Punjab-Haryana High Court
Fateh Singh vs Het Ram on 7 February, 1995
Equivalent citations: (1995)111PLR223
Author: H.S. Bedi
Bench: H.S. Bedi
ORDER H.S. Bedi, J.
1. The appellant Fateh Singh, who was one of the defendants in the suit, has filed the present appeal against the judgment of reversal made by the Additional District Judge, Bhiwani, decreeing the suit of the plaintiff-respondent Het Ram.
2. The facts of the case are that one Rati Ram who was the original owner of the suit land measuring 19 Kanals 11 Marlas sold the same to Fateh Singh vide sale deed dated 20.3.1986. This sale deed was challenged by way of a suit for pre-emption by Het Ram who claimed that he had the pre-emptive right to purchase the land in question as he had been a tenant thereon for almost 15 years. In reply to the notices issued in the suit, the vendee i.e. Fateh Singh denied that Het Ram was a tenant on the land in question and as such entitled to pre-empt the sale. The trial Court after a minute appreciation of the evidence came to conclusion that the reliance of the pre-emptor on the Khasra girdawari of the year 1986 for the hari crop or on the affidavit sworn by the vendor Rati Ram admitting Het Ram to be his tenant after the sale, was misconceived. The Court observed that the Khasra girdawari in question was recorded shortly before the sale and as such could not be relied upon and that the evidence of Rati Ram vendor was also not liable to be believed as his stand had been vacillating throughout as he had at one stage dined the tenancy of the pre-emptor whereas in the affidavit sworn in the suit he had deposed that the pre-emptor had been a tenant on the land for a long period of time. The trial Court also held that the Khasra girdawari (Exhibit P-3) was void ab initio as it had changed the name of the pre-emptor without giving notice to the earlier tenant Rotan Singh who had been recorded as a tenant thereon.
3. Aggrieved by the judgment of the trial Court, the unsuccessful plaintiff preferred an appeal before the Additional District Judge, Bhiwani, who reversed the judgment of the trial Court and held that the tendency of the pre-emptor was proved from the Khasra girdawari in question, nehri girdawaris (Exhibits P-5 to P-11) and the receipts of abiana (Exhibits P-13 to P-17) showing that the pre-emptor had been making payment of the amount in question. Reliance was also placed on parchis (Exhibits P-20 and P-21) issued by the Irrigation Department as also the affidavit (Exhibit P-22) of Rati Ram referred to above. The first appellate Court accordingly allowed the appeal and decreed the suit. Aggrieved thereby, the vendee has filed the present appeal.
4. It has been argued by Mr. M.L. Sarin, learned Counsel for the appellant, that the only point which had been argued before the first appellate Court was with regard to issue No. 1 and all other matters had been given up. He has argued that the documents relied upon by the lower appellate Court did not prove the tenancy of the pre-emptor as the Khasra girdawari for the crop of hari 1986, on which primary reliance had been placed, was recorded shortly before the date of the sale on 20.3.1986. He has also urged that no reliance could be placed on the nehri girdawaris (Exhibits P-5 to P-11) as in some of them the details with regard to the land had not been mentioned whereas in the others the pre-emptor has been shown as the owner of the land and not as a tenant thereon. The objection with regard to Exhibits P-13 to P-17 was that the land in question had not been identified in these documents and in view of the above no reliance could be placed on Exhibits P-20 and P-21 as well. Supporting the judgment of the trial Court, counsel has urged that the affidavit of the vendor Rati Ram (Exhibit P-22) could not be relied upon as he had been taking a vacillating stand on different occasions inasmuch as that he had denied the tenancy of the pre-emptor at one stage and admitted the same on other occasions.
5. I have considered the arguments of the learned counsel for the parties. It is well settled that the right of pre-emption is a piratical right and all legal means necessary for defeating it can be resorted to. I am of the opinion that the documents relied upon by the lower appellate court do not conclusively prove that the pre-emptor was a tenant on the suit land at the relevant time. Had the pre-emptor been a tenant for 15 years or so as alleged, some documentary evidence to considerably show this long period of tenancy ought to have been available. The Khasra girdawari recorded in 1986 shortly before the sale of the land ought not to have been relied upon as it was a suspicious document by itself. Moreover, no presumption of truth can be attached to Khasra girdawaris in view of Section 44 of the Punjab Land Revenue Act. The objections with regard to the other documents taken by the learned counsel for the appellant are also well-founded. It is significant that Exhibits P-20 and P-21 also pertain to the year 1986 i.e. after the date of the sale in question. No reliance can also be placed on the affidavit of Rati Ram on the reasoning that it is an afterthought and 'was created with the intention of helping the pre-emptor. The present appeal is accordingly allowed and the judgment of the lower appellate Court is set aside, with the result the suit of the pre-emptor is dismissed, with no order as to costs.