KISANLAL MOTILAL Vs. BHIKA GANGARAM

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff (hereinafter called the appellant) against the dismissal of his suit for pre-emption under the Berar Land Revenue Code by the two Courts below,

(2.) THE plaintiff who is a co-occupant in survey No. 19 of mauza Ajijpur, taluq Chikhli, district Buldana, sued to pre-empt on payment of a fair consideration sub-division No. 19/3 of that village which its occupant Bhika sold in favour of his wife Chinkai under the sale deed dated 24th October 1940 (Ex. P-1). His claim for preemption was opposed by the defendants, i.e., defendant 1 Mt. Chinkai and defendant 2 Bhika, on the ground that the sale-deed dated 24th October 1940 was a fictitious document. It was intended to screen the property from the Jagirdar who had filed a suit against Bhika for arrears of rent and ejectment from jagir fields, that no consideration passed nor was possession transferred in favour of. Mt. Chinkai. In short, the title as well as possession remained all along with Bhika, the original occupant, and the plaintiff had therefore no right of pre-emption.

(3.) THE findings of the first Court on issues 1 and 9 were that the sale deed dated 24th October 1940 was bogus and fictitious, that it did not transfer any right in favour of Mt. Chinkai nor was it ever intended that it should so transfer, that possession remained all along with Bhika and that on these grounds no right of pre-emption arose in plaintiff's favour. These findings were reached on accepting the defendant's evidence, particularly the evidence of Bhika (D.W. 1) and Chinkai (D.W. 2.) The evidence of Chinkai shows that the sale-deed dated 24th October 1940 was not at all a bilateral transaction. Bhika brought it into existence by himself and without the knowledge and consent of Chinkai, perhaps under the wrong notion that it would be of use to him in screening the property, if in a suit filed by the jagirdar against him, a decree for arrears of rent is passed, and not a decree for ejectment as the Court had discretion to do. Whether Bhika was right in his apprehension or not is indeed immaterial. The fact remains that he did bring into existence a sale-deed as a unilateral transaction and that no consideration passed from the alleged vendee to the vendor and that possession was not also delivered to her. These findings were accepted and upheld by the lower appellate Court. Thus, the questions involved in this second appeal are prima facie concluded by the findings of fact.