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Radhey Shyam Vs. Smt. Prem Kanta and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 170/1971
Judge
Reported in1982WLN81
AppellantRadhey Shyam
RespondentSmt. Prem Kanta and anr.
Cases Referred and Bharat Singh and Ors. v. Mst. Bhagirathi
Excerpt:
.....'charpetwan' is very well understood as adjoining and not a joint one. not only that no case of joint wall was set up in the pleadings, even in the statement given by the plaintiff during the trial he clearly stated that wall between the houses of the plaintiff and the property sold was charpet-v. he further admitted that in that deed, the well 'a' to 'b' was written as 'charpetwan. it is well settled that a right of pre-emption is a very weak right and can be defeated by all legitimate methods because it interferes with the freedom of contract and is opposed to a progressive state of society. 1 has clearly set up a plea in the written statement that she denied any right of co sharer as claimed by the plaintiff. 2 in the written statement that he admitted the right of pre-emption of..........the word 'charpetwan' and what the plaintiff meant by the worn 'char-petwan was that there was one joint wall in between the rooms. it was also argued that the learned first appellate court committed a serious error of law in taking in view that there was variance between the pleadings and proof and in discarding the evidence of the plaintiff's witnesses merely on this ground. it was further submitted that the contents of sale-deed ex. 2 mentioning therein that on the western and northern side the houses of radhey shyamji agarwal (plaintiff) were 'charpetwan', are not binding on the plaintiff. it is an admission of the defendant and cannot be used in his own favour. it was farther argued by mr. datt that the learned trial court had rightly utilised his site inspection note for.....
Judgment:

N.M. Kasliwal, J.

1. This is a second appeal by the plaintiff in a suit for pre-emption.

2. Brief facts leading to this appeal are that plaintiff filed a suit against the defendant No. 1 Smt. Prem Kanta, the vendee and Shri Abdul Gafoor, defendant No. 2, vendor in respect of house sold on 23rd December, 1964 for Rs. 1999/-. It was alleged that towards the West and North of the portions sold, is the portion of the plaintiff and therefore, according to the custom prevailing in Jaipur City, which has been well recognized by the Judicial Courts the plaintiff was entitled to the right of pre-emption being a cosharer of the property. The defendant No. 1, Smt. Prem Kanta, admitted the purchase of the property, but denied that the plaintiff was a co-sharer she further pleaded that the house of the plaintiff, if any, was adjoining to the disputed property and the right of pre-emption claimed on the ground of vicinage has bean held to be unconstitutional. The defendant No. 2 Abdul Gafoor also filed a written statement in which he admitted the right of the plaintiff to claim pre-emption butt he took the plea that the plaintiff had been told to purchase the property before the sale, but he refused to purchase the same and thereafter he had sold the property to defendant No. 1. On the basis of the aforesaid pleadings of the parties, the trial Court framed the following issues:

(1) Whether the plaintiff being cosharer of disputed premises, has right of pre-emption of the first degree. ?

(2) Whether defendant No. 2 offered plaintiff before sale but plaintiff refused to purchase.

(3) Whether defendant No. 1 has not purchased the suit premises for Rs. 1999/- but has paid only Rs. 999/- ?

(4) Whether the plaint is liable to be rejected as no cause of action is shown ?

(5) Relief?

3. Issue No 3 was framed on the ground that the amount of consi-deration was also challenged by the plaintiff The plaintiff in support of his case examined himself as P.W.1 and three more witnesses. On behalf of defendant No. 1 only one within Ram Sahai, her father has been examined as DW 1. No evidence was led by defendant No. 2. The learned trial Court under issue No. 1 held that the plaintiff's case of being a co-sharer and here by having a right of preception was established in favour of the plaintiff. Issue No. 2 was also decided against the defendant. Under Issue No 3 it was held that the burden of proving this issue that only Rs. 999/-had been paid and the sale price was not Rs. 1,999/- was upon the plaintiff and he had not succeed in proving the same and as such this issue was decided against the plaintiff. In view of the aforesaid finding the learned trial Court decreed the suit in favour of the plaintiff and offered to deposit Rs. 3,999/- within a period of two months. The defendant No. 1 was directed to execute sale-deed in favour of the plaintiff and get it registered for the suit premises for Rs 1,999/-. The registration expenses were directed to be borne by the plaintiff and the defendant No. 1 was directed to hand over vacant possession of the disputed premises immediately on payment of Rs. 1,999/

4. The defendant No. 1 aggrieved against the judgment and decree of the learned trail Court went in appeal and the learned Additional Civil Judge, Jaipur City reversed the finding of the trial Court on issue No. 1 and in the result allowed the appeal and set aside the judgment and decree of Courts.

