PHUL CHAND Vs. DHARAM CHAND

JUDGEMENT

(1.) This appeal arises out of two rival pre-emption suits that were consolidated and disposed of by a single judgment and decree by the trial Court. The suits were to pre-empt a sale dated 19 May 1933. That sale deed was executed by one L. Parduman Kunwar and was with respect to entire khewat No. 1 of mahal Kalyan Singh in village Shadamabad. Shugan Chand, father of Dharam Chand, respondent, owned a 5 biswa haqiyab in village Shadamabad and this 5 biswa haqiyat constituted khata-khewat No. 2 of the mahal mentioned above. The area of khata-khewat No. 2 was 8 bighas and 8 biswas. Shugan Chand executed a sale deed of his 5 biswa haqiyat in favour of Phul Chand appellant. But in the sale deed the area of the property sold was mentioned as 8 bighas 2 biswas only. In the mutation proceedings that followed the execution of the sale deed by Shugan Chand an area of 8 bighas 2 biswas only was entered in the revenue papers in the name of Phul Chand and the remaining 6 biswas of khata-khewat No. 2 continued to be recorded in the name of Shugan Chand.

(2.) Phul Chand brought a suit for pre-emption with respect to the sale deed dated 19 May 1933, on the allegation that he as the owner of khewat No. 2 was a cosharer in the mahal and that the vendee under the said sale deed was a mere stranger and as such he had a right of pre-emption. Phul Chand's suit was numbered as Suit No. 573 of 1933. Shugan Chand brought a rival suit for pre- emption on the allegation that as he still owned an area of 6 biswas in khewat No. 2 and as he was the brother of the vendor he had a preferential right of pre- emption as against Phul Chand. Shugan Chand's suit was numbered as Suit No. 664 of 1933. In accordance with the provisions of Section 18, Pre-emption Act (Act 11 of 1922) both the suits were as already stated consolidated and the trial Court by an order dated 12 December 1933, directed that the plaintiff of the one suit be impleaded as a defendant in the other. By some oversight however Shugan Chand was not impleaded as a defendant in Phul Chand's suit. This omission however has no effect on the decision of the appeal before me.

(3.) Phul Chand in both the suits maintained that the entire khata-Khewat No. 2 was transferred to him by Shugan Chand and Shugan Chand had no share left in that khewat. Phul Chand was however faced with this situation that in the revenue papers Shugan Chand's name was entered over an area of 6 biswas of Khewat No 2. In other words, Shugan Chand was recorded as a cosharer of Khewat No. 2. In order to strengthen his position in the preemption suit Phul Chand brought a suit for a declaration that he was the owner of the 6 biswas recorded in the name of Shugan Chand and this suit was numbered as Suit No. 742 of 1933. This suit was also on the file of the same Court in which the two pre-emption suits were pending. Shugan Chand contested this suit on the allegation that he had sold only an area of 8 bighas 2 biswas out of Khewat No. 2 to Phul Chand and was still the owner of the remaining 6 biswas in that khewat. Shugan Chand further contended that as Phul Chand was not in possession of the 6 biswas in dispute his suit for declaration was barred by the provisions of Section 42, Specific Belief Act. The trial Court overruled the pleas urged in defence and decreed Suit No. 742 of 1933. The result of this decision was that Shugan Chand was held to be a total stranger to the mahal and accordingly the trial Court decreed Phul Chand's suit for pre- emption (Suit No. 573) and dismissed Shugan Chand's suit (Suit No. 664).