RAJ DULARI Vs. TARSEM SINGH

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against the judgment and decree of a learned single Judge of the Delhi High Court, Himachal Bench, Simla, affirming the judgment and decree of the learned District Judge, decreeing the pre-emption suit filed by Tarsem Singh present respondent against Smt. Raj Dulari vendee, and his father Gulzar Singh, who had sold the land by a registered deed for a sum of Rs. 10,000/- on 24-4-1967. The plaintiff brought a suit for possession on the ground that the sale had been made by his father simply to deprive him of his rights and that the sale consideration as shown in the registered deed at Rupees 10,OOO/- was fictitious and that the only consideration that passed was Rs. 5,000/-. The plaintiff being the son of the vendor had a preferential right, and as such he sued for possession of land on payment of Rs. 5,000/-. Smt. Raj Dulari contested the suit and pleaded that the plaintiff was made a figure-head and that the suit had been filed for the benefit of Jai Ram Ram Krishan, Bhagwan Dass, sons of Wazira, and Ram Krishan son of Attroo, and that the expenses of litigation are being met by those persons, the plaintiff had no money to prosecute the litigation and that Smt. Khem Kaur, the next friend of the plaintiff, had waived the right to pre-empt the sale on behalf of the plaintiff. It was denied that the consideration of Rs. 10,000/-, as shown in the registered sale deed was fictitious. It was pleaded that the vendor had purchased land in the name of the next friend of the plaintiff in Dehra Dun district and the sale was for the benefit of the family and the plaintiff cannot pre-empt the sale. Further, it had been pleaded that the plaintiff constituted a joint Hindu family with his father, Gulzar Singh who had sold the land as manager of the coparcenary for the benefit of the joint Hindu family. This plea was controverted by the plaintiff. He said that he was not a member of the coparcenary with his father nor was the property coparcenary that they were Saini agriculturists and were governed by agricultural custom obtaining amongst the Sainis of Paonta tehsil.

(2.) SEVERAL issues were framed and the trial Court held that the consideration of Rs. 10,000/- was not fictitious. The contention of the defendant that the sale was effected for the benefit of the joint Hindu family prevailed with the trial Judge and in view of this the plaintiff was non-suited. On appeal the learned District Judge held that the plaintiff and his father Gulzar Singh were governed by customary law and that the plaintiff was entitled to pre-empt the sale. The defendant's counsel contended before the learned District Judge that the defendant had spent Rs. 260/- on registration and was also entitled to recover that amount from the plaintiff. The learned District Judge allowed the appeal and reversed the judgment and decree of the trial Court and decreed the suit for possession on payment of Rs. 10,260/-. This amount was ordered to be deposited in the Court of the Senior Sub-Judge within two months from the date of the judgment and decree of the Court of the District Judge, failing which it was decreed, the suit would stand dismissed. Before the learned single Judge the judgment of the lower appellate Court was assailed on two grounds; firstly, that the District Judge was neither competent to entertain the appeal nor to decide the same as the decree was in excess of his pecuniary jurisdiction and, secondly, that the mere finding that the parties are governed by customary law is in itself insufficient unless the Court gives a finding as to what that custom is. Both these contentions were repelled by the learned single Judge. According to learned counsel for the appellant the learned single Judge has erred in deciding both these points against him.

(3.) ON the other hand learned counsel for the respondent contends that the jurisdictional value as fixed at the time of filing the suit in the case of a land suit will determine the forum of appeal and that the jurisdictional value will not vary. He relies on Gajja Singh v. Gurdial Singh (AIR 1960 Punj 467) (FB) and on the provisions of Section 11 of the Suits Valuation Act. Further, he contends that in view of the consistent practice that has been obtaining, the jurisdictional value in a pre-emption suit is governed by the rules framed under Section 3 of the Suits Valuation Act and that valuation will determine the forum of appeal also and that the value will not change.