1. This is vendee-defendant's second appeal against whom the suit for possession by was of pre-emption has been decreed by both the Courts below:
2. Kulwant Singh Gurmit Singh acid Nawab Singh sops of Shingara 'Singh` sold the agricultural land. measuring. 32 Ranals.4 marlas representing. one-8th share of the land.-measuring 161 kanals 2.. marles vide sale deed dated May 21; 1980, for a sum of Rs. 96,000/- to the vendee defendant-appellant. Jagtar Singh, plaintiff, being a minor filed the suit for' possession by way: of pre-emption through Updesh Singh on the ground that he being the son of the said Kulwant Singh and the nephew of the other two venders; namely Gurmit. Singh and Nawab Singh, Was entitled to pre-empt the sale. The suit was contested inter alia on the ground that even if the relationship of the plaintiff with the vendors was proved though disputed and denied, the plaintiff had no right to file the suit as the father of the plaintiff was a party to the sale as a karta of the joint Hindu family constituted by him with his sons. It was further alleged that the suit property was ancestral joint Hindu family coparcenary property of the vendors. In the replication filed on behalf of the plaintiff the allegations made in the written statement were controverted and those made in the plaint were reiterated. It was denied that the suit property was ancestral joint Hindu family. property or that there was any joint family of the, plaintiff. The trial Court found that the plaintiff having, been proved to be the son of Kulwant Singh, vendor,. and the nephew of Gurmit Singh arid Nawab Singh, vendors, who were the brothers of the plaintiff's gather, had a superior-.right of pre-emption. It was further found that it was not. proved on the record that the suit property was ancestral or had then sold by the vendors as the karta of the family. The other pleas raised by the vendee-defendant were also' negatived. Consequently, the plaintiff's suit was decreed. In appeal, the learned Additional District Judge affirmed the said findings of the trial Court and, ' thus, maintained the decree passed in favour of the plaintiff. Dissatisfied with the same, the vendee has come as in second appeal to this Court..
3. The learned counsel' for the appellant vehemently contended that in paragraph 3 of the plaint the only allegation made was that the plaintiff had a superior right of pre-emption being the son. of Kulwant Singh, vendor, and the nephew of the other two vendors Nawab Singh and Gurmit Singh. The defendant is a stranger. Thus, argued the learned counsel since the plaintiff did not specifically to be beyond limitation, it was held that plead the exact i e relationship on the basis of which he claimed himself, to be u tied to pre-empt the sale made by the vendors, no decree could be passed in his favour on the basis of those pleadings. I: support of the contention; the learned counsel relied upon Jai Ram v. Jasmer Singh 1903 Simla Law Journal 31; Shankar Singh v. Chanan Singh, 1968 Cur LT 363 and Arjaa Singh v. Amar Singh, 1971 Pun LJ 98.
4, After hearing the learned counsel for the parties and going through,. the pleadings of. the parties; I do not and any merit in this contention.
5. Of course, in paragraph 3 of the plaint the plaintiff only alleged that he was the son of Kulwant Singh, vendor, axis the nephew of the other two vendors, but in paragraph 1 of the plaint, 3t was made clear that the said two vendors i. e., Gurmit Singh and Nawab Singh, and his father Kulwarit Singh, were the sons of Shingara Singh. Moreover, in the written 'statement, filed on behalf of the vendee-defendant, he only denied the allegations made in paragraph 3 of:the plaint and no specific plea was taken that the plaintiff.had not alleged his exact relationship with the vendors. The rulings relied upon by the learned. counsel for the appellant are clearly distinguishable. In Jai Ram's case, (supra) what was alleged as the ground for pre-emption in paragraph 2 of the plaint was that the plaintiff was the son of Surta and was related to other vendors and that he had got the right of pre-emption superior to that. of the defendants. The plaintiff was allowed to amend his plaint and even in the amended plaint, he did not narrate his exact relationship with the vendors. It was under these circumstances that it was observed that the plaintiff could pre-empt the sale made by his father because he had specifically pleaded himself to be his son, but as. regards. the other vendors he merely pleaded that he was related to them without mentioning his relationship, which was a vague plea and did not disclose any ground of preemption and, therefore, the plaintiff was not entitled to pre-empt the sale made by the other vendors. Similarly, in Shankar Singh's case (supra), where the amendment of the plaint was allowed and in pursuance thereof. the particular relationship mentioned;' the amendment was held the specific ground on which the preferential right.of.pre-emption is sought must be pleaded in the suit within the period of limitation and as such the order of the trial court allowing the amendment of the plaint was set aside and the amendment claimed by the plaintiff was disallowed. As stated earlier in the present case there was no question of amendment of the plaint at any stage because in the written statement, no such plea was taken by the vendee-defendant. In this view of matter, the concurrent findings of the two courts below in this behalf could not be interfered with in second appeal,
6. The learned counsel for the appellant, further contended that from the evidence of the plaintiff itself, it was proved that the suit land was purchased by the father of the vendors from the funds which he had raised from the ancestral land and, therefore, once the land sold was found to be ancestral in the lands of the vendors, the plaintiff was not entitled to pre-empt the sale in view of the provisions of Section 10 of the Punjab Pre-emption Act (hereinafter called the,Act). According to the learned counsel every Hindu family is presumed to be joint after the coming into force u the Hindu Succession Act, 1956, and, therefore, the view taken by both the Courts below was wrong and illegal. In support of the contentions, the learned counsel relied upon Matu Ram v. Imtiaz Ali, AIR l:i;i2 Punjab 195 and Pritant Singh v. Assistant Controller of Estate Duty, (1976) 7Pun LR 342: (1976 Tax LR 569) (FB). I do not find any merit is these contentions either.
7. On the appreciation of the entire evidence, it has been concurrent found by both the Courts below that the suit property was not the ancestral property of the vendors and the plaintiff and that the sale had not been made by the vendors as the karta of the joint Hindu family. The statement of Surender Raur, P.W. 2, the mother of the plaintiff was duly considered by both the courts below. It being a finding of fact based on the assessment of the evidence on the record, could not be interfered with in second appeal. It could not be disputed that the bar under Section 10 of the Act was attracted if the sale was made by a karta of the joint Hindu Family as only a karta has got the right to sell the shares of a11 the other members of the coparcenary. In the present case it has not been roved that the sate was made by the karta or there at-:r.; any partition between Shingara Singh and his sons. Apart from that even if it be assumed that the land was found to be ancestral, even then it could not be successfully argued on behalf of the vendee-defendant that the land sold was coparcenary property of the joint Hindu family, every coparcenary is., a joint owner of the same and when a karta or a manger sells the property, ha sells not only his own share, but by the provisions of Hindu law he has the power of selling and does sell the interest of every member of the family. It was under these circumstances that the provisions of Section 10 of the act were invoked 'because in such. a situation, such' a member will be a party to the sale a, contemplated therein, As observed earlier, as regards the present case, there is no such finding recorded by any of the two Courts below. In that view of the matter, the Full Bench judgment to this Court in Pritam Singh's case (supra), has no applicability to the facts of the present case. It will be a question of fact in each case to be determined of the evidence as to whether the suit property was sold by the vendor as the karta of the joint Hindu family consisting of himself and the plaintiff.
8. Consequently, this appeal fails and is dismissed with costs,
9. Appeal dismissed.