(1) The defendant-vendee in this appeal has challenged the validity of the judgment and decree passed by the lower appellate Court decreeing the suit of the plaintiff-preemptor in respect of agricultural land on payment of a sum of Rs. 2,000.
(2) The first defendant Santi, widow of Arjan Singh, sold the suit property consisting of agricultural land in favour of the second defendant Wasawa Singh on 6th of June, 1961 under the registered sale-deed Ex. P 3, for a sum of Rs. 2,000. The plaintiff-respondent Jagir Singh thereupon brought a suit for pre-emption on 8th of June, 1962 on the ground that he was a tenant on the land so sold. The suit was contested by Wasawa Singh defendant who questioned not only the right of the plaintiff to bring the suit as a tenant but also claimed a sum of Rs. 265 as stamp duty and registration fee, and further pleaded that the suit was only for partial pre-emption as the trees standing on the land had not been taken into reckoning and that the suit was barred boy time. On the pleadings of the parties the following issues were framed:-
'(1) Has plaintiff sought to pre-empt the entire sale, and if not, to what effect ?
(2) Is the suit barred by limitation?
(3) Is plaintiff possessed of a preferential right of pre-emption ?
(4) To what amount, if any is vendee entitled on account of the expenses of the stamp duty and registration fee of the sale-deed ?
(5) Relief '
(3) The trial Judge in dealing with the first tow issues observed that these were not pressed before him by the defendant and consequently he decided them in favour of the plaintiff. On the third issue, which seems to have been disputed by the parties before him, the trial Judge held that though the plaintiff had been shown to be a tenant on the land it was not proved affirmatively that he occupied it as such on 6th of June, 1961, when the land came to be sold. On the fourth issue, the trial Judge reached a conclusion in favour of the plaintiff. The suit was accordingly dismissed, the plaintiff having failed to establish his right of pre-emption as a tenant.
(4) The only question agitated before the lower appellate Court related to the right of pre-emption of the plaintiff. As stated by the Judge, 'no other issue has been touched by the counsel for the parties before'. On the issue which was raised before the learned Judge, it was found that the plaintiff had made good his case of being a tenant-at-will on the land at the time of sale, i.e., on 6th of June, 1961. The plaintiff's appeal was accordingly allowed and the judgment and decree of the trial Judge set aside.
(5) I have mentioned the details of the pleadings, issues and the discussion thereon to show that one of the points now raised by Mr. Gandhi, the learned counsel for the vendee appellant, relates to a matter which was never put in issue and did not even form the subject matter of discussion before the Courts below, Mr. Gandhi contends that sub-s (2) of S. 15 of the Punjab pre-emption Act, as inserted by the Amending Act (Punjab Act 10of 1960), deprives the claimant of his right to pre-empt the agricultural land in suit having been sold by a female. Sub-section (2) reads as follows:--
'Notwithstanding anything contained in sub-section (1),--
(a) Where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance the right of pre-emption shall vest,--
(i) If the sale is boy such female, in her brother or brother's sons:-
(ii) If the sale is by the son or daughter of such female, in the mother's brothers or the mother's brother's sons of the vendor or vendors;
(b) Where the sale is by a female of land or property to which she had succeeded through her husband, or through her son in case the son has inherited the land or property sold from his father, the right of pre-emption shall vest,-
First, in the son or daughter of such female; Secondly, in the husband's brother or husband's brother's son of such female'.
It is argued that the land having been sold by Santi the right of pre-emption is restricted to the persons enumerated in cls. (a) and (b) The tenant nowhere figures as a possible pre-emptor and, therefore, the suit of the plaintiff should be dismissed on this short ground alone. The right of tenant figures in sub-s. (1) of S. 15, where the sale of agricultural land is made by a sole owner or it is of a share of joint land or property or is made by all co-sharers jointly. It is sought to be spelled out from a combined reading of sub-ss. (1) and (2) of S. 15 that the pre-emptive right accrues only in respect of property which is sold by male proprietors. Now, sub-s (2) fetters the pre-emptive right only for agricultural property which has been sold by a female and which she has acquired either paternally or which she has acquired either paternally or through her husband. If an absolute bar was provided, it could have been mentioned that the sale by a female will be pre-emptible only by the relations which are mentioned in cls. (a) and (b) of sub-s (2). Both cls. (a) and (b) have mentioned in considerable detail the land possessed by a female to which these restrictions are to apply and there seems nothing in the context to imply that where a woman is an absolute owner the sale effected by here would be excluded from the application of sub-s. (1) of S. 15. In any event, this is a point which not having been raised in other suit and not having formed the subject-matter of issues cannot be allowed to be agitated for the first time in second appeal. It would involve a determination of the nature of the land which was sold by Santi to Wasawa Singh appellant and whether it had descended to her paternally or through her husband if she was not actually its sole owner. It is significant that the point was not even raised in the arguments before the lower appellate Court and to me it does not appear to be so apparent from the record itself as to entitle a determination on merits in second appeal.
