Sat Paul Bhandari vs Mehar Singh and Another

Shamsher Bahadur, J.—The suit of the Plaintiff for pre-emption having been decreed by the Additional District Judge, Patiala, who reversed the judgment and decree of the Subordinate Judge, Rupar, dismissing it, the Defendant has come in appeal to this Court.

The suit property consisting of a house in Rupar at fine belonged to one Paro, who later made a gift of it in favour of Lajwanti. The donee sold this property to the Appellant, Sat Pal Bhandari, for Rs. 1,000 on 22nd of February, 1964. A suit for pre-emption was brought by Mehar Singh Plaintiff on 22nd of February, 1985, on the ground that he had been in occupation of the house as a tenant for some years. A number of pleas were raised in defence and the following issues were framed by the trial Judge:

(1) Whether the Plaintiff has superior right of pre-emption?

(2) Whether the custom of pre-emption prevails in the locality in which this property is situated?

(3) Whether the Defendant made improvements and if so of what value?

(4) Whether the Defendant is entitled to stamp and registration expenses? If so to what amount as such?

(5) Reliefs.

We are no longer concerned with issues (3) and (4) as these do not form the subject-matter of the appeal. Though the trial Judge found in favour of the Plaintiff on the first issue, and held that he had a superior right to pre-empt being a tenant of the suit property, he found that the custom of pre-emption did not prevail in the locality. The suit was dismissed by the first Court on 16th of January, 1967.

In appeal by the Plaintiff, the District Judge affirmed the finding which was challenged by the Defendant-vendee with regard to the legal status of the Plaintiff and held that he had been proved to be a tenant. The lower appellate Court, further found that the evidence adduced in the case pointed out to the conclusion that the custom of pre-emption prevailed generally in the town of Rupar and therefore, the suit was decreed in favour of the Plaintiff. It may be mentioned that the subject-matter of issue No. 3 regarding improvements was not pressed before the trial Judge, nor was it agitated in appeal. On issue No. 4, the decision of both the Courts was in favour of the Plaintiff pre-emptor and that finding is no longer a live issue between the parties.

Mr. Wasu, the learned Counsel for the vendee-Appellant has contested the concurrent findings of the Courts below on the first issue and the reversal of the trial Court''s decision by the lower appellate Court on the second issue.

So far as the factum of tenancy is concerned, Mr. Wasu has pointed out that the observations of the trial Judge itself with regard to certain aspects of the evidence render the finding unsustainable. It is pointed out that the lease-deed executed in favour of the Plaintiff has not been produced. It is further argued that in any event the donee Lajwanti has denied that she ever let out the premises to Mehar Singh Plaintiff. There is evidence no doubt to show that the Plaintiff was in occupation of the suit premises, but in the submission of the learned Counsel there is no evidence of any probative value to show that he was in fact a tenant. The finding of the lower appellate Court which is apparently one of fact, seems to be based on evidence referred hi the discussion of this issue. In the first place, the Plaintiff examined Rikhab Dass, Chaju Ram and Hari Nandan, who stated that the Plaintiff was a tenant. The evidence of Rikhab Dass is challenged on the ground that he is an enemy of the Plaintiff. The appraisal of the evidence, as is well-known, is not open to challenge in second appeal. The Plaintiff further relied on the document Exhibit P. 1, which is a receipt executed by Paro on 8th of January, 1958. Ostensibly, I do not see anything to discredit this document. It may be that subsequent receipts were not obtained by the Plaintiff and there is really no answer to the position taken by the tenant that the receipt Exhibit P. 1, and the admitted occupation of the Plaintiff in the suit property establish his case for tenancy. Exhibit P.B. is an entry from the assessment register of the Municipal Committee proved by Chhaju Ram. It is true that in this entry the Plaintiff is not shown to be a tenant but merely an occupier. If the Plaintiff was a tenant of Paro and indeed he must be held to be so in view of the concurrent findings of the Courts below, there is no substance in the other contention that the tenancy should have been proved to be continuing even on the transference of the property in favour of Lajwanti. There is nothing to merit a reversal of the concurrent finding of fact of the Courts below on the first issue.

