WAHID Vs. AMAR SINGH

JUDGEMENT

(1.) The appellant-plaintiff is in Regular Second Appeal against the judgment and decree of the lower Appellate Court dated 04.11.1987, whereby suit for possession by way of pre-emption challenging the sale deed dated 25.06.1984 executed by other co-sharer in respect of land measuring 3 kanals 15 marlas, has been dismissed, in essence, the judgment and decree of the trial Court dated 14.01.1987, has been set aside.

(2.) Mr. Ashok Kumar Khubbar, learned counsel appearing on behalf of appellant-plaintiff submits, that aforementioned suit was filed on the premise that as per the jamabandi, the aforementioned land was in joint khata and the appellant-plaintiff had 3/8th share of the land of 10 kanals and the defendants have sold the land for consideration of Rs. 13,000/- and thus defeated the right of pre-emption. A sum of Rs. 23,000/- so written in the sale deed, whereas it is only Rs. 11,000/- was paid before the Sub-Registrar. The aforementioned suit was contested by the defendants by filing the joint written statement that defendants have purchased the land from the Vendor for a valuable consideration. The co-ownership of the plaintiff was seriously disputed. It was stated that defendants after purchase of the land, spent a sum of Rs. 1500/- on development and in case any relief is granted to the plaintiff, the defendants are entitled to the amount which was spent on development of the land in dispute and the suit was bad for partial preemption.

(3.) The trial Court on the basis of the documentary evidence i.e. Ex.P2 jamabandi for the year 1980-81 found that Nazim Hassan, Wajid Hassan, Khalid Hassan, Walid Hassan and Galib Hassan were co-sharer without getting share of the partition, the aforementioned Nazim Hassan, Wajid Hassan, Khalid Hassan, Walid Hassan and Galib Hassan sold the land to the respondents-defendants. However, the lower Appellate Court reversed the finding by taking into consideration the cross-examination of the plaintiff that parties were cultivating the separate share, in essence, formed an opinion that there was a partition. He submits that oral evidence would not prevail upon documentary evidence. Position would be converse.