MEWA SINGH Vs. SARDARA SINGH

JUDGEMENT

(1.) The plaintiff-respondent had filed a suit for possession by way of pre-emption of the land. It was alleged in the plaint that the suit land was sold by one Kartara son of Ram Parkash of village Majri in favour of the defendant-appellants vide registered sale-deed dated June 9, 1967, for Rs. 42,545/-. It is further alleged that the plaintiff-respondent is the brother of vendor and as such has the superior right to get the suit land pre-empted. These allegations were controverted by the defendant-appellants and the parties contested on the following issues :-

(2.) The trial Court decided issue No. 1 in favour of the plaintiff-respondent. Issue No. 2 was decided in favour of the plaintiff-respondent and it was held that he has the superior right of pre-emption qua the defendant-vendees. Issue Nos. 3 and 4 were decided in favour of the defendant-appellants. Issue No. 5 was also decided in favour of the defendant-appellants. Consequently, the suit of the plaintiff-respondent was decreed. On appeal, the findings of the trial Court were affirmed. Hence this second appeal by the defendants.

(3.) The only point which survives for determination of the present appeal is whether Sardara Singh, plaintiff-respondent, is the brother of Kartara vendor. Both the Courts have held that the plaintiff-respondent is the brother of Kartara. This finding is based on evidence. In the pedigree-table of the year 1945-46, copy of which is Exhibit P. 2, Sardara and Kartara have been shown as real brothers, being the sons of Ram Parkash. Exhibit P. 5, is the copy of the mutation in respect of the estate left by Ram Parkash deceased and the land was mutated in favour of Kartara, Sardara plaintiff-respondent and one Babu Ram who were shown as the sons of Ram Parkash in equal shares. Even if it may be admitted, as is mentioned in ground No. 2 of the Grounds of Appeal, that Kartara vendor was the son of Ram Parkash and Sardara is the son of Mangal, and other brother of Ram Parkash, out of Bishni, then also Sardara plaintiff-respondent has the superior right because Kartara and Sardara are admittedly born to the same mother Bishni. Even if their fathers are different, they are to be considered as brothers as they are from the same mother. This matter is concluded by a Full Bench authority of this Court in Moti Ram and others V. Bakhwant Singh and others, 1967 69 PunLR 1041. It was also a case of pre-emption wherein it was held that a step-brother is a brother not having been excluded by the Legislature from exercising his right of pre-emption within the meaning of Section 15(1) of Punjab Pre-emption Act, 1913 . In Balbir Singh and others V. Jagrup Singh,1969 PunLR 500, also it was held that there is no distinction between a full-brother and a half-brother for the purpose of pre-emption law. The same view is taken in Jhanda V. Dharam Dass,1969 PunLR 91, where Delhi High Court has held that the word 'brother is comprehensive enough to include a half-brother and a brother born to a common father, though from different mothers, cannot be described otherwise than as a brother. In the present case, the Courts below have held that mother and the father are same but even if the contention of the appellants is accepted that the fathers are different, then also it comes within the meaning of brother. In Chanan Singh and another V. Smt. Jai Kaur, 1970 AIR(SC) 349, it was held in a pre-emption case that a step-daughter can exercise right of pre-emption and sale of property received by widow from her husband is pre-emptible by her step-daughter. In the present case, according to the appellant, pre-emptor is the son of Mangal and vendor is son of Ram Parkash. They are from the same mother. Even if it may be accepted as correct, then the plaintiff-respondent is vendor is son of ram parkash. They are from the same mother. Even if it may be accepted as correct, then the plaintiff-respondent has a superior right of pre-emption qua the defendant-vendees. Thus, viewed from any angle, the plaintiff-respondent has the superior right over the vendees as the vendees are not related in any manner to the vendor. 3. For the reasons recorded above, I affirm the findings of the Courts below and the appeal is consequently dismissed, but there will be no order as to costs.