MIR MOHD Vs. NAIN SINGH

JUDGEMENT

(1.) THIS is a civil second appeal against the decree of the learned District Judge, Poonch, dated 8th August 1967 whereby he has dismissed the appeal of the appellant against the decree of the Sub Judge Poonch dated 31 -8 -1966. The appellant was a plaintiff in a suit for possession on the ground of right of prior purchase of half of land measuring 63 Kanals 8 marlas under survey No. 77 -min in village Dhera Mohra, Tehsil Mendhar. The case of the plaintiff was that the defendant No: 1 Nain Singh had purchased this land from the plaintiffs uncle Mehar Din, who was a co -sharer of the land sold alongwith the plaintiff. The land was sold by means of a sale deed dated 18 -4 -1962 for an ostensible consideration of Rs. 3,000/ -. The plaintiff claimed a decree for possession of this land on payment of Rs. 1,000/ - which was the market price of this land according to the plaintiff. The suit was resisted by the defendant No: 1 who denied the plaintiffs right of prior purchase. The consideration of Rs. 3,000/ - was alleged to have been actually paid to the vendor by the vendee. The trial court on the pleadings of the parties framed the following issues in the case : - (1) Whether the plaintff has prior right of purchase qua defendant No: 1 ? O. P. on plaintiff. (2) If issue No: 1 is proved, whether the plaintiff has waived his prior right of purchase ? O. P. on defdt: 1. (3) Whether the sale price was bonafide fixed and paid at Rs. 3,000 - ? O. P. on deft: 1. (4) If issue No: 3 is not proved, what is the market price of the suit property ? O. P. on parties. (5) Whether valuation of the suit for the purposes of court fee and jurisdiction has not been properly fixed. If so, what should be the valuation and how should it be arrived at ? O. P. on defdt: 1. (6) Whether defdt: 1 has effected any improvements in the house in dispute bonafide and if so, what is the value of improvement and is he entitled to be compensated for the same ? O. P. defdt: (7) Relief:

(2.) AFTER recording evidence of the parties, the trial court decreed the suit of the plaintiff with costs and directed the appellant -plaintiff to deposit Rs. 3,000/ - purchase money within two months from 31 -8 -1966 of course taking credit for one -fifth of the purchase money already deposited by the plaintiff. The trial court ordered that if this amount was not deposited within the above time limit, the suit of the plaintiff would stand dismissed with costs. An appeal was preferred by the plaintiff before the District Judge, Poonch, against this decree. In the appeal among other grounds, a ground was taken that the time for depositing the money as directed by the trial court had not yet expired, the time granted by the trial court was very short and as the correct consideration payable by the plaintiff had yet to be determined, the date for deposit of the purchase money be extended. Alongwith the appeal, an application was presented by the appellant -plaintiff for extension of time for depositing the purchase money determined by the trial court. In paragraph 2 of the said application the plaintiff submited that he having preferred an appeal for reducing the price assessed by the trial court, the question of depositing the money by the date as fixed by the said court, which had not yet expired did not arise, and that he had also made a prayer in the memorandum of appeal for extension of time for depositing the purchase money of the land in dispute, which according to him was only Rs. 1,000/ -. This application for extension of time was resisted by the respondent and the lower appellate court on 29 -10 -1966 passed the following order : - "That the counsel for the applicant i.e. appellant has admitted that at this stage the granting of this application of the applicant would be an amendment of the decree, therefore, no further argument is necessary in this application. The application should therefore come up along -with the appeal on the date fixed i.e. 25 -11 -1966".

(3.) THERE was some dispute between the parties about the court fee payable and the lower appellate court after hearing the parties directed on 26 -6 -1967 the appellant to make up the deficiency in the court fee. The appellant paid the deficit court fee on 20 -7 -1967. Thereafter arguments were heard on merits. Among the arguments advanced at the bar before the lower appellate court, it was contended that as the appellant had not deposited the purchase money determined by the trial court within the time fixed by it, i.e. within 2 months of the decree the appeal should be dismissed. An authority of the Supreme court reported as AIR 1954 SC 50 was cited in support of this contention. The lower appellate court finding itself bound by the Supreme Court authority, felt helpless and dismissed the appeal on this very ground alone. It is against this order and decree of the lower appellate court that the plaintiff has come in second appeal to this court.