Decided on March 29,1950

Maru Rur Singh Appellant
Ganesha Ram Tulsiram Respondents


Kesho Ram Passey, J. - (1.) THIS appeal is directed against the judgment of the District Judge, Bhatinda dismissing Maru's suit and it arises out of the following facts.
(2.) ON 10 -2 -2001 one Chuhar Chamar of village Khara sold 10 bighas 5 biswas out of a joint holding of 66 bighas 17 biswas in which he had one -third share to Gurnam Singh and others for Rs. 2500. To pre -empt this sale a suit was instituted on 12 -2 -2001 by Ganesha who based his preferential right on his being a co -sharer in the land. Another similar suit was filed on 4 -10 -2001 by one Maru, who claimed to be a second degree collateral of the vendor and as both the suits arose out of the same sale they were consolidated. It is necessary to mention here that Ganehsa in his suit had urged that the sale had taken place for Rs. 1600 and that Rs. 900 had been fictitiously entered in the sale deed. Whereas Maru had expressed his readiness to pre -empt on payment of the price at which the sale purported to have taken place viz, Rs. 2500. Admittedly both Ganehsa and Maru have a superior right of preemption over the vendees who are neither connected with the vendor nor do they have any other better qualification. The trial Court passed a decree in favour of Maru on 27 -4 -2002 and directed him to deposit the decretal amount on or before 12th of Bhadon 2002 failing which Ganesha was held entitled to get the land provided he deposited Rs. 2500 by 30th of Bhadon 2004. Against this decree, Ganesha appealed to the District Judge on the ground that Maru was not a genuine pre -emptor and that he was only a figure head working for the benefit of the vendees. His contention has found favour with the lower appellate Court and his appeal has been accepted and the suit of Maru dismissed. For coming to that conclusion the learned District Judge has been, influenced by the failure of Maru to contest the payment of Rs. 900 by the vendee, the scanty means he is possessed of and the mortgage effected by him after the decree of a part of the land in dispute to some relations of the vendees. Some oral evidence has been produced by Ganehsa to show that Maru has no immovable property of his own and that the vendees are financing the litigation be that the sale in their favour may remain in tact. From the other side also evidence has been led to prove that Maru earns his livelihood by weaving and that he is bearing the expenses of the suit from his own pocket. It is a well recognised rule of evidence that when a suit is resisted on the ground that the pre -emptor seeks to obtain the property for the benefit of some other person and not for himself the onus probandi of proving that allegation is on the person making it. Looked at from this view point, the evidence produced by Ganesha is wholly insufficient to warrant the conclusion that his rival Maru is only a puppet and the real Plaintiffs are the vendees themselves. Otherwise also the fact that Maru has not challenged the payment of Rs. 900 or that he is not a man of substance cannot deprive him of the right of pre -emption. It is not the intention of the pre -emption law that the person figuring as the Plaintiff must on the date of the sale or the date of the suit be possessed of ample means wherewith to acquire the property. There is no legal or equitable impediment in the way of his raising a loan for enforcing his right of pre -emption. It would be outside the scope of a proper trial of a preemption suit if the Courts look into the source from which the pre -emptor brings the money for payment to the vendee in whose place he wants to be substituted or begin to consider whether he has filed the suit in good faith and a decree would not be vitiated by the mere reason that after it was passed the pre -emptor raised money for payment to the unsuccessful vendee by mortgaging a part of the property that was the subject of the suit. Amar Singh v. Kishen Singh, 103 P.R. 1914 :, (A.I.R 1914 Lah. 506) was a similar case in which even in the presence of evidence that the pre -emptor had expressed his readiness to pay the full amount for which the sale was represented to have taken place, that he was not only deeply in debt but it was not easy for him to arrange a loan to purchase the property and that ha had filed the suit with the obvious intention of defeating the rival pre -emptor, it was held by Rattigan and Shadi Lal JJ., that these grounds were devoid of any real force to hold the suit being collusive or to hold that the pre -emptor was seeking the benefit not of himself but of the vendees.
(3.) IN sheru v. Jawdhir Singh, 1912 P.R.58 : (13 I.C. 661), it was held by Robertson and Shah Din, JJ.: that the fact that the pre -emptor was instigated to prefer his claim by the vendees, who supplied him with the necessary funds on a mortgage of the land sold, apparently with the object of defeating another suit by a rival pre -emptor, does not prove that he is acting benami for the vendees and, therefore, doss no and debar him from suing. In that case the land had been mortgaged by the pre emptor to the vendees themselves. The evidence concerning benami in the present case is far weaker and on its basis it is not possible to hold that Maru is acting on behalf of the vendees and intends to secure the land for them.;

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