5. Under these circumstances, the plaintiff aggrieved against the judgment and decree of the learned Additional Civil Judge No. 1, Jaipur City dated 21st November, 1970, has filed this second appeal.

6. The controversy now raised in this appeal only centres round the finding of issue No 1. It was contended by Mr Datt, learned Counsel for the plaintiff appellant that the learned first appellate Court committed an error of law inholding that the facts alleged in the plaint did not show that the plaintiff was a co-sharer in the disputed property or any portion of it, It was mentioned in the plaint that the house of the plaintiff was adjoining (CHARPETWAN) to the disputed house in the West and the North. In this regard the learned first appellate court mis-read the plaint in as much as it was nowhere pleaded by the plaintiff that his house was adjoining to the disputed house. In para 3 of the plaint it was clearly stated that the plaintiff had a right of pre-emption over the disputed house and that too of the first degree because the plaintiff was a co-sharer It was further contend-ed that the learned first appellate court committed an error in holding that the intervening wall was not of joint ownership merely on the ground that the plaintiff had stated that the wall of rooms 'A' and 'B' in the site plan Ex. 1 was 'CHARPETWAN'. The trial Court in this regard had taken a correct view that there was some confusion regarding the meaning of the word 'CHARPETWAN' and what the plaintiff meant by the worn 'CHAR-PETWAN was that there was one joint wall in between the rooms. It was also argued that the learned first appellate court committed a serious error of law in taking in view that there was variance between the pleadings and proof and in discarding the evidence of the plaintiff's witnesses merely on this ground. It was further submitted that the contents of sale-deed Ex. 2 mentioning therein that on the western and northern side the houses of Radhey Shyamji Agarwal (plaintiff) were 'Charpetwan', are not binding on the plaintiff. It is an admission of the defendant and cannot be used in his own favour. It was farther argued by Mr. Datt that the learned trial Court had rightly utilised his site inspection note for appreciating the evidence on record and in holding that on the site there was only one wall and not two walls separately, but the learned first appellate Court wrongly brushed aside the same by observing that it should act be used as evidence itself because otherwise the court becomes a witness and a witness cannot be a judge himself.

7. Learned Counsel for the respondent argued that in the plaint though it was mentioned that the plaintiff was claiming the right of preemption of the first degree as being a co-sharer, but it was not mentioned at all that any property of the plaintiff and the property sold was a joint one, on the contrary in the description of the boundaries of the property sold it was mentioned that on the western and northern side of the second storey the houses of Radhey Shyamji Agarwal were 'Charpetwan'. It is further argued that in the statement given by the plaintiff he clearly stated that in Ex. 1, the wall of 'A' and 'B' is 'Charpetwan'. In the cross-examination also he admitted that the wall 'A' and 'B' has been written as Charpet-wan in the title deed of his own house also. It is thus contended that it was the duty of the plaintiff to have made an allegation in the plaint as to how and in what manner he was claiming a right of co-sharer in the property sold and in the absence of such pleadings, the evidence of other witnesses of the plaintiff are of no avail to prove that the walls 'A' and 'B' was a joint wall and not 'Charpetwan'. In civil cases it was the duty of the plaintiff to come out with a clear and definite case regarding the mode and manner in which the plaintiff was asserting his right of pre-emption and. in the absence of such pleadings, no amount of evidence led during the trial can be looked into. It was next contended that any admission made by the defendant No. 2 in the written statement was not at all binding on the defendant-respondent No. 1, because such admission ha? not been made during the continuance of interest in the property and has been made after the interest of the defendant No. 2 had come to an end in the property sold. Admission made by a vendor in favour of third party is not binding on the vendee, if made subsequent to the sale. Reliance is placed on Mauna Auno and Anr. v. Mauna Shwo Lin and Anr. AIR 1923 Rangoon 51. Reliance in this regard is also placed on Harihar Rajguru Mohapatra and Anr. v. Naba-kishore Rajaguru Mohapatra and Ors. : AIR1963Ori45 . Reliance is also placed on the following observations in Geva Ram v. Mst. Hulsi 1954 RLW 673:

For a party who comes on the ground of easement, it is necessary that he should state in the pleadgins that there exists a right of easement in favour of the party claiming it and it should further be Shown as to in what manner the right of easement has been acquired. If it is a right by prescription, it should be clearly stated. If is on easement of necessity, it should be clearly mentioned....

