SMT. GURDIP KAUR Vs. KEHAR SINGH AND ANOTHER

JUDGEMENT

(1.) BY means of a registered sale deed dated the 25th May, 1964 Shingara Singh respondent No. 1 sold 50 kanals and 16 marlas of his land situate in village Pakhana along with all rights appurtenant thereto and a kutcha house situate in the abadi for Rs. 7,620/ - to Smt. Gurdeep Kaur. As the limitation was about to expire, on 31st of May, 1965, the vendor's son Kehar Singh brought a suit for pre -emption out of which this appeal has arisen He claimed possession of the land sold to Shrimati Gurdeep Kaur along with all other rights mentioned in the sale -deed on payment of Rs. 6,620/ alleging that the market value of the land did not exceed this amount and the consideration cited in the sale deed (Rs. 7,620/) had been inflated in order to ward off the preemports. It may be noticed here that in the plaint which was drafted by an Advocate and bears his signatures, no mention of the kutcha house, which was included in the sale -deed, was made either in paragraph No. 1, while setting out the description of the property, or in the prayer clause which is in these words: Hence it is prayed that a decree for possession of land, by right of pre -emption, mentioned in paragraph No. 1 of the plaint, and in the sale -deed, may kindly be passed in favour of the plaintiff and against the Defendant along with all other rights sold vide registered sale deed dated 25th May, 1964, on payment of Rs. 6,620/ - the amount actually paid along with the costs of the suit and the plaintiff may be awarded any further relief to which he is found to be entitled to in the interest of justice".

(2.) IN contesting the suit, the vendee Smt. Gurdeep Kaur pleaded, inter alia, that the kutcha house situate in the abadi which formed part of the property sold having not been included in the plaint for pre -emption, the suit was liable to dismissal as partial pre -emption could not be allowed. This plea formed the subject matter of a distinct issue (being issue No. 5) which was struck on the 16th September, 1965, and runs as follows:

(3.) WHETHER the suit is bad for partial pre -emption " 3 The trial of the suit proceeded and while the evidence was being examined, on 21st February, 1966. the pre emptor applied to the Court for amendment of the plaint so as to include the kutcha house situate in the village abidi both in the relief clause and paragraph 1 of the plaint. This application, which was admittedly made long after the period of limitation for filing the suit had expired, was vehemently opposed by the Defendant - vendee and after due consideration of the matter, the learned trial Judge disallowed the amendment by his order dated 22nd of March 1966 primarily on the ground that as the period of limitation bad expired, a valuable right had accrued to the vendee and it was not fair to allow the plaintiff to incorporate a new prayer in his plaint. No attempt was made to challenge tins order by way of revision to this Court and the suit was allowed to proceed for determination on merits, After, trial, the learned Subordinate Judge dismissed it solely on the finding that it was for partial preemption, the katcha house stated in the sale -deed having been left out. Against this decree of the Additional Subordinate Judge dated 27th April 1966, the preemptor appealed to the Court of the District Judge It may be mentioned here that though the suit had been dismissed solely on the ground that it was for partial preemption and earlier the trial Court had disallowed the application for the amendment of the plaint so as to include the kutcha house situate in the abadi, in the course of the appeal filed in the District Court no grievance was nude of the fact that the application for amendment had been wrongly disallowed. It was during the pendency of the appeal that the preemptor or his counsel suddenly woke up and realised that without amendment of the plaint the suit must fail. This risk was sought to be warded off, by making a fresh application for amendment of the plaint, this time to the appellate Court, In this application, which was presented on 20th of November, 1967. to the Additional District Judge, before whom the appeal was then pending, the prayer for amendment of the plaint was sought to be justified on the plea of inadvertent commission. In paragraph 2 of that application it was stated: That through inadvertence the katcha house alleged to have been sold, vide sale deed, dated 26th May, l964, was not mentioned in the plaint, although the plaintiff filed a suit for all the rights appurtenant to the land, in suit, as mentioned in the sale deed but the plaintiff did not mention the katcha house, which was also allotted, along with the land in dispute specifically.