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2015 DIGILAW 2158 (PNJ)

Girraj s/o Ramji Lal v. Shiv Charan

2015-12-03

K.KANNAN

body2015
JUDGMENT Mr. K. Kannan, J.: - The defendant is the appellant in the second appeal. The suit had been filed by the plaintiffs seeking for enforcement of right of pre-emption and challenging the sale made by the owners of the property in favour of the defendant. The plaintiffs’ contention was that the plaintiffs and their predecessors had been holding possession of the property as gair marausi tenants and the property has been sold by the original owners without reference to their pre-emption rights which is not binding on them. The defence was that the suit was barred by limitation. It was the further contention that the property had not been cultivated and treated as banjar kadim. It was also the contention that the reference in the plaint that the property belonged to Kapil Mathur was not correct. On the other hand, Kapil Mathur who was the son of Daya Kishan was a power of attorney and the original owners were only Daya Kishan and Padamnath son of Manohar Lal. 2. The trial Court examined the issue of whether the property was banjar kadim or it was a cultivable agricultural land. The Court made reference to the fact that the banjar kadim would require the property to be left in a state of uncultivation for more than eight crops but in this case there had been revenue entries shown through Ex.P1 to P6 that clearly revealed that the crops had been raised in the property. The Court also made an adverse reference on the attempt of the defendant to have the property inspected by a commissioner but later it was withdrawn. The defendant was merely attempting to rely on a report given by revenue officials which were against the evidence given by a Patwari PW4 that he had himself caused revenue entries to be made referring to the actual cultivation of the property. This reasoning was also accepted by the Appellate Court. I would find myself in complete agreement with the line of reasoning adopted by the Courts below. 3. The other important contention was that the owners of the property had not been impleaded and that the person who the plaintiffs were stating as the owner was not really the owner but he was the power of attorney. I would find myself in complete agreement with the line of reasoning adopted by the Courts below. 3. The other important contention was that the owners of the property had not been impleaded and that the person who the plaintiffs were stating as the owner was not really the owner but he was the power of attorney. I do not think that there is any merit in this contention as well, for the suit had been filed against the person in whose favour a sale deed had been executed and the defendant was interested in contending that he had obtained a right to the property by virtue of purchase. If the plaintiffs were, therefore, trying to enforce a right of pre-emption and the purchaser had been made as party, he alone could be the proper person to defend the title. This position was taken up by the Supreme Court in Hazari and others Vs. Neki (dead) by his LRs and others, (1968) 2 SCR 833 where the Court held that vendor may be a proper party in a pre-emption suit and not a necessary party that could entail dismissal. 4. It was also the plea made that the plaintiffs had not proved the payment of batai. The Court had made reference to a decision in Piara Singh VS. Baldev Singh and others, 2013(1) PLJ 209 to hold that the only point that has to be seen is whether there was rent payable for the property and if the tenants had not paid the rent, it would give room for an action for recovery of rent but will not result in forfeiture of the right of tenancy itself. The judgment is squarely applicable and correctly applied by the Courts below. 5. There was also a contention made by the learned counsel appearing for the appellant that the term gair marausi itself means that the person is in unlawful possession and that he cannot claim himself to be a tenant. I reject the contention as opposed to the general understanding of the term gair marausi. The plaintiffs’ status as tenants was not really seriously in challenge but the contentions however were that the rent was not being cultivated and that the original owners of the property had themselves not been referred to correctly. I reject the contention as opposed to the general understanding of the term gair marausi. The plaintiffs’ status as tenants was not really seriously in challenge but the contentions however were that the rent was not being cultivated and that the original owners of the property had themselves not been referred to correctly. None of these contentions has any bearing to the new contention which is being raised before this Court that gair marausi expression itself does not connote a status of tenancy. Such a contention is untenable. 6. There is a further contention that the suit is barred by limitation. I find that the sale was executed on 30.03.2012 and the suit was filed on 31.03.2013 that was the last date of limitation. The time for institution of suit for enforcement of pre-emption claim will have to be made within a period of 12 months or one year and the commencement of the period of limitation will be from the day next to the sale and the last date for completion of one year would be the date of completion of actual one year. It meant that the suit had been filed on the last date of limitation and the suit could not be defeated. 7. The judgments of the Court below are sustained and the second appeal is dismissed.