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Tara Singh and ors. Vs. Ajit Pal Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 53 of 1970
Judge
Reported inAIR1972P& H285
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 27; Punjab Security of Land Tenures Act, 1953 - Sections 17-B
AppellantTara Singh and ors.
RespondentAjit Pal Singh
Excerpt:
.....for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in..........was fixed in good faith or paid? 3. if issue no. 2 is not proved what was the market value of the suit land at the time of sale? 4. whether the defendants were the tenants on the suit land at the time of sale? 5. whether the suit is barred by time? 6. whether the defendants are entitled to the registration expenses? if so, to what extent? 7. whether the suit is collusive and benami and is for the benefit of the vendor? if so, to what effect? 4. the trial court held that the plaintiff had a superior right of pre-emption, that only rs.26,800/- was proved to have been paid, that the market value of the land was not proved on the evidence on the record, that the defendants were not tenants of the land in dispute at the date of the sale that the suit was within time that the defendants were.....
Judgment:

1. This second appeal is directed against the concurrent decisions of the Courts below decreasing the plaintiff's suit for pre-emption on payment of Rs.28,913/- instead of Rs.30,000/-.

2. The land in dispute was sold by Devinder Singh to Tara Singh, Shangara Singh and Balwant Singh sons of Mit Singh, on 24th March, 1966. Ajit Pal Singh son of Devinder Singh vendor filed this suit for pre-emption alleging that only Rs.19,300/- had been actually paid. The suit was contested by the vendees. They pleaded that the sale-price had been actually paid, that the suit was barred by time, that the defendants were tenants on the land in dispute at the time of sale and that the suit was collusive and benami.

3. On the pleadings of the parties the following issues were framed:--

1. Whether the plaintiff has superior right of pre-emption?

2. Whether the sale price was fixed in good faith or paid?

3. If issue No. 2 is not proved what was the market value of the suit land at the time of sale?

4. Whether the defendants were the tenants on the suit land at the time of sale?

5. Whether the suit is barred by time?

6. Whether the defendants are entitled to the registration expenses? If so, to what extent?

7. Whether the suit is collusive and benami and is for the benefit of the vendor? If so, to what effect?

4. The trial Court held that the plaintiff had a superior right of pre-emption, that only Rs.26,800/- was proved to have been paid, that the market value of the land was not proved on the evidence on the record, that the defendants were not tenants of the land in dispute at the date of the sale that the suit was within time that the defendants were entitled to stamp and registration expenses to the extent of Rs.2,113/- and that the suit was neither collusive nor benami. An appeal was taken to the learned District Judge by the defendant-vendees. It came up for hearing before the learned Additional District Judge, Gurdaspur, and the learned Judge affirmed the decision of the trial Court. The only issues that were agitated before the learned Additional District Judge were issues 4 and 5. No other issue was raised. It may also be mentioned that an application under O. 41, R. 27 of the Code of Civil Procedure was made to the learned Additional District Judge, to take additional evidence on issue No. 7. No order appears to have been passed on this application. It also appears that at the time of arguments this application escaped the notice of the counsel for the parties or was not deliberately pressed. The learned Additional District Judge found on issues 4 and 5 against the appellants and rejected the appeal. In short, it affirmed the decision of the trial Court. The defendants being dissatisfied have come up in second appeal to this Court.

5. Mr Puri, learned counsel for the appellants, raised four contentions. His first contention is that the vendees being tenants at the date of the sale the suit is barred by Section 17-B of the Punjab Security of Land Tenures Act, 1953. Section 17-B is in the following terms:--

'17-B (1) Where, after the commencement of this Act, land comprising the tenancy of a tenant is mortgaged to him with possession by the landowner and such land is subsequently redeemed by the landowner, the tenant shall not withstanding such redemption or any other law for the time being in force, be deemed to be the tenant of the landowner in respect of such land on the same terms and conditions on which it was held by him immediately before the execution of the mortgage as if the mortgage had never been executed.

(2) Where a tenant referred to in sub-section (1) has been dispossessed by the landowner in execution of a decree or order of redemption, he shall be entitled to be restored to his tenancy in the prescribed manner on the same terms and conditions on which it was held by him immediately before the execution of the mortgage on an application made by him to an Assistant Collector of the first grade having jurisdiction within a period of one year from the commencement of the Punjab Security of Land Tenures (Amendment) Ordinance, 1958.

