- (1.) Suresh Kumar and Pritam Chand, defendants in a suit for possession by way of pre-emption of land measuring 15 marlas are before me in this appeal challenging the judgment and decree passed by learned District Judge, Ambala dated 5.6.1986 vide which the appeal preferred by the plaintiff, Shiv Kumar, had been allowed and reversing the judgment of dismissal of the suit passed on 25.3.1985 by learned Senior Sub Judge, Ambala, decreed the suit of Shiv Kumar. The case of Shiv Kumar, the respondent, is as under:
(2.) The defendants purchased land measuring 15 marlas properly detailed in the head note of the plaint, situated in village Mullana, Tehsil and District Ambala along with the rights appurtenant thereto, from Madan Lal alias Pawan Kumar son of Om Dutt Sharma for a consideration of Rs. 8,000/- vide registered sale deed dated 15.04.1981. In the sale deed, the sale consideration was fictitiously got entered as Rs. 10,000/-. A sum of Rs 8,000/- was actually the market value of the suit land, which alone was paid as sale consideration. The plaintiff, Shiv Kumar has claimed a superior right to pre-empt the sale on the ground that he is a co-sharer in the suit property and is actually in possession thereof. He has also claimed that the suit property has not been partitioned in any manner. He has further claimed that no notice was given by the vendor or the vendee to the plaintiff before execution of the sale deed. As the defendants did not accept the request of the plaintiff to give the land to him on payment of the price actually paid, this suit was brought by him.
(3.) The defendants resisted the suit together. They have taken two preliminary objections. According to them, the suit is not maintainable for partial pre- emption. It is also claimed that custom of pre-emption was not prevalent where the property in dispute is situated on the date of extension of Punjab Pre- emption Act, 1913 and accordingly, the suit for preemption does not lie. In reply on merits, the description of the land is denied to be correctly given. The entire land is denied to have been mentioned in the plaint. The sale is denied to have been effected for a consideration of Rs. 8,000/-. It is asserted that the land has been sold for Rs. 10,000/- out of which Rs. 2,000/- had been paid at the time of execution of agreement of sale dated 5.6.1981. The plaintiff is denied to have any right of preemption. It is claimed that the defendants are in actual possession of the property in question. It is claimed that the plaintiff was mediator in the sale of the disputed property and that he is estopped from filing the present suit. Some additional objections have been taken about the expenses incurred by the defendants in the sale as also in levelling of the land. It is claimed that if the plaintiff succeeds in establishing his right of preemption, he may be directed to pay Rs. 11592.50 alongwith interest to the defendants.;