SANTOKH SINGH Vs. LIJJA RAM

JUDGEMENT

(1.) This is vendee's second appeal in a pre-emption suit against whom the suit has been decreed by both the Courts below.

(2.) The plaintiff-respondent Lajja Ram, claimed superior right of pre-emption being the brother's son of the vendor as well as being a co-sharer in the Khata. It has been concurrently found by both the Courts below that the plaintiff was a co-sharer in the khata though at the same time it was also found that he was the brother's son of the vendor. The plea of the vendee-defendant that he was a tenant on the suit land was negatived. Consequently, the plaintiffs suit was decreed The appeal filed by the vendee-defendant was dismissed by the lower appellate Court. Dissatisfied with the same, he has come up in second appeal to this Court.

(3.) As regards the ground to claim the superior right of pre-emption being the brother's son of the vendor, the same is no more available to the plaintiff in view of the Supreme Court decision in Atam Parkash v. State of Haryana 1986 (89) Pun LR 329. However, as the plaintiff was also found to be a co-sharer in the Khata, he still could maintain the suit for pre-emption. During the pendency of this appeal, the vendee-defendant moved an application under O.XLI, R.27 of the Civil P.C., for permission to place additional evidence on record. It is stated in paras 4 and 5 thereof that during the pendency of the appeal in this Court, the plaintiff started partition proceedings before the revenue Courts including the land, in dispute, and sought the separation of his share of the land from other co-sharers by way of partition. The Collector, vide order dt January 17, 1983, sanctioned the partition and as a consequence thereof "nagsha Jeem" was prepared on May 16, 1983. The partition proceedings have been completed and concluded. Land measuring 48 Kanals comprised in rectangle No.11 Killas Nos.1,2,9,10 and 12 and rectangle No. 7, Killa No.22 has been allotted to the appellant in lieu of the land, in dispute, regarding which the decree had been passed in favour of the pre-emptor. As against this, the land measuring 121 kanals 3 marlas in some of the various rectangles and killa Nos. was allotted to the pre-emptor. According to the appellant, all these facts stand admitted by the plaintiff-pre-emptor in his application Civil Miscellaneous No.2405-C of 1983, moved in this Court Reply to the said application has been filed on behalf of the defendant-vendee. The allegations made in paras 4 and 5 of the application made by the appellant u/O.41, R.27, C.P.C. are not denied. In para 6 of the reply it has been stated by the plaintiff-pre-emptor that even if the factum of partition during the pendency of the appeal is admitted and proved, the same has no legal effect on the merits of the appeal in any way. It is in these circumstances that the main question to be decided in this appeal is : as to what is the effect on the rights of the plaintiff-pre-emptor who was no more a co-sharer in the khata at this appellate stage and whether in these circumstances, his suit for pre-emption is liable to be dismissed though it was decreed by the Courts below he being a co-sharer in the khata or still he is entitled to the said decree because he maintained that right up-till the date the decree was passed in his favour by the trial Court?