(3) An application received under sub-section (2) shall be disposed of by the Assistant Collector of the first grade in the manner laid down in sub-section (2) of Section 10'.

6. On facts so far as this matter is concerned, there is no dispute. The vendees were tenants of the land in dispute. They took the land on mortgage from the owner. In fact, there were number of mortgages. Later on, they purchased the entire land, the result being that their tenancy did not revive under Section 17-B. The tenancy under Section 17-B only revives if there is redemption of the mortgage. In the instant case, there was no redemption of the mortgage. If the right of redemption is extinguished by act of parties, there can be no redemption: See Section 60 of the Transfer of Property Act. In pursuance of purchase of the equity of redemption by the mortgagee-tenants, there was no question of redemption coming in at all. That being so, Section 17-B does not come into play.

7. Mr. Puri then argued that we must go by the intention of the Legislature and the intention was that a tenant becomes the owner of the land by purchase, the sale cannot be pre-empted. In the first place, the intention is to be gathered from the language of the statute. If the intention of the Legislature was that a tenancy was to subsist whether there was redemption or not, it would have used the appropriate language to that effect. It could have been provided that a tenant who purchased his land of which he is a mortgagee would still be entitled to defeat a suit for pre-emption. That is not the import of Section 17-B of the Security of Land Tenures Act. There is nothing to prevent the tenant who had purchased the land and has become its owner to sell it and that sale is pre-emptible. In any case, there is a lacuna in the Act if the contention of Mr. Puri is sound. It is not for the Court to fill the lacuna. It is for the legislature to step in.

8. As a last resort, Mr. Puri contended that the mortgages were for a term which had not yet expired and the redemption was postponed by that term. This is wholly immaterial because we are not concerned with a case of redemption. Here, the equity of redemption has been purchased by the mortgagee and the mortgages have ceased to exist. It is not a case where mortgages are sought to be redeemed.

9. For the reasons recorded above, the first contention of Mr. Puri, the learned counsel for the appellants, fails and is rejected.

10. Mr. Puri's second contention is that the application under Order 41 Rule 27 was not decided, and therefore, the judgment of the learned Additional District Judge is vitiated. By this application, additional evidence was sought to be brought on the record with regard to the plea of collusion and benami. In short, there was no cogent evidence on which this matter could have been decided in favour of the appellants by the trial Court, otherwise there was no necessity to file this application. Be that as it may it appears that no serious effort was made to press this application. The counsel as well as the Court lost sight of it altogether. In fact, issue No. 7 was not even agitated before the lower appellate Court. As already stated, only issues 4 and 5 were agitated. Therefore, this contention also fails and is rejected.

11. The third contention of Mr. Puri is that the amount of Rs.30,000/- was paid. The trial Court came to the conclusion that only Rs.26,800/- was paid. This finding was not challenged before the lower appellate Court and therefore, it is not open to the learned counsel to agitate it in second appeal. This contention also fails. It is urged that the trial Court should have found the market value. No evidence was led by the parties to enable the trial Court to come to the conclusion as to what was the market value of the land. That being so, no grievance can be made on this score.

12. The last contention of Mr. Puri is that the suit is barred by time. The argument is that when the plaint was presented in Court it was received by s subordinate official of the Court and not by the Court itself. The reason why it was received by the clerk of the court is that there was no presiding officer. The presiding officer had been transferred and the successor had not assumed office. On this matter, one has merely to refer to Rule 7(c) of Chap. 1-B of the High Court Rules and Orders, Vol. I (page 7). It is clearly provided therein:--

'The members of the ministerial establishment are strictly forbidden to receive petitions, plaints or other documents direct from lawyers and their clerks or from litigants except when the Judge is on leave and no other judicial officer is in charge of his current duties........................................'

In the present case, the Judge had been transferred and the successor had not assumed office and therefore, the clerk of the Court could receive the petition of plaint and this is perfectly in order under the provisions of the High Court Rules and Orders. Mr. Puri sought to rely on a number of decisions in which the plaint received by the clerk of the court was held as not properly received. Those are not relevant because in the present case we are governed by our own rules and the reception is totally in accordance with the same.

13. The result therefore is that the appeal fails and is dismissed with no order as to costs.

14. Appeal dismissed.


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