LAWS(PVC)-1939-9-79

SHIAM SUNDER LAL Vs. SARMADI BEGAM

Decided On September 12, 1939
SHIAM SUNDER LAL Appellant
V/S
SARMADI BEGAM Respondents

JUDGEMENT

(1.) This is an appeal by the plaintiff, Pt. Shiam Sunder Lal and arises out of Original Suit No. 30 of 1935. It is connected with First Appeal No. 119 of 1936 which arises out of Original Suit No. 40 of 1935. The two suits were decided by the Court below by a single judgment and we also propose to decide the two appeals by a single judgment. The plaintiff in both the cases is Pt Shiam Sundar Lal and the defendant in both the cases is Mt. Sarmadi Begam. The suits were suits for pre-emption. The Tender in both the cases is Aftab Ahmad Khan and he sold one item of property by a sale deed dated 10 August 1934, and another item of property by a sale deed dated 23 October 1934. The vendee Mt. Sarmadi Begam in both the cases is the wife of Aftab Ahmad Khan. Suit No. 30 of 1935 was filed on 9 August 1935 and related to the sale of 10 August 1934. Suit No. 40 of 1935 was filed on 15 October 1935 and related to the sale of 23 October 1934. There is yet another transaction to which reference might be made at this stage, namely a deed of gift dated 27 August 1935, by one Tajjan Bibi, the mother of Aftab Ahmad Khan, in favour of Mt. Sarmadi Begam. It is conceded by Shiam Sundar Lal, the plaintiff, in his evidence in Suit No. 30 of 1935 that Mt. Tajjan Bibi has executed a deed of gift in favour of Mt. Sarmadi Begam.

(2.) The Court below dismissed both the suits and that is why there are two appeals before us. It is true that the two suits were tried together, but the Court below proceeded to discuss the merits of Suit No. 40 of 1935 first. It was observed that Suit No. 40 of 1935 was filed on 15 October 1935, but before that date the defendant vendee had become a cosharer in the mahal by reason of the deed of gift of 27 August 1935 to which reference has already been made, and therefore, no decree for pre-emption could be passed in favour of the plaintiff because he had not a subsisting right of pre-emption at the time of the decree in Suit No. 40 of 1935. The position, therefore, is that Suit No. 40 of 1935 was rightly dismissed by the Court below. It has been argued before us that Suit No. 40 of 1935 could not be and ought not to have been dismissed by the Court below because the deed of gift of 27 August 1935 could be assailed. When learned Counsel for the appellant was asked how the deed of gift could be assailed he said that the deed of gift was really a deed of sale and a suit for pre-emption in respect thereto could be filed. He has also assured us that a suit has actually been filed in respect of this deed of gift. There is nothing on the record of this case from which we could come to the conclusion that any such suit has been filed, nor do we know the result of that suit. So far as the evidence in the present case goes, we know that Shiam Sundar in his deposition has called the document dated 27 August 1935 a deed of gift and nothing else. We have, therefore, come to the conclusion that Appeal No. 119 of 1936 should be dismissed and we dismiss it with costs. The defendant has filed cross-objections in this appeal and the ground taken there is that the order of the Court below as to costs is arbitrary. The Court below dismissed Suit No. 40 of 1935 but gave costs of the suit to the plaintiff. The reason for costs not following the event, which is the normal course of things was that the origin of the defendant's success was the deed of gift and that deed was executed after the plaintiff had already started litigation.

(3.) This does not appear to us to be any judicial reason whatsoever because the litigation that was started was not in connexion with the sale which was the subject of suit No. 40 of 1935, but a different suit altogether, namely Suit No. 30 of 1935. The plaintiff knew of both the sales and yet he chose to bring no suit in respect of the sale of 23 October 1934 which was the subject of Suit No. 40 of 1935 before the deed of gift and therefore, there was no reason why the defendant who won should, not have been given the costs of the suit and why the plaintiff should have been given his costs. We are clearly of the opinion that the cross-objections should be allowed and that the plaintiff should not get his costs from the defendant and that on the contrary the defendant should have got his costs from the plaintiff. But when we look at the cross-objections we find that they are valued at Rs. 183-4-0 and the court-fee also has been paid on that amount. The plaintiff's costs in the Court below were Rupees 183-4-0 and the defendant's costs were Rs. 168-8-0; but as the cross-objections have been valued at Rs. 183- 4-0 the utmost that we can do while allowing the cross-objections is to direct that the order of the Court below ordering that the defendant should pay the costs of the plaintiff should be deleted and that the parties should bear their own costs of the suit. We allow the cross-objections with costs.