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2009 DIGILAW 1693 (PNJ)

Phool Chand v. Saroj Bala

2009-09-24

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This appeal, is directed, against the judgment and decree, dated 11.03.2008, rendered by the Court of Additional District Judge, Ambala, vide which, it accepted the appeal, against the judgment and decree, dated 25.07.2005, rendered by the Court of Civil Judge (Junior Division), Ambala City, and dismissed the suit of the plaintiff (now appellant). 2. The facts, in brief, are that the plaintiff has, been cultivating the suit land for the last so many years, as tenant, under respondents/defendants No. 2 to 5. These defendants appointed Chuhar Ram, defendant/respondent No. 6, as their attorney, and the land, in dispute, was sold to Saroj Bala, defendant No. 1/respondent No. 1, vide a registered sale deed dated 25.06.92 for a valuable sale consideration of Rs. 20,000/-. It was stated that to ward off the right of pre-emption of the plaintiff/appellant, fictitious sale consideration of Rs. 60,000/-, was shown in the sale deed. During the pendency of the suit, Saroj Bala, sold the land to Arjan Singh, defendant No. 7/respondent No. 7, vide registered sale deed dated 30.10.2000. He was arrayed, as a party, during the pendency of the suit, vide order dated 24.11.2000. It was further stated that the plaintiff, had got a superior right to pre-empt the sale, in question, as he was tenant in the land, in dispute, under the vendors. It was further stated that no notice under Section 19 of the Punjab Pre-emption Act, was ever served, on the plaintiff, by the vendors, prior-to the sale of the land, in question. It was further stated that the defendants were called upon, a number of times, to admit the claim of the plaintiff, but to no avail. On the final refusal of the defendants, to admit the claim of the plaintiff, to pre-empt the sale, left with no alternative, a suit for possession, by way of pre-emption, was filed. 3. The defendants/respondents, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was stated that the suit was bad for partial pre-emption, and, as such, was liable to be dismissed. It was further stated that the plaintiff had not deposited, one fifth pre-emption money, within the time, and had got no right of pre- emption, over the land in suit. The relationship of landlord and tenant, between the vendors, and the plaintiff, was disputed. It was further stated that the plaintiff had not deposited, one fifth pre-emption money, within the time, and had got no right of pre- emption, over the land in suit. The relationship of landlord and tenant, between the vendors, and the plaintiff, was disputed. It was maintained, that the land had actually been sold, for a consideration of Rs. 60,000/-, which was the market value of the same. It was denied that the plaintiff had superior right of pre-emption. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck :- (i) Whether the plaintiff has superior right to pre-empt the sale in question ?OPP. (ii) Whether the suit of the plaintiff is not maintainable in the present form ?OPD. (iii) Whether the plaintiff is estopped from filing the present suit from his own act and conduct ? OPD. (iv) Whether the defendant No. 1 has spent a sum of Rs. 10,000/- on stamp and registration and scribe fee and entitled to recovery of the suit of the plaintiff is decreed ?OPD. (v) Whether the sale was for a sum of Rs. 20,000/- and not Rs. 60,000/- ?OPP. (vi) Relief. 5. After hearing the Counsel for the parties, and, on going through evidence and record of the case, the trial Court, decreed the suit of the plaintiff/appellant. 6. Feeling aggrieved, an appeal was preferred, by the defendants/respondents, which was accepted, by the Court of Additional District Judge, Ambala, vide judgment and decree dated 11.03.2008. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. I have heard the Counsel for the parties, and, have gone through evidence and record of the case, carefully. 9. The following substantial questions of laws arise in this appeal, for the determination of this Court : i) Whether the first Appellate Court recorded perverse finding, on account of misreading and mis-appreciation of evidence, that the relationship of landlord and tenant, between the plaintiff and the defendants, had already come to an end, at the time of passing the decree, in the first instance, by the trial Court ? ii) Whether the first Appellate Court, on account of misreading and mis-appreciation of evidence, recorded a perverse finding, that the plaintiff, was not entitled to the pre-emption of the ale ? 10. ii) Whether the first Appellate Court, on account of misreading and mis-appreciation of evidence, recorded a perverse finding, that the plaintiff, was not entitled to the pre-emption of the ale ? 10. The Counsel for the appellant submitted that the trial Court, was right in holding, that there was a relationship of landlord and tenant, between the parties, at the time of passing the decree, and, as such, the plaintiff had superior right to pre-empt the sale, made by the landlord, in favour of the vendees. He further submitted that the first Appellate Court, was wrong, in coming to the conclusion, that the relationship of landlord and tenant, between the plaintiff and the defendants, had come to an end, with the passing of the order of ejectment, against the former. He further submitted that the ejectment order, was passed, against the plaintiff, by the A.C. 1st Grade, on 28.04.1994. He further submitted that a revision-petition, was filed, against the said order, before the Financial Commissioner, and the matter, was remanded back to A.C. 1st Grade. He further submitted that the a fresh order of ejectment, was passed, on 09.03.2005, by the A.C. 1st Grade. He further submitted that the operation of the order dated 09.03.2005, was stayed, vide order dated 28.04.2005, and, as such, there was no ejectment order, and hence the relationship of landlord and tenant continued, between the parties. He further submitted that the first Appellate Court, was, thus, wrong, in dismissing the suit. He further submitted that the judgment and decree, dated 11.03.2008, of the Court below, was thus, liable to be set aside. 