- (1.) This is appeal by Gulshan Rai, Subash Chander, Sant Lal and Hakumat Rai defendants against Hans Raj and Ram Saran plaintiffs. It is directed against the judgment of Shri K.C. Grover, Additional District Judge, Karnal dated January 22, 1970, allowing appeal of the plaintiffs and setting aside the judgment of the Sub-Judge 1st Class Panipat dated February 24, 1969 dismissing the suit of the plaintiffs for possession by pre-emption of agricultural land filed against the defendants.
(2.) Agricultural land measuring 95 Karnals and 16 marlas situate in village Suthanawa sold by registered sale deed dated June 1/2, 1966 Ladha Ram in favour of the defendants for Rs. 3000. On June 5, 1967 the plaintiffs filed suit for possession by pre-emption against the defendants alleging that the plaintiffs were sons of Ladha Ram and that the defendants being strangers, the plaintiffs had preferential right of pre-emption. In the written statement filed on behalf of the defendants, it was urged that they were tenants of the land sold and consequently entitled to pre-empt the sale. The trial Court framed the following issues :- 1. Whether the plaintiffs have a superior right of pre-emption ? 2. Whether the sale price was fixed in good faith or actually paid ? 3. If issue No. 2 is not proved, what was the market value of the suit land ? 4. Whether the suit is collusive as alleged ? 5. Whether the stamp and registration expenses amounting to Rs. 230/- were incurred by the vendees-defendants ? 6. Whether the vendees-defendants were tenants under the vender over the land in dispute at the time of sale, and if so, to what effect ? 7. Whether the vendees-defendants have made any improvements over the suit land after the sale and if so, of what value and to what effect ? As agreed to by the counsel for the parties, the only issue, which has survived in this appeal for contest is issue No. 6. The trial Court gave the finding that the defendants were the tenants and hence dismissed the suit. On appeal before the lower appellate court, the Court set aside that finding holding that on the basis of evidence led in the case, the defendants were not the tenants and consequently allowed the appeal.
(3.) Shri G.C. Mittal appearing on behalf of the plaintiffs-respondents raised preliminary objection that the finding by the lower appellate Court that the defendants were not the tenants of the land in dispute is a finding of fact and that the same could not be disturbed in second appeal. In reply, Shri Roop Chand Chowdhry appearing for the defendants-appellants contended that finding of fact has been arrived at by the lower appellate Court without looking into the evidence both documentary and oral as adduced by the particle before the trial Court. He stated that on the date of arguments, there was not record of the trial Court before the lower appellate Court and consequently, the observation made by the lower appellate Court in the body of the judgment that the Court had carefully gone through the record is not at all warranted. He contended that as the finding of fact had been arrived at without taking into consideration the contents of the documentary evidence and the oral evidence led in the case such a finding of fact was without application of mind on the part of the lower appellate Court to the material on the record and consequently was no finding of fact.;