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2014 DIGILAW 399 (PNJ)

Imdad v. Chahat

2014-02-19

HEMANT GUPTA

body2014
JUDGMENT HEMANT GUPTA, J. (ORAL) The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court on 21.12.1996, whereby the defendant’s appeal was accepted and the suit claiming preemption of the land sold on the basis of tenancy was dismissed. The defendant purchased land measuring 4 kanal 10 marlas for a sale consideration of Rs.8100/vide registered sale deed dated 28.12.1989. The plaintiff sought to preempt the said land claiming to be sitting tenant on the said land from the time of his predecessor in interest. The said claim of the plaintiff was resisted by, inter alia, pleading that the sale was effected with the knowledge of the plaintiff and that the plaintiff has got no superior right of preemption. Both the parties went to the trial on the following issues: “1. Whether the plaintiff has got superior right of preemption in respect of the impugned sale? OPP 2. Whether the plaintiff has got no locus standi to file the present suit? OPD 3. Whether the suit is barred by limitation? OPD 4. Whether the suit is bad for partial preemption? OPD 5. Whether the answering defendant is entitled for stamp and registration charges in addition to sale price? OPD 6. Relief.” After considering the oral and documentary evidence on record, the learned trial Court returned a finding that the plaintiff was a tenant. The learned Trial Court relied upon jamabandi for the year 198889 (Ex.P1) and khasra girdawari (Ex.P2). In the said documents, the plaintiff is recorded to be in possession of the suit land comprising in Rect.No.109 Khasra No.7/1 measuring 3 kanals 12 marlas and Khasra No.6/3 measuring 4 kanals 10 marlas as tenant though the sale was only in respect of land measuring 9 marlas of khasra number 6/3. The learned trial Court found that the copies of jamabandi (Ex.P8) and khasra girdawari (Ex.P7) for the year 1988-99 were supplied to the plaintiff on 10.12.1990, wherein the plaintiff is recorded to be in cultivating possession of the suit land as tenant. It is also noticed that the order of the Assistant Collector 2Grade, Nuh dated 31.08.1992 (Ex.D3) correcting khasra girdawari in respect of possession of 9 marlas of land comprising in Killa No.6/3 since Rabi 1991 was passed during the pendency of the suit, therefore, the defendant was not given any benefit of the said order. It is also noticed that the order of the Assistant Collector 2Grade, Nuh dated 31.08.1992 (Ex.D3) correcting khasra girdawari in respect of possession of 9 marlas of land comprising in Killa No.6/3 since Rabi 1991 was passed during the pendency of the suit, therefore, the defendant was not given any benefit of the said order. However, in appeal on behalf of the defendant, the first Appellate Court returned a finding that the suit land comprises of Khasra No.7/1 (312) and 6/3 (09). The plaintiff appellant relies upon Exs.P8 to P10 in support of its claim of tenancy over the suit property at the time of sale. In jamabandi (Ex.P9) for the year 197374, the possession of Kamrudin, father of the plaintiff, is reflected over khasra No.6/3 measuring 4 kanals 10 marlas and not over khasra No.7/1. Infact, Khasra No.7/1 is reflected to be in cultivating possession of the owner. In view of the said fact and the fact that after the purchase of suit land, the khasra girdawari entries have been corrected on an application filed by the defendant. In the present second appeal, I have gone through the entire evidence on record with the assistance of the learned counsel for the parties. The first jamabandi on record is for the year 196869 (Ex.P10). In the said jamabandi, khasra No.6/3 measuring 4 kanals 10 marlas alone is reflected to be in possession of Kamrudin, father of the appellant. In the jamabandi for the year 197374, again the land comprises in khasra No.6/3 alone is reflected in the possession of Kamrudin. However, it was in the jamabandi for the year 198889, the land comprised in Khasra No.7/1 was initially recorded to be in possession of the appellant, as tenant, but such entry was ordered to be corrected vide Ex.D3. It is not the case of the appellant that he came in possession as a tenant over Khasra No.7/1 in recent past. The case set up is that he is in possession since last 40 years. Therefore, in the absence of entry of tenancy in the jamabandi for the year 196869 and 197374, the claim of the appellant that he is tenant over the entire land sold to the defendant is clearly not made out. Since the appellant is not reflected as tenant over the entire land sold, he cannot seek preemption of the suit land. Therefore, in the absence of entry of tenancy in the jamabandi for the year 196869 and 197374, the claim of the appellant that he is tenant over the entire land sold to the defendant is clearly not made out. Since the appellant is not reflected as tenant over the entire land sold, he cannot seek preemption of the suit land. Consequently, I do not find any patent illegality or irregularity in the judgment and decree passed by the learned first Appellate Court, which may give rise to any substantial question of law in the second appeal. Dismissed.