In civil cases, it is the duty of the parties themselves to come to court with a clear case and to establish their case by evidence. It is not for the courts either to make put a case for the plaintiff or to allow them opportunity to produce evidence which on the pleadings they are not entitled to produce.

8. It was further argued by the learned Counsel for the respondent that it was not proper to use the observations made by the Court in spot Inspection in place of the evidence itself. Spot inspection can be used only to appreciate the evidence of the parties that has come, on the record but it cannot itself be taken to form part of the evidence,, Reliance in this regard is placed on Jamna Das v. Gulraj AIR 1952 Raj.J.

9. It was further contended that the learned trial Court did not prepare any note of inspection of the spot but there is only a mention in the ordersheet dated 19th December, 1968 that the plaintiff's western and the northern wall of the disputed room was the same i.e. the wall is joint. It is further mentioned that a hole was made in the wall and the wall was only one and not two. This order-sheet does not even contain the signature of the presiding officer. It is thus contented that no support can at all be taken of any observation made in such order-sheet. Mr.Datt, learned Counsel for the appellant in this regard contended that after an amendment made in Order 18 rule 18 CPC by Amendment. Act 104 of 1976, a memorandum of any relevant facts observed at such inspection shall form part of the record of the suit. It is thus contended by Mr Datt that after the aforesaid amendment the observations made by the learned trial Court that it had inspected the site and after digging a whole in the wall had found that it was a joint wall, was relevant to prove that the wall was a joint one and not 'Charpetwan'. Mr. Datt also placed reliance on the following observations in S.T. Krishnappa v. Principal Munsiff, Kolar and Ors. : AIR1980Kant106 :

The provision for spot inspection by the Court contained in Order 18, Rule 18 of C.P.C. is intended to advance the cause of justice and to avoid unnecessary evidence being adduced in the, case and, further, the record made of the facts observed during the course, of observation enables the court to arrive at a correct decision.

It was further 'argued by Mr. Datt that the admission, if any, made by the plaintiff that the wall was 'Charpetwan' was made under a wrong 'impression, of law as he was not understanding the purport or the meaning of the word 'Charpetwan' and any admission made under a wrong impression of law does not bind the party. Reliance in support of this contention is placed on M.Y.A.A. Muthu appa v. M.YA.A. Mathu Karuppan Chettiar AIR 1946 Madras 398. It is further submitted that an admission which is wrong in point of fact and is evidently made 'in ignorance of legal rights has no binding effect on the person making it. Reliance is placed on Mt. Munia v. Manohar Lal and Ors. AIR 1941 Oudh 429, Manoru Rai v. Shivanand Lal and Anr. AIR 1923 Allahabad 575, Nagubai Ammal and Ors. v. R. Shama Rao and Ors. : [1956]1SCR451 , and Bharat Singh and Ors. v. Mst. Bhagirathi : [1966]1SCR606 .

10. I have given my careful consideration to the arguments advanced by the learned Counsel for the parties and have thoroughly perused the record of the case.

