi, as their next friend. She had appeared in the witness box as P.W. 1 and during cross-examination she stated that pre-emption suit which had been filed by her as next friend of her minor sons i.e. plaintiffs and defendant No. 3, had been decreed and she had deposited the pre-emption money under the decree. Tara Singh defendant No. 1 has also stated that at the time of the sale he had seen the copy of the decree-sheet passed in the pre-emption suit. In fact, whole case of the contesting defendants is based upon the plea that Sikatar Singh had become owner of the suit land under the decree obtained in the above pre-emption suit. Sikatar Singh could become owner only if the pre-emption amount had been deposited under the decree. In the sale deed Exhibit D. 2 executed by Sikatar Singh in favour of defendant No. 2 Hansa Singh there is a mention that the vendor had become owner of the land sold under the pre-emption decree. Thus in the light of the pleadings and the evidence led in the case, I fail to understand how the learned Courts below have held that pre-emption money had not been deposited under the decree and, therefore, the plaintiffs and Sikatar Singh had not become owners of the suit land. Merely because the plaintiffs did not produce the receipt about the deposit of the pre-emption money under the decree, the pleading and other evidence could not have been overlooked. I need not dwell on this point because the learned counsel for the respondents was unable to support the findings of the learned Courts below rendered under issue No. 1. It is, therefore, held that the plaintiffs were owners of the suit land to the extent of 2/3rd share. The finding of the Courts below under that issue are upset accordingly.

(3.) The learned counsel for the respondents argued that during the pendency of the appeal in the lower Appellate Court, Major Singh had died and his mother Bawi had been brought on the record. He argued that Bawi had attested the sale deed Exhibit D. 2, therefore, Section 43 of the Transfer of Property Act is applicable to the present case and suit is liable to be dismissed qua the share of the deceased plaintiff. I am of the opinion that no relief can be granted to the defendants in this suit. Bawi has been brought on the record only as legal representative of the deceased-plaintiff Major Singh. She is not fighting the litigation in her own rights. If the defendants are deprived of the land, then they may have a remedy against her in her personal capacity to the extent of her share in the suit land. In that case, Bawi will have a right to defend the suit on the pleas open to her. Therefore, I decline this prayer of the learned counsel for the respondents.