BIRJEE Vs. PIRTHI SUJJAN SINGH

JUDGEMENT

(1.) One Gulzari was the last-male-holder of half share of the land measuring 177 kanals and 1 marla. On his death vide mutation No. 705 Exhibit P-1, his one-half share in the said land was mutated in the name of his daughter Birjee and another half in the name of the sons and daughter of his another daughter Mahakauri, the said Mahakauri having predeceased him. By a sale deed Exhibit D-1, the land inherited by sons and daughter of Mahakauri from their maternal grand-father Gulzari was sold for Rs. 11,000/- on January 9, 1962 to the vendees-defendant-respondent and it is this sale which the plaintiff-appellant Birjee, daughter of Gulzari, has attempted to pre-empt by filing the present suit for possession of the land in dispute by way of pre-emption on the ground of her having a preferential claim of pre-emption, being a co-sharer of the vendors. The trial Court decreed this suit but the learned Additional District Judge in appeal set aside the judgment and decree of the trial Court and dismissed the suit on the ground that to the facts of the present case provisions of Section 15(2)() of the Pre-emption Act (hereinafter referred to as the Act) are attracted which provisions do not confer any right of pre-emption on a co-sharer and it is this decision of the learned Additional Judge, dated February 20, 1965, which is under challenge in the present appeal in this Court. Mr. Mohinderjit Singh Sethi learned Counsel for the appellant has made two-fold submissions : (i) that the lower appellate Court has made a new case for the plaintiff appellant, and (ii) that the provisions of Section 15(2)(a) of the Act are not applicable to the facts of the present case. There is no merit in either of the submissions of the learned Counsel or the appellant. It was plaintiff's own case which he set up in his plaint that the land in dispute was inherited by the vendors from their maternal grand-father and so it cannot be said that the lower appellate Court set up a new case for the vendees had not in reply pleaded that the plaintiff had any preferential claim to pre-empt the sale because the land was inherited by vendors from their maternal grand-father and so provisions of Section 15(2)(a) of the Act are applicable which confer no right on a co-sharer to pre-empt. Since the Court has to decide the matter by applying law to the admitted facts and since the admitted facts in the opinion of the Court attracted the application of Section 15(2)(a) of the Act and not Section 15(1) of the said Act, so no grievance can be made of the fact as to why the Court decided the case by applying the provisions of Section 15(2)(a) of the Act. Before I consider the contentions of the learned Counsel, it would be desirable to notice the provisions of Section 15(2) of the Act which are as under :-

(2.) For the reasons stated above, this appeal fails but there is no order as to costs. Appeal dismissed.