VASDEV AND ORS. Vs. RAM SINGH

JUDGEMENT

(1.) THIS second appeal is directed against the decision of the District Judge, Hamirpur who has upheld in appeal the decision of the Sub -Judge, First Class, Una and has thereby decreed the suit of Ram Singh for pre -emption in respect of sale of l/3rd share of land measuring 5 kanal 18 marla described in the head -note of the plaint. Ram Singh came to Court with the allegations that the vendor - Defendant executed the sale -deed on March 30, 1971 in respect of the l/3rd share in land in favour of the vendee -Defendant and the sale consideration was deciduously shown at Rs. 1200/ - although it was only Rs. 300/ -. The Plaintiff claimed to be a co -sharer with the vendor and as such entitled to pre -empt the sale. The vendee -Defendants contended that they were tenants in the land and as such the Plaintiff could not claim a superior right of pre -emption.

(2.) THE learned trial Judge decreed the suit and held the consideration to be Rs. 1200/ -. The first appeal came before the learned District Judge and he too has decreed the suit and thus upheld the judgment of the learned trial Judge. The Defendant have now come up in second appeal.

(3.) AS regards the framing of issues, both the Courts below have rightly held that the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side. As such it cannot be held that the absence of an issue, if any, was fatal to the case. In support of this proposition, reference can be made to Nedunuri kameswaramma v. Sampati Subba Rao : AIR 1963 SC 884.