Beg Raj and Another vs Chetan Singh and Others

M.S. Liberhan, J.—The Appellants filed a suit for possession of land measuring 10 kanals, claiming right of pre-emption being co-sharers The decree dated 28-7-1979 for declaration that the sale dated 11-3-1969 by Surja in favour of Babu and Gurjant Singh, was benami for Chetan Singh, was contrary to the factual position. The decree was alleged to be amounting to sale in favour of Chetan Singh.

The Respondents controverted the allegations. It was alleged that Chetan Singh was a close and near relation of Babu and Gurjant Singh, the entire consideration was paid by him, the sale dated 11-3-1969 was benami the real owner being Chetan Singh. The Appellants were alleged to have purchased 2 kanals of land on 5-6-1980 only in Khewat No. 7, Khatauni No. 1 so their right of pre-emption was only with respect to their share in the Khewat with respect to which they were co-sharers. Right of pre-emotion with respect to entire sale was denied. The present value of the land was stated to be Rs. 1,50,000/-. Non maintainability of suit misjoinder of parties, undervaluation of the property were alleged. In the event of decree compensation for improvements and expenses incurred by Chetan Singh for execution of sale deed were also claimed. The following issues were framed:-

Whether the Plaintiff have superior right to pre-empt the alleged sale in question ? O P P

Whether the sale price was fixed in good faith and was actually paid by the vendees to vendors ? O P. D.

If issue No. 2 is not proved, what was the market value of the suit land at the time of alleged sale ? O P. Parties

Whether the suit is not maintainable in the present form ? O. P. D.

Whether the suit is barred by time ? O. P. D.

Whether the Defendants are entitled to special costs ? O. P D

7 Whether the Defendants have effected the improvements in the suit land ? If so, to what extent and its effect ? O. P. D.

Whether the suit is bad for mis-joinder of causes of action ? O P. D

Whteher the suit is not valued properly for the purposes of court-fee and jurisdiction ? O. P. D.

Relief

The trial Court found that the Plaintiffs had a superior right of pre-emption being co-sharers. The decree dated 28-7-1979 was not a transfer, therefore, the question of consideration did not arise. Market value was not assessed. The suit was held non-maintainable in the present form Issues Nos. 5 to 9 were not passed in view of the above findings. The suit was accordingly dismissed.

On appeal it was found that the Plaintiffs had a right of preemption only with respect to Khewat No. 7, Rectangle No. 4 Khatauni No 9, i. e., land in which they were co-sharers. Decree dated 28-7-1979 did not amount to sale, thus the findings of the trial Court were confirmed. The sale transaction dated 11.3.1969 was held benami. Market value of land was held at Rs. 1,30,000/-. The appeal was dismissed.

In this second appeal it is urged that the finding that the decree dated 28-7-1979 was not a sale cannot be sustained because the decree was a collusive one and suffered by consent. As per Chetan''s statement, he was eleven years of age on 11-3-1969, so it could not be benami, there was no evidence with respect to his relationship with Babu and Gurjant. the alleged vendees The facts of the resources of Chetan were not pleaded, the registered sale deed was not got rectified, the source of money was not proved, hence, the decree be treated as a sale. It is further urged that the decree dated 28-7-1979 is inadmissible in evidence because it amounts to a transfer of the interest of immovable property of more than Rs. 100/- and without registration the same cannot be looked into. In support of this contention, the learned Counsel for the Appellants has relied upon Ranbir Singh v. Shri Chand 1984 P. L. J. 562., The evidence with respect to the transfer being benami cannot be read as there were no pleadings.

The learned Counsel for the Respondents controverted the said submissions. In the preliminary objections as well as in the additional objections it was specifically pleaded that Babu and Gurjant Singh were the benamidars and the real owner under the sale dated 1-3-1969 was Chetan, thus, no error had been committed by the trial Court in admitting the evidence. It is well-settled that it is the fact which is to be pleaded, not the evidence. The parties were conscious of their respective case and their evidence with respect to sale being benami was recorded without any objection at any stage. Issue was there No objection of the absence of plea can be taken. The relationship of Chetan with Babu and Gurjant Singh having not been disputed no evidence was required to prove the marriage of Chetan with the father''s sister of Babu and Gurjant Singh. No issue relating there to was framed inasmuch as the factum of relationship was never in dispute. It is not disputed that Babu and Gurjant Singh had no source of income It is proved on the record that the entire consideration for the purchase of the land in 1969 was given by Chetan. Chetan''s possession has been proved from the revenue record. There was no error in the registered sale deed, the rectification could not be effected nor was-needed. It was a benami transaction which is not unknown to law. It was urged that the consent decree passed on 28.7.1979 holding Chetan to be the real owner and Babu and Gurjant Singh only benami-dars required no registration as it does not transfer any interest in any immovable property. No title was created by this decree. It had only recognised the title of Chetan which was already with him. Ranbir Singh v. Shri Chand (supra) is neither pari materia on facts nor on law with the facts and law applicable in the present case. The only evidence led by the Appellants to prove that the decree dated 28-7-1979 was a sale, was that the Plaintiffs'' witnesses had stated that they heard about the sale by Babu and Gurjant Singh of the land to Chetan. They were neither the witnesses to the sale transaction nor were in a fiduciary relationship with the parties, nor claimed special or particular means of knowledge. Thus evidence being only hearsay is inadmissible There is no evidence on the record to prove that the decree dated 28-7-1979 amounted to sale. The learned Courts below after appreciating the evidence and going through the record, came to a finding that the sale dated 11-3-1969 was a benami transaction and Chetan was the real vendee. Babu and Gurjant Singh were only benamidars. The decree deted 28-7-1979 does not amount to a sale. The suit for preemption was held not maintainable.

The contentions raised by the learned Counsel for the Respondents have force and I agree with the fame. The finding that the decree dated 28-7-1979 does not amount to a sale is concurrent finding of fact and no substantial error in arriving at the said finding of fact has been pointed out

8 In view of my above observations and finding that the decree dated 37-7-1979 was not a sale, I need not go into the other findings of the lower appellate Court, i. e to the extent to which the Appellants had a preferential right of preemption. The market-value of the land at the time of passing of the decree was not challenged.

No other point has been pressed.

For the reasons recorded above, the appeal is dismissed with no order as to costs. The judgment and decree of the Coutrs below are affirmed.