KHAIR DIN AND ANOTHER Vs. SAIN AND ANOTHER
LAWS(P&H)-1950-3-8
HIGH COURT OF PUNJAB AND HARYANA
Decided on March 30,1950

Khair Din And Another Appellant
VERSUS
Sain And Another Respondents

JUDGEMENT

Soni, J. - (1.) THESE two second Appeals Nos. 24 and 25 of 1947 can be decided together by this judgment.
(2.) IN 1943 there was a sale of certain property by Gokal Chand in favour of Khair Din. Later Khair Din sold this property to Muhammad Shafi. In May 1944 two suits were brought for pre -emption, one was by Sain and Muhammad Sharif and the other was by Wadhawa Mal and Malawa Mal, The points on which the plaintiffs stated that they had superior rights of pre -emption were that they were co sharers in khata No. 204 with regard to which the finding of both the Courts is that they are not. The second point on which the superior right of preemption was claimed was that they were owners in the estate. Khair Din and Muhammad Shafi stated that they were owners in the estate because of a gift in their favour by Mahand before the institution of the suits. The learned District Judge dealing with these points observed as follows: The appeals relate only to issues 3 and 4. The plaintiffs in both suits based their right of pre -emption on two qualifications: (1) that they were owners in the estate where the land in suit was situate, and (2) that the; were co -sharers in the same khata. They were not able to establish the second qualification, and as regards owner ship in the estate, it was found that Khair Din, the first vendee, had also acquired similar ownership by a gift of land made in his favour by one Mahand, who appeared in evidence as D. W. 6. In similar fashion, the second vendee, Muhammad Shafi had acquired ownership by purchase of land from the same Mahand. The contention of the plaintiffs in the lower Court was that both the first and the second vendees were barbers by caste, and, therefore, non -agriculturists, and that the sale and the re -sale respectively in their favour were invalid by reason of the fact that Mahand D. W. 6 was an Arain, a statutory agriculturist. For the vendees, on the other hand, it was claimed that Khair Din was a Rajput and Muhammad Shafi a Qazi. The only question to decide is whether the vendees have proved themselves to be agriculturists. Then the learned District Judge went into this question, and after considering the evidence before him came to this conclusion : I hold that it has not been established that Khair Din vendee is a Rajput or that Muhammad Shafi is a Qazi. The gift and sale in their favour by Mahand D. W. 6, therefore, contravene the provisions of the Punjab Alienation of Land Act and are on that account invalid. It follows that while the vendees are not owners in the estate, the pre -emptors are, and that the two pre -emption suits must succeed. From the judgment of the learned District Judge two appeals were brought to this Court. Mr. Gosain, the learned counsel for the appellants, stated, that the learned District Judge had no jurisdiction to decide this point. He said that under S. 4, Punjab Alienation of Land Act, it was the Deputy Commissioner alone who had jurisdiction to decide that the other persons were members of the agricultural tribe as they claimed and that the decision of any other Court is barred, and referred me to S. 21 of the same Act. In my opinion, there is no force in this contention of the learned counsel. The point need not be discussed at great length because it is covered by authority. In the case of Surjan v. Lajja Ram, reported in : I. L. R. (1943) Lah. 826 : A. I. R. 1943 Lah. 48, it was held by a Division Bench consisting of Tek Chand and Sale JJ. that the jurisdiction of the civil Courts cannot be taken away except by express provision or by necessary implication. Under S. 9, Civil P. C., the Courts have jurisdiction to entertain all suits of a civil nature except those the cognizance of which is expressly or impliedly barred. It is, therefore, for the party who seeks to oust the jurisdiction of the ordinary civil Courts to establish his contention. They want on to say further that there was nothing in the Punjab Pre -emption Act itself which either expressly or impliedly limits the jurisdiction of the civil Court. The case which the learned Judges were dealing dealt with a point arising under S. 14, Pre -emption Act, and they held that it was competent to the civil Courts under the Punjab Pre -emption Act to decide all points necessary for the determination of the suit, including the point under S. 14 as to whether the vendor belongs to the same agricultural group as the vendee and they said that merely because the Legislature had enacted that for the purposes of the Punjab Alienation of Land Act, the Deputy Commissioner should be the sole authority for deciding whether a person is or is not a member of a notified agricultural tribe it cannot be assumed that it intended a similar procedure in the case of S. 14, Punjab Pre -emption Act, and they held that the jurisdiction of the civil Courts to decide questions under S. 14, Preemption Act, was not ousted by the provisions of the Land Alienation Act. The present case is stronger than the one which the learned Judges had to deal with in 1943. In this case it had incidentally to be decided by the District Judge whether certain parties had a certain caste or not and in my opinion it was not incumbent for the learned District Judge to sit idle and to stay his hands till one of the parties thought it fit to move the Deputy Commissioner for that purpose. As Sale J. observed in his judgment, if this was to happen the appeal before the District Judge would have lain in a state of suspended animation until such time as one of the parties chose to move the Deputy Commissioner for a decision under S. 4, Land Alienation Act. In my opinion, therefore, the learned District Judge was quite competent to decide this point and he having gone into the evidence and come to the conclusion in the matter, there is nothing that can be said on this matter in this Court in second appeal. The result, therefore, is that both the appeals are dismissed with costs. The parties are directed to appear before the trial Judge on 15th May 1950.;


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