(6) This brings me to the other point which alone was canvassed before the lower appellate Court, viz., the right of the plaintiff to pre-empt by virtue of being a tenant. The right vests in the plaintiff by virtue of sub-clause (fourthly) of clause (a) of sub-s (1) of S. 15 which says the 'The right of pre-emption in respect of agricultural land and village immovable property shall vest, where the sale is by a sole owner, in the tenant who holds under tenancy of the vendor of the land or property sold or a part thereof'. The plaintiff produced two documents Exs. P-1 and P-2 in support of his claim. Exhibit P-1 is a copy of the Jamabandi for the year 1961-62 in which he is entered as a tenant-at-will of the land in suit under the vendor. Exhibit P-2 is a copy of the Khasra Girdawari for Khariff 19061 and Rabi 1962, where also the plaintiff is entered as a tenant under the vendor of the land for the harvests of Kharif 1961 amd Rabi 1962. The trial Judge did not feel satisfied that these two entries met the requirement of the law that the plaintiff had been a tenant on 6th of June, 1961. To me this conclusion appears to be of doubtful validity. When the plaintiff is shown in the revenue records to have been in possession of land for the Kharif harvest of 1961 it is obvious that he must have been there also on 6th of June, 1961. The lower appellate Court admitted the evidence with respect to the entry of Khara Girdawari for Kharif 1960 and Rabi 1961. This document exhibited as P-4 shows that the plaintiff was a tenant under the vendor also in respect of the harvests of Kharif 1960 and Rabi 1961. This entry concededly would leave no scope for the doubt which was entertained by the trial judge. The entry in Ex. P-4 coupled with the statement made by the appellant Wasawa Singh as D.W. 2 in cross-examination that at the time of sale he was not in possession of the land in suit induced the lower appellate Court to hold, as it was entitled to hold that the defendant had set up a false plea. Moreover, Ex. D-2 was already on the record which showed the plaintiff to be in possession of the land to suit at the time of sale on 6th of June 1961.
(7) It is to be seen, therefore, whether the admission of Ex. P-4 in the circumstances set out in the judgment of the lower appellate Court fulfils the requirements of O. 41, R. 27 of the Code of Civil Procedure. Under clause (b) of sub-r. (1) of R. 27 of O. 41, evidence may be admitted by an appellate Court if it 'requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause'. As held by their Lordships of the Privy Council in Parshotim, Thakur v. Lal Mohar Thakur, ILR 10 Pat 654, (AIR 1931 PC 143), 'It is only where an appellate Court requires' it (that is, finds it needful) that additional evidence cannot, of course,. be admitted to fill in gap, lacuna or defect in the evidence of a party and can only be taken in evidence for requirement of the Court upon its appreciation of the evidence as it stands. Though it has not been stated in so many words. I am clearly of the view that Exs. P-1 and P-2 required clarification for the doubt generated in the mind of the trial Court. This is precisely a situation in which the lower appellate Court is entitled to receive additional evidence as a requirement of the Court itself.
Mr. Gandhi has placed very strong reliance on the Supreme Court authority of Arjan Singh v. Kartar Singh, AIR 1951 SC 193, where it was observed by their Lordships that a finding of fact.
'reached on the basis of additional evidence which ought not to have been admitted and without any consideration whatever of the intrinsic and palpable defects in the nature of the entries themselves admitted as additional evidence which raise serious doubts about their genuineness, cannot be accepted as a finding that is conclusive in second appeal'.
But it is to be observed that it was a legitimate occasion for the application of O. 41, R. 27 and for this reason the reception of this evidence cannot be attacked on the ground that this was being done to make good the shortcomings of the plaintiff's case. A discretion vests in the appellate Court to receive evidence where the provisions of R. 27 of O. 41 so require. As held by their Lordships of the Supreme Court in Kamala Ranjan v. Baijnath Bajoria, AIR 1951 SC 1:--
'Where the appeal Court allows to the additional evidence to be given in order to clear up certain matter and for the purpose of enabling it to come to proper decision on the point, the matter is fully covered by O. 41, R. 27, Civil Procedure Code and no objection can be taken to the course adopted by the appellate Court in second appeal as there is no reason to interfere in the exercise of the Court's discretion'.
It may be mentioned that the lower appellate Court was careful enough to say that there was substantial cause for the admission of Ex. P-4. It would be observed that in clause (b) it is definitely mentioned that the appellate Court if it requires the document for 'any other substantial cause may allow such evidence to be produced. The words 'for any other substantial cause' must be read with the word 'requires' in the beginning of the sentence and need not be construed in the narrow sense suggested by the doctrine of ejusdem generis and the power to allow additional evidence may be exercised when any point is required to be cleared up in the interests of justice. Reference may be made to Chitaley's Commentary on the Code of Civil Procedure. Volume IV, at page 4319.
(8) The suit of the plaintiff, in my opinion, has been rightly decreed by the lower appellate Court and seeing no force in this appeal. I would dismiss it with costs.
(9) Appeal dismissed.