11. On he other hand, the Counsel for the respondents submitted that once the order of ejectment, was passed, by the Assistant Collector, the relationship of landlord and tenant, came to an end. He further submitted that the order of ejectment, was passed, before the judgment and decree dated 25.07.2005, rendered by the Court of Civil Judge (Junior Division), Ambala City. He further submitted that the mere fact that the operation of ejectment order of Assistant Collector was stayed, did not mean that the relationship of landlord and tenant still subsisted. He further submitted that the order of ejectment, was passed, before the judgment and decree dated 25.07.2005, rendered by the Court of Civil Judge (Junior Division), Ambala City. He further submitted that the mere fact that the operation of ejectment order of Assistant Collector was stayed, did not mean that the relationship of landlord and tenant still subsisted. He placed reliance on Ram Gopal and others v. Hira and others, 1986 R.R.R. 633 : 1985 P.L.J. 541, Rikhi Ram and another v. Ram Kumar and others, 1975 P.L.J 331 and Inder v. Kundan Lal and others, 1984 R. R. R. 573 : 1983 P.L.J. 468 in support of his contentions. He further submitted that the judgment and decree dated 11.03.2008, rendered by the first Appellate Court, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. It is settled principle of law, that this Court in the Regular Second Appeal, cannot interfere, with the findings of fact, recorded by the first Appellate Court, even if the same are grossly erroneous, until and unless, it comes to the conclusion, that the same are the result of misreading or mis-appreciation of evidence, or, non consideration of material piece of evidence. In Inders case (supra), the principle of law, laid down, was that once the ejectment order, was obtained, by the landlord, against the tenant, although not executed it puts an end to the relationship of landlord and tenant. The tenant loses the status of tenant, after the order of ejectment, and has no right to continue, in possession. Possession after eviction decree, is without an authority of law, and not as that of tenant. In Ram Gopal and others case (supra), a conditional order of ejectment, against the tenant, was passed, that he shall not be ejected, till an alternative site was provided to him. In these circumstances, it was held that, as soon as, the conditional order of ejectment, was passed, the same terminated the tenancy, and the tenant ceases to be a tenant. It was further held that physical ejectment of the tenant, against whom the order of ejectment, was passed, was not necessary to determine the tenancy. In these circumstances, it was held that, as soon as, the conditional order of ejectment, was passed, the same terminated the tenancy, and the tenant ceases to be a tenant. It was further held that physical ejectment of the tenant, against whom the order of ejectment, was passed, was not necessary to determine the tenancy. In Rikhi Ram and another case (supra), decided by a three Judge Bench of the Apex Court, the principle of law, laid down, was that the relationship of landlord and tenant ceases to exist, between the parties, after the passing of an order of ejectment. Dispossession, in execution of the ejectment order, is not necessary, for the determination of tenancy. It was further held that the pre-emptor, who claims the right to pre-empt the sale, on the date of the sale, must continue to possess that right, till the date of the decree. If he loses that right, before the passing of deree, decree for pre-emption, cannot be granted, even though he may have such a right, on the date of the suit. In view of the principle of law, laid down, in the aforesaid cases us examine, as to whether, the findings recorded, by the first Appellate Court, are correct or not. The ejectment order, was passed, against the plaintiff/appellant, by Assistant Collector, Ist Grade, on 28.04.1994. No doubt, the case was remanded back to the A.C. Ist Grade, and a fresh order of ejectment, was passed, on 09.03.2005, by A.C. 1st Grade, certified copy whereof as Ex. DX. The ejectment order, was stayed, vide order dated 28.04.2005. It means that on 25.07.2005, when the judgment and decree, was passed, by the Civil Judge (Junior Division), Ambala City, the relationship of landlord and tenant, between the defendants and the plaintiff, had already come to an end. The mere fact that the operation of the ejectment order dated 09.03.2005, was stayed, vide order dated 28.04.2005, copy whereof is Ex. P5, hardly mattered. The first Appellate Court, was, thus, right, in holding, that since at the time of passing the decree, in the first instance, by the Civil Judge (Junior Division), Ambala City, the status of the plaintiff/appellant as tenant, had come to an end, as the ejectment order had already been passed, against him, he was not entitled to pre-empt the sale. 13. 13. The (sic) findings of fact, recorded by the first Appellate Court, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgment and decree of the first Appellate Court, are, thus, liable to be upheld. The submission of the Counsel for the plaintiff/appellant, is, thus, rejected. The substantial questions of-law, depicted above are answered against the appellants. 14. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs.