Punjab-Haryana High Court
Virsa Singh And Ors. vs Biswa Nath Bhalla And Ors. on 19 October, 1970
Equivalent citations: AIR 1971 PUNJAB AND HARYANA 362
JUDGMENT
1. This appeal arises out of a suit for possession by pre-emption on the allegation tat the plaintiff - pre-emptor has a superior right to pre-empt the sale in dispute, being son of the vendor. The vendees resisted the suit and on the pleadings of the parties, the trial Court framed the following issues -
1. " Whether the plaintiff has got a superior right of pre-emption ?
2. Whether the defendant - vendees were tenants under the vendor in the suit land at the time of sale ? If so, its effect?
3. Whether the suit is bad for partial pre-emption?
4. Whether the suit is Benami and collusive ?
5. Whether the defendant-vendees have effected improvements on the suit land before the institution of the present suit? If so, to what amount ?
5-A Whether any portion of the suit land was waste land before the institution of the suit and has since been reclaimed by the vendee-defendants? If so its effect ?
6. Whether the suit is time barred ? If so, qua whom and effect thereof?
7. Whether the suit is not properly valued for purposes of court-fee and jurisdiction?
8. Whether the sale price of the suit land was fixed and paid in good faith?
9. In case issue No. 8 is not proved, what was the market value of the suit land at the time of its sale?
10. Whether the defendant-vendees are entitled to stamp and registration charges? If so, to what amount?
11. Relief."
The trial Court, as a result of its finding on issue No. 2 to the effect that the vendees were the tenants of the vendor on the date of sale of the suit land to them, dismissed the suit of the plaintiff. However, he succeeded in appeal. Hence this second appeal at the instance of the vendee-defendants.
2. Learned counsel for the vendee-appellants has canvassed two propositions before me (1) that the finding of the lower appellate Court that the vendees were not tenants on the suit land on the date of sale is vitiated for the reason that the lower appellate Court misread the evidence on the record, & (2) that the finding of the lower appellate Court that the plaintiff respondent had a superior right to pre-empt the sale, being the son of the vendor, is vitiated, as the same is based on evidence which was inadmissible in law. In my opinion, there is no merit in either of the two contentions raised by the learned counsel for the appellants.
3. As regards the first contention raised by the learned counsel for the appellants, I do not find any misreading of the evidence on the part of the lower appellate Court. In this connection the learned counsel has urged that in Rabi 1960, Sohal Lal son of Paras Ram son of Gobind Charan Singh son of Man Singh son of Chain Singh son of Amar Singh son of Gain Singh etc. are recorded as Ghair Mauroosian Batal Tehara Har Kisam in equal shares, and out of them Charan Singh and Chanan Singh happen to be the vendee defendants and he maintains that although in column meant for Kharif 1960 and Rabi 1961 the important entry in 'Chanan Singh, Joginder Singh son of Amar Singh 2/3rd, and Charan Singh son of Man Singh 1/3rd, Ghair Mauroosian under Jokha Singh son of Baga Singh Pattedars, Habri Tehsil Kaithal for Rs. 1,200/- payable to Jagan Nath and Joginder etc. Mauroosian Tebal Pattedar, and in Rabi 1963, the names of Sadha Singh and others referred to above appear with the same entry and the Khasra Girdawaris meant for Kharif 1964 onwards show that in the column of ownership, name of Jagan Nath son of Sunder Dass is recorded, in the column of cultivation, the names of Sadha Singh son of Kehar Singh, Kartar Singh, Sawaran Singh and Rattan Singh, Sawaran Singh and Rattan Singh as Pattedars under the owner of Rs. 1,200/- are mentioned, yet in view of the entry in the same column to the right hand side in red ink with reference to report No. 266, dated 8-1-1968 of the Patwaris Roznamcha, relating to the correction of the Girdawari in favour of the vendee-appellants, the appellants should be considered as tenants at the relevant time i.e., in the year 1965.
4. In my opinion, the lower appellate Court has taken into consideration all the facts and it is clear from the judgment of the lower appellate Court that the application for correction of Khasra Girdawaris was moved on 8-1-1968 about twenty days before the decision of the case by the trial Court and on that very date, the order correcting the said Khasra Girdawaris was passed ex parte i.e., behind the back of the pre-emptor and the vendor. The fact that the application for correction was moved on 8-1-1968 and was decided on the same date, without notice to the pre-emptor and the vendor, was not disputed before the lower appellate Court. These facts, as quoted by the lower appellate Court, in my view, must be correct, as it had summoned the original record, for its perusal. the manner in which the application for correction was moved almost three years after the sale of the suit land to the vendees and just about the time when the case was nearing decision and the manner in which it was decided leaves much to be said and no weight, in my opinion, should be attached to this kind of correction of Khasra Girdawaris.
5. The learned Councel for the appellants then argued that since in the year 1960 some of the vendees had been shown as the tenant under the vendor and in 1960-61, they were shown as subtenants under the Pattedar, so no weight should be attached to the entries in the later Khasra Girdawaris which have not shown the vendees as the tenants, without there being a report in the Patwaris' Roznamcha about the change which could have show as to how the tenants left the possession of the land, as normally these days the tenants by themselves do not leave the possession and by force they cannot be dispossessed without the landlord taking recourse to the provisions of the relevant Act. I do not find any merit in this contention of the learned counsel. It is not a case of a stray entry. The entries continued for a period of 7/8 years and it also cannot be presumed that the vendees had no notice of the wrong entries, especially when the suit land was purchased by them in the year 1965 and like any prudent purchaser they would have looked into the revenue record to satisfy themselves about the title of the vendor and that enquiry must have disclosed to them the true state of affairs; yet for long three years, they never made grievance of that fact. They moved the application for correction of Khasra Girdawaris only when the case had ripened for the decision. This fact, coupled with the manner in which they got the correction of the Khasra Girdawaris manoeuvred on the very date of the application, discloses lack of bona fide in their assertion that they were ignorant of the entries in the revenue record of all these years.
6. In view of what is stated above, I am of the opinion that the lower appellate Court has correctly read the evidence and correctly appreciated the facts and there is no scope for interference with its finding of fact.
7. In regard to his second contention, the learned counsel for the appellants has urged that the relationship of pre-emptor with the vendor is in dispute, and to decide as to whether the pre-emptor is the son of the vendor, the evidence that is admissible under Section 50 of the Evidence act has to be of a person, who is in a position to know the relationship of the pre-emptor with the vendor, and offers evidence of his conduct which expresses an opinion about the relationship in dispute. The learned counsel has urged that the evidence of the plaintiff - pre-emptor himself cannot be considered, for one thing that it will be of an interested nature and the other that he cannot be considered to be a person who has the special means of knowledge about the relationship question as that it itself is in dispute. And the evidence of Perm Parkash P. W. 2 does not fulfil the test laid down in Section 50 of the Evidence Act to make it admissible in law, as this witnesses does not offer any evidence about his opinion of the relationship of the pre-emptor with the vendor as expressed by his conduct. The requirement of Section 50 of the Evidence Act, as also its inter-relation with Section 60, has been authoritatively considered and decided by their Lordships of the Supreme Court in Dolgobinda Paricha v. Nimal Charan Misra, AIR 1959 SC 914, wherein it was observed as follows :-
"The conduct or outward behaviours must be proved in the manner laid down in Section 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it, if it is something which can be heard, then it must be proved by the person who heard it; and son on. The conduct must be of the person who fulfils the essential conditions of Section 50, and it must be proved in the manner laid down in the provisions relating to proof. That portion of Section 60 which proves that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of Section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the fact which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of Section 60. This is the true inter-relation between Section 50 and Section 60 of the Evidence Act ........................"
Their Lordships of the Supreme Court have also approvingly quoted in their judgment in Dolgobinda Paricha's case, AIR 1959 SC 914 the following observations made in Chandu Lal Agarwala v. Bibi Khatemonnessa, AIR 1943 Cal 76 :
"It is only 'opinion as expressed by conduct' which is made relevant. This is how the conduct comes in. the offered item of evidence is 'the conduct', but what is made admissible in evidence is 'the opinion', the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision ; its immediate effect is only to move the Court to an intermediate decision ; its immediate effect is only to move the Court to see if this conduct establishes any 'opinion' of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer 'the opinion', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the 'opinion'.
"When the conduct is of such a tenor the Court only gets to a relevant piece of evidence namely, 'the opinion of a person'. It still remains for the Court to weigh such evidence and come to its own, opinion as to the 'factum probandum' - as to the relationship in question."
When the evidence of Prem Parkash P.W. 2 is considered in the light of the observations made by their Lordships of the Supreme Court in the above-quoted decision, then in my opinion it does measure up to the test laid down in Section 50 of the Evidence Act. The deposition of Prem Parkash P.W. 2, when translated into English, reads like this :
" I know the plaintiff. He is son of Jagan Nath vendor, who is my father-in-law, and the plaintiff is my real brother-in-law. The plaintiff calls Jagan Nath his father and Jagan Nath in turn calls him his son. I hold a general power of attorney from my father-in-law Jagan Nath vendor and it is I who had sold the land to the vendees as a Mukhtiar-i-Am of Jagan Nath ..........................."
The above evidence discloses two facts (1) that the witness being the son-in-law and being Mukhtiar-i-Am of the vendor was in a position to know the relationship of the pre-emptor and the vendor, and (2) that the witness has deposed to the conduct of his father-in-law, the vendor, as also to his own conduct.
8. At this stage, the learned counsel for the appellants has referred me to a decision of this Court in Ajaib Singh v. Mann Singh, 1968-70 Pun LR 83, wherein Pandit, J. has held that where a person merely says that he saw the vendor calling the pre-emptor as his son, that does not satisfy the test laid down in Section 50 of the Evidence Act, which requires the evidence of opinion based on conduct. In that case, the witness had only talked of the conduct of the vendor and had not offered any evidence of opinion resulting from his own conduct towards the persons whose relationship was in dispute. In the present case, the witness has not only given evidence of opinion expressed by the conduct of the vendor and the pre-emptor qua each other, but has also given evidence of his own opinion expressed by his conduct of treating the pre-emptor as his real brother-in-law, which conduct is grounded on the belief or conviction in the truth of the alleged relationship of the pre-emptor with the vendor. So the ratio of the decision of this Court given by Pandit, J. in Ajaib Singh's case, 1968-70 Pun LR 83 is not applicable to the facts of the present case and that decision is of no avail to the appellants. Consequently I hold that the lower appellate court rightly took into consideration the testimony of Prem Parkash for holding that the pre-emptor is the son of vendor.
9. For the reason stated above, this appeal fails and is dismissed, but there is no order as to costs. at the oral request of the counsel for the appellant leave to filed L. P. A. is granted.
10. Appeal dismissed.