Rameshwar Singh Malik, J. - (1.) THIS appeal has been filed by the defendant against the judgment and decree dated 18.10.1984 passed by the learned Additional District Judge,Jind, whereby his first appeal was dismissed upholding the judgment and decree dated 25.8.1983 passed by the learned trial court decreeing the suit for possession by way of pre -emption.
(2.) FACTS first. Plaintiffs filed the suit for possession by way of pre -emption challenging the sale deed dated 26.5.1980, vide which defendant No.2 sold to defendant No.1 (appellant), land measuring 46 kanals 2 marlas comprising Khasra No. 153 killa No.16 (8 -0), 24 (8 -0), 25 (8 -0) Khasra No. 178 Killa No.14 (8 -0), 5(8 -0), 612 (4 -15), Khasra No. 153/12/2, Min(0 -2) and Khasra No. 672 Min (1 -5) as described in the head note of the plaint. Plaintiffs claimed their right of pre -emption on the basis of consanguinity as well as being co -sharers. Name of defendant No.2 Smt. Bhanti Devi (vendor) was struck off from the array of parties by the learned trial court vide its order dated 8.8.1981, on the basis of statement made by learned counsel for the plaintiffs, to the effect that he had given up defendant No.2 being unnecessary. Defendant (vendee), filed his written statement contesting the suit of the plaintiffs. However, it was not denied that the vendor Smt. Bhanti Devi was widow of Budh Dev, brother of the plaintiffs. The plaintiffs filed their replication to the written statement of defendant No.1. On completion of the pleadings, the learned trial court framed the following issues: 1. Whether the plaintiffs have a superior right of preemption? OPP; 2. Whether the sale consideration of Rs. 49,000/ - was fixed in good faith or actually paid? OPD; 3. If issue No.2 is not proved what was the market value of the suit land? OPP; 4.WHETHER the plaintiffs were a consenting party to the sale? OPD; 5.WHETHER the suit land is not pre -emptible? OPD; Whether the court fee is deficient? OPD; 6.WHETHER the suit has been filed beyond the period of limitation? OPD; 7.WHETHER the defendant set No.1 is entitled to stamp and registration charges, if so to what amount? OPD; Whether 1/5th pre -emption money has not been deposited in legal manner? OPD; 9 -A Whether the plaintiffs are barred to file this suit for preemption, as they have not raised this plea in the previous suit for declaration which is already pending as provided under order 2 rule 2. C.P.C.' OPD. 8.RELIEF .
(3.) Before proceeding with the case on merits, issue No.6 was decided by the learned trial court vide its order dated 7.5.1983 holding that as per the evidence available on the file, the suit land was situated within the municipal limits of Narwana. It was further held that the plaintiffs were liable to pay ad -valorem court fees on the sale price of land i.e. Rs. 49,000/ -. Since this order was not challenged by the plaintiffs, it became final between the parties.;