With regard to the second matter, I think the argument of Mr. Wasu must prevail. Exhibit P.E. on which much reliance has been placed by the lower appellate Court is a judgment of the Subordinate Judge, Rupar, given on 24th of October, 1938. Much reliance is placed on the finding on the first issue in Exhibit P.E. which is to this effect:

On the 12th of April, 1938, Ch. Jai Ram Dass, Pleader for Defendants Nos. 1 to 3 admitted,--vide his statement of that date, that the custom of pre-emption does prevail in the locality in which the house in dispute is situate. This issue is, therefore, decided in the Plaintiff''s favour.

The findings and the observations of the Court do not lead to the conclusion which is sought to be derived from it that the custom of pre-emption prevails generally in the town of Rupar. u/s 7 of the Punjab Pre-emption Act:

a right of pre-emption shall exist in respect of urban immovable property in any town or sub-division of a town when a custom of pre-emption is proved to have been in existence in such town or sub-division at the time of the commencement of this Act, and not otherwise.

In order to prove his case the Plaintiff had to show either that the custom prevailed generally in the town of Rupar or in the particular sub-division where the property in dispute is situate. The house in dispute is located in Mohalla Pul Bazar and there is no clear proof that in that Mohalla or in the sub-division where it falls, there is a custom of pre-emption. There are documents to show that the custom of pre-emption prevails in Mohalla Chor Hattian. There is some evidence that Pul Bazar is very near to Chor Hattian. This does not mean that both Pul Bazar and Chor Hattain are in the same sub-division. The learned District Judge could not have inferred from the finding in Exhibit P.E. that the custom of preemption prevailed generally in the town of Rupar. In fact, there is a judgment of the Lahore High Court (Exhibit D. 5), where it was held by Scott Smith and Cecil Efords, JJ., on 16th of April, 1924 that:

There are judicial decisions to the effect that the custom prevails in some Mohallas of the town of Rupar. Similarly there are decisions that it does not prevail in other Mohallas. Under these circumstances there is no presumption that it prevails in any particular Mohalla of the town.

In that tease it was held that the custom of pre-emption did not prevail in Mohalla Chakla Khurd. Again, there is a decision of the District Judge, Ambala, given on 12th of January, 1917 (Exhibit D. 6) which shows that the custom of pre-emption did not prevail in Mohalla Phulchakhar. There is no warrant for the conclusion of the learned District Judge that the custom of pre-emption prevails in the town of Rupar generally. No attempt has been made to show that Mohalla Pul Bazar, where the property is situate, forms a sub-division and the custom of pre-emption prevails there. The law embodied in Section 7 of the Punjab Preemption Act is to be construed strictly and not liberally. It was pointed out by the Division Bench of the Lahore High Court in Karim Ahmad v. Rahmat Elahi and Ors. AIR 1946 Lah. 432, that though the word ''sub-division'' has not been defined in the Act, it is however, well settled that it is not in all cases synonymous with a Mohalla. The term implies a quarter of a town well-known and recognised and does not mean the streets and lanes of the town. A city may have Mohallas and Bazars and lanes with specific names but from this it does not follow that they are recognised sub-divisions for purposes of pre-emption law.

That the Plaintiff himself was not certain of his position is dear from the fact that while in the plaint it is pleaded that the custom of pre-emption prevailed in the whole town of Rupar, the observations made by the Division Bench in Exhibit D. 5 made him change this stand and a case was sought to be made that the custom of pre-emption prevailed in the locality where the house is situate. I think the Plaintiff has not been able to establish either that the custom of pre-emption prevails in the town of Rupar generally or that it obtains in Mohalla Pul Bazar. In this view of the matter, the suit has not been rightly decreed and I would accordingly allow his appeal, set aside the judgment of the lower appellate Court and restore that of the trial Court. There would be no order as to costs of this appeal.