11. In the plaint in para. 3 it was stated that the plaintiff had a right of pre-emption over the property sold and that was of the first degree as the plaintiff was a co-sharer. It was nowhere stated in the plaint that in what manner and in respect of which property he was claiming the right of co-sharer. Even in para 2 of the plaint where the details of the property sold and the boundaries were described it was mentioned that in the second storey towards the West and North the houses of Radhey Shyam Agrawal were 'Chapetwan'. The word 'Charpetwan' is very well understood as adjoining and not a joint one. Even the learned Counsel for the plaintiff was unable to contend that the word 'Charpetwan' meant a joint one. His only contention is that the plaintiff did not properly understand the purport and meaning of the word 'Charpetwan' and wrongly mentioned the same, though in fact the wall was the joint one. Thus, there can be no manner of dispute that in the pleadings there was no case at all set up by the plaintiff that he was claiming the right of co-sharer on the ground of the wall being a joint one. Not only that no case of joint wall was set up in the pleadings, even in the statement given by the plaintiff during the trial he clearly stated that wall between the houses of the plaintiff and the property sold was Charpet-v.an', In the sale deed Ex.2 also the portions of the house of the plaintiff towards the western and northern side in the second storey has been men-tiered as Charpetwan. The plaintiff has also admitted in cross-examination that be had a title deed of his own house and he had not seen whether in that deed it was written as joint or not. He further admitted that in that deed, the well 'A' to 'B' was written as 'Charpetwan. This title deed has not been produced on record by the plaintiff and it would be presumed apart from the admission of the plaintiff that the wall in between the house of the plaintiff and the property sold was not mentioned as a joint wall in the said title deed. In a civil case, it is the duty of the parties to come to a court with a clear case in the pleadings and to establish such case by evidence. It is not for the courts to make cut a new case beyond the pleadings. It is well settled that a right of pre-emption is a very weak right and can be defeated by all legitimate methods because it interferes with the freedom of contract and is opposed to a progressive state of society. The rule that a plaintiff must come forward with a clear case in the pleadings is applicable in all civil cases but it is all the more necessary in cases of easement and pre-emption. In order to establish a right of pre-emption it is not alone necessary for the plaintiff to mention that he is claiming a right on the basis of being a co-sharer but he must also mention as to in what property and in what manner he is claiming the right of joint ownership. The contesting defendant respondent No. 1 has clearly set up a plea in the written statement that she denied any right of co sharer as claimed by the plaintiff. In the absence of any case of joint ownership pleaded in the plaint and even not supported by his own statement during the trial and not supported by the contents of sale-deed Ex.2, any oral evidence led by the plaintiff of other witnesses is of on avail.

12. As regards admission made by the defendant-respondent No. 2 in the written statement that he admitted the right of pre-emption of the plaintiff I am clearly of the opinion that such admission is not binding on the defendant-respondent No. 1. It is clearly laid down under Sub-section (2) of Section 18 of the Evidence Act that such admissions are only relevant if they are made during the continuance of the interest of the persons making the statements. The defendant respondent No. 2 had already sold the property by registered sale-deed dated 24th Dec. 1964 and the written statement has been filed on 7th November, 1966, when his interest in the property bad already come to an end. The principle contained in Sub-section (2) of Section 18 of the Evidence Act is based on a solitary rule that admissions must be made during the continuance of the interest of the persons making the statements. A vendor after selling the property in favour of a vendee is left With no interest in the property and can make any statement to favour third party and as such it cannot be made binding against the interest of vendee.

13. As regards the inspection made by the trial Court on the spot, it is clear from a perusal of the record that no memorandum of such inspection was made separately by the trial Court. There is only a mention in the order-sheet dated 19th December, 1968, and surprisingly enough this order-sheet not even contained the signature of the Presiding Officer. Any observation thus made in the order-sheet dated 9th December, 1968 cannot be used in place of the evidence itself to establish that the wall between the houses of the plainiiff and the property sold was a joint one. The spot inspection can be used to appreciate the evidence. I don't want to decide the controv-ersy whether the amendment introduced in Order 18 rule 18 CPC by Amendment Act No. 104 of 1976, is to apply retrospectively or not as the inspection was made long before introduction of this amendment as in my view, in the facts and circumstances of this case, neither any memorandum has been prepared of the inspection nor the order-sheet dated 19th December, 1968 bears the signature of the Presiding Officer. That apart as already observed above; in the absence of pleadings any observations made in the order sheet dated 19th December 1969 cannot improve the case of the plaintiff.

14. There can be no dispute with regard to the principle that admission by a person made on wrong assumption of fact and law can be explained and the ruling relied upon by Mr. Datt in this regard. However, in the present case there is not an iota of word stated by the plaintiff that he was wrongly understanding the meaning of word 'Charpetwan' and the admission made by him was made on any wrong assumption of fact and law. It is only during the course of argument that the plaintiff wants this Court to believe that he was not understanding the true import and meaning of the word 'Charpetwan'. There is no basis or justification for making such argument. It is no doubt correct that a person can explain his previous admission made on a wrong assumption in subsequent proceedings or if it occur to him he can also explain in the same proceeding as well but in the present case, the plaintiff has not done so at any stage. Thus, the argument advanced by Mr. Datt learned Counsel for the plaintiff-appellant is of no consequence.

15. This is a second appeal and the lower appellate Court has not committed any error of law in deciding issue No. 1 against the plaintiff. In the result I find no force in this appeal and the same is dismissed with costs.


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