RIKHI RAM Vs. VIRSE RAM

JUDGEMENT

(1.) THIS second appeal has-arisen out of the pre-emption case. The suit was filed by the plaintiffs-respondents (hereinafter referred to as the pre-emptors) for possession of the land, in dispute, by way of pre-emption, sold by Jarnail Singh to the defendants-appellants (hereinafter referred to as the vendees ). Jarnail singh, the vender, sold 10 Kanals 13 Marias of land. i. e. l/9th share of 96 kanals 3 Marlas of land comprised in Khevvat Nos. 105 and 106, fully described in para 1 of the plaint, for Rs. 6,000. vide sale-deed (Exhibit D-1j dated 20th february, 1968. The vendor was a co-sharer with the pre-emptors and thus the pre-emptors filed the suit on the basis of a superior right against the vendees who are absolute strangers. The claim of the pre-emptors was resisted by the vendees and the parlies contested on the following issues:-

(2.) THE trial Court decided issue No. I in favour of the pre-ernptors holding that they had a superior right of pre-emption being co-sharers of the vendor; issues nos. 2 and 3 in favour of the vendees; issue No. 4 against the vendees; issue no. 5 against the pre-emptors holding that they are estrpppd by their conduct from bringing the suit; issues Nos. 6 and 7 against the vendees; and issues nos, 8 and 9 in favour of the vendees holding that they were entitled to Rs. 672. 50 as deed expenses and Rs. 400 for improvement in the land. On account of finding on issue No. 5, the pre-emptors' suit was dismissed by the trial Court. Dissatisfied by the judgment and decree of the trial Court, the pre-emptors filed an appeal before the Additional District Judge, Kernal, who had reversed the finding of the trial Court on issues Nos. 5 and 9, allowed the appeal and decreed the pre-emptors' suit on payment of Rs. 6,000 as sale price and Rs. 672. 50 as deed expenses, i. e. Rs. 9672. 50 in all. Hence this second appeal by the vendees.

(3.) THE only issue which now survives for -determination in this second appeal is issue No, 5 as the finding of the lower Courts on other issues is not assailed by the learned counsel for the vendees-appellants. He contended that the finding of the lower appellate Court on issue No. 5 is not sustainable in law and pointed out that D. Ws. 3, 4 and 6 have categorically stated that the pre-emptors were present at the time of negotiations and that an offer to purchase the land, in dispute, was made to them by the vendees, but they declined. In support of his contention, the learned counsel has placed reliance on Bhagat Ram v. Raghbar dial, AIR 1925 Lah 57; Ram Sahai v. Muhammad Tufail, AIR 1929 Lah 265; sardar Mohammad v. Khuda Bakhsh, AIR 1935 Lah 884 and Kanshi Ram sharma v. Lahori Ram, AIR 1938 Lah 273, All these cases are distinguishable from the facts of the present case, in Bhagat Ram's case (supra) the father of the pre-emptor had taken an active part in the negotiations, and the pre-emptor himself assisted in collecting the money he was not merely a silent spectator of the actual registration but took an active part there also. Their lordships of the Division Bench held as under:-