CHANDAN Vs. RAM SARUP

JUDGEMENT

(1.) This second appeal arises out of a suit for pre-emption filed by Ram Sarup in respect of a sale of land measuring 48 kanals made by Manage to Chandan appellant for Rs. 9,000/- vide registered sale deed dated 13th December, 1969. The plaintiff claimed possession on the basis of his being the son of the vendor. The suit was contested by the vendee and on the pleadings of the parties a number of issues were framed, but we are only concerned with issues Nos. 5 and 6, which are as follows :

(2.) In respect of issue No. 5, the main contention of the appellant is that the property being a joint Hindu family property sale by the Karta of the family is not pre-emptible by one of the coparceners. The position of law is no doubt unexceptionable, but the question that needs consideration is whether there is evidence to establish that any part of the property was of the joint Hindu family. Even if it be accepted that the family was a joint Hindu family it does not follow that the property held by any member of the family is joint. It is well settled taht proof of the existence of a joint Hindu family is joint does not lead to the presumption that property held by any member of the family is joint. The burden rests on any one asserting that any part of the property is joint to prove this by acceptable evidence. We are, therefore, to examine whether it has been established that the property in dispute was the joint Hindu family property. In this respect, reliance is mainly placed on the admission made by the plaintiff in a suit instituted by him on 8th January, 1970. In this suit he had described himself as a coparcener along with his father and he had admitted that the property covered by that suit was coparcenary property. Basing himself on this admission, it is now contended that the property in dispute now should be held to be a coparcenary property and the plaintiff be non-suited on that account as the sale was by the Karta. It is not disputed that the property which was involved in suit in which the admission was made by the plaintiff that it was coparcenary property was different from the property which is now in dispute. In fact, the admission related to the property which was left after the present sale. In this situation, the admission made by the plaintiff could have no effect on the question whether the property involved in this suit is coparcenary property or not. Faced with this situation, Mr. Gour contends that the Khatauni number of both the properties is the same and that from this an inference should be drawn that the property in suit was also coparcenary property, as the plaintiff in the other suit had admitted the remaining property to be coparcenary property. Mr. Gour could not support his contention from any authority. The authority cited by him related to the position under the customary law and not under the Hindu law. Even if it is found that one part of the property is coparcenary property, an inference that another part of the property held by a person would also be complainant cannot be drawn. I, therefore, uphold the findings of the trial Court on issue No. 5.

(3.) The learned appellate Court has found the plaintiff to be joint tenant of Killa No. 121/10. So far as the rest of land is concerned, it has been held that the vendee is not proved to be tenant of this land. While challenging these findings, the learned counsel for the appellant has raised two contentions. It is firstly pointed out that Killa No. 121/11 ought to have been held to be under the tenancy of the appellant that in any case the whole of Killa No. 121/10 should have been held to be non-pre-empible. So far as the first argument is concerned, in the relevant Khasra girdawaris from kharif 1968 to kharif 1971 this Killa number as originally shown to be under the cultivation of one Dani. Subsequently during the pendency of the present suit the girdawari was corrected by the Assistant Collector Second Grade as a result of which Chandan was shown to be tenant instead of Dani from kharif 1968 to kharif 1970. Relying on 1972 P.L.J. 211, the learned appellate Court concluded that this correction could not be taken notice of as it was made during the pendency of the suit. No authority to the contrary having been cited before me, I find that the ratio of the decision in 1972 P.L.J. 211 is attracted and has to be followed. If the appellant wanted to show that these khasra girdawaris had not been correctly made, he should have led evidence during the trial of the suit, and as this has not been done, I find that the appellant cannot take advantage of the correction made by the order of the Assistant Collector dated 24th June, 1971.