1. By a document executed on the 7th of August 1920 purporting to be a sale-deed, certain property was transferred by one Shib Sahai in two mahals, namely, mahal Ishk Lal and mahal Ghasi Rarm.
2. The result of this transfer was to provoke two suits for pre-emption which have given rise to the two appeals before us. In one case the plaintiff was Challoo, who is the appellant in Second Appeal No. 1187. In the other case the plaintiff was Bhullan Singh, the appellant in Second Appeal No. 1188.
3. It was found by the Courts below that a custom of pre-emption existed in this village.
4. Both Courts, however, dismissed both the suits on the ground that the document of the, 7th of August 1920, which purported to be a not evidence of a real transaction of sale giving rise to a right to pre-empt.
5. The decision of the Courts below is attacked here on the ground that they were both wrong in allowing evidence to be given regarding the nature of this deed. It has been strongly contended that, on the language of Section 92 of the Indian Evidence Act, it was not open to the vendee to raise this question or to adduce any evidence for the purpose of showing that a document which on its face purported to be a deed of sale was in reality a deed of some other character.
6. That contention, however, appears to us to be unsustainable, regard being had to the language of Section 92. That section excludes the admission of any oral agreement or statement as between the parties to an instrument or their representatives in interest for the purpose of contracting, varying, adding or subtracting from its terms. In no way can it be contended that either of the plaintiffs in these suits was a party to the instrument or was in any sense a representative of any party to the instrument, and we hold, therefore, that it was open to the vendee as against the plaintiff, to produce evidence for the purpose of showing that the document upon which the two suits were based was not, in fact, a document of sale.
7. The evidence which was led before the Court may be put shortly as follows: It appears that Shib Sahai, who poses as the vendor in this dead, had, as far back as the year 1903, brought a suit for arrears of rent against the persons who are now described in the document as the purchasers.
8. That suit apparently failed on the ground that Shib Sahai could not establish in fact that the defendants in the suit for arrears of rent were his tenants. It further appears that the defendants in that suit denied Shib Sahai's title. Nothing further was done until about the year 1918 when the Settlement operations were going on. It seems that an application was made by the adversaries of Shib Sahai to the Settlement Officer claiming that they might be entered as proprietors.
9. Notice of this application was apparently given to Shib Sahai and, on the 28feh of April 1919, the application of the defendants was disallowed.
10. Thereupon, the defendants, that is, Khushi Ram and others, filed an appeal in the Revenue Court contesting the decision of the first Court. The Appellate Court ordered a remand of the case and it was while this matter was under disposal that the document in question was executed.
11. The case for the defendants was that the deed, although it purports to be a deed of sale, was not in reality a deed of sale but merely a relinquishment by Shib Sahai of whatever claims he had still left over the property in consideration of payment to him of a sum of Rs. 2,500.
12. We may note that the plaintiffs admit that the property described in this document of the 7th of August 1920 is worth Rs. 10,000. The defendants, on the other hand, say that it is worth Rs. 14,000.
13. The Courts below came to the conclusion that the document, in reality, amounted to nothing more than a settlement of the dispute between the parties which was then pending in the appeal. Shib Sahai agreed to withdraw his claim on payment of the sum of Rs. 2,500 and this was effected by the execution of the document now in question. We think that the Courts below were right in taking this view of the case. We are quite satisfied that the evidence which was led for the purpose of showing the character of the document was admissible and we also agree that the Courts have come to a correct conclusion on the facts. The result, therefore, is that both these appeals fail and are dismissed with costs.