NAMDEO SHANKAR PATIL Vs. RAMRAO MAROTI PATIL

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. This appeal by the plaintiff arises out of a suit for pre-emption. The facts necessary for the purposes of the present appeal are that defendant

(2.) , transferred his field No. 90 of Mouza Akolkhed to defendant 1 for a consideration of Rs. 142-8-0 on 1st October 1928, under Ex. P-1, without giving to the plaintiff, who is a co-occupant, a notice as required by the Berar Land Revenue Code. The plaintiff therefore claimed to pre-empt the field on payment of Rs. 142-8-0 only. Among other pleas the contesting defendant alleged that the amount mentioned in the deed of transfer was only nominal, that the market value of the field was at least Rs. 2000 and that if the plaintiff desired to pre-empt he must pay the market value before taking possession. Issue 5 framed for trial was whether the plaintiff was entitled to claim the field on payment of the amount of relinquishment or on payment of the market value and issue 6 appertained to the market value of the field. On Issue 5 the decision of the trial Court was that the plaintiff could pre-empt by paying only the market value of the field which the Court found to be Rs. 500 at the date of the transfer. A decree was accordingly passed in favour of the plaintiff ordering him to deposit Rs. 500 minus the costs of suit for payment to defendant 1 by a certain date and take possession of the field. 2. The plaintiff was apparently satisfied with this decree but defendant 1 appealed and among other grounds questioned the finding of the trial Court on issue 6 as to the market value of the field. The lower appellate Court after dealing with the evidence on the point came to the conclusion that the market value of the field was Rs. 1,230 and accordingly raised the pre-emption price from Rs. 500 to that amount. Against this decree of the lower appellate Court the plaintiff has filed the present second appeal.

(3.) ON behalf of the respondent objection is taken to the appellant's right to challenge the decision of the trial Court on issue 5 for the first time in second appeal on the ground that no such objection was taken by the appellant before the lower appellate Court as required by law, viz., either by filing an appeal or cross-objection. For the appellant it is conceded that neither an appeal nor cross-objection was filed by him, but it was urged that the appellant, as a respondent to the first appeal, exercised his right of supporting the decree of the trial Court disallowing the claim of the then appellant to the extent of Rupees 1,500 out of Rs. 2,000 which defendant 1 had claimed as the price of pre-emption by objecting to the finding of the trial Court on Issue 5. It was therefore contended that as the lower appellate Court decided the point thus raised by the appellant, as it did, in para. 17 of its judgment by agreeing with the finding of the trial Court that the price of preemption was the market value of the field, the appellant has a right to challenge that finding in the present appeal.