- (1.) This is appeal by Thakar Singh and Smt. Mitro, defendants-vendees against Ram Singh, plaintiff-pre-emptor. It is directed against the judgment of Shri Joginder Singh Mander, Senior Subordinate Judge, Hoshiarpur dated December 21, 1964 affirming the judgment of Shri Raj Kumar, Sub-Judge, Garhshankar dated June 4, 1964 decreeing the suit of the plaintiff for possession by pre-emption. The facts giving rise to the appeal are as under :- The defendants purchased 1/4th of agricultural land measuring 173 kanals 2 marlas situate in village Abowal for a sum of Rs. 2,000. Sale deed was executed on April 24, 1963. The plaintiff filed suit for its possession by pre-emption on payment of Rs. 1700. He pleaded his right of pre-emption on the ground that he was a tenant of the vendor. In their written statements, the defendants pleaded that the plaintiff being only in possession of part of the land pre-empted was not entitled to pre-empt the entire area of the land sold, that the sale consideration mentioned in the sale deed was Rs. 2,000 and was the sale price actually fixed and paid in good faith, Oat they were also entitled to expenses of sale, that they had effected improvements in the agricultural land and were entitled to the expenses incurred on those improvements, that there were other co-sharers in the land in suit and they were necessary parties to the suit and that the land in suit was banjar at the time it was sold and hence not pre-emptible. The above controversy between the parties gave rise to the following issues :- (1) Whether the plaintiff has a superior right of pre-emption ? (2) Whether the sale price was actually paid or fixed in good faith ? (3) If the issue No. 2 is not proved, what is the market value of the property in suit ? (4) Whether the vendees made any improvements on the property in suit ? If so, of what value and with what effect ? (5) Whether the suit is bad for partial pre-emption ? (6) Whether the other co-sharers of the land in suit are necessary and proper parties to the suit ? (7) Whether the land in suit was banjar at the time of sale ? If so, with what effect ? The trial Court decided issue No. 1 in favour of the plaintiff whereas issue No. 2 was determined in favour of the defendants holding that the price paid was Rs. 2,000 in addition to expenses for sale amounting to Rs. 257.25. No finding was given by the trial Court on issue No. 3.Issue Nos. 4 to 7 were decided against the defendants. In the result, the suit of the plaintiff was decreed subject to payment of Rs. 2,257.25 by the plaintiff to the defendants. The defendants being dissatisfied with the judgment and decree of the trial Court preferred an appeal before the Senior Sub-Judge. The Senior Sub-Judge having disallowed the appeal, the defendants have filed this appeal.
(2.) Shri B.S. Khoji appearing on behalf of the appellants has not contested any of the above issues. Before the lower appellate Court, the defendants raised the question that the suit filed by the plaintiff was premature inasmuch as the sale deed having been executed on April 24, 1963 was not registered upto May 6, 1964. It was contended that under Section 21 of the Punjab Pre-emption Act, 1913 , right to sue for possession by pre-emption of the sale arises only if the sale is complete and that the sale deed having not been registered on the date, when the suit was instituted, the sale was not complete and the suit deserved dismissal. The defendants in their written statement specifically pleaded that the suit was premature on this ground. The trial Court, however, did not frame any issue on this point. Joginder Pal, Clerk of the office of the Registrar appeared as D.W. 1. He proved by his statement made on May 6, 1964 that the sale deed executed on April 24, 1963 had not been registered. The lower appellate Court did not agree with the contention although, on the basis of the facts as admitted, it took the view that the point did arise for consideration in spite of the fact that specific issue had not been framed on that point.
(3.) Shri Khoji appearing on behalf of the defendants has argued that the view taken by the lower appellate Court in negativing that contention is untenable. Section 21 of the Pre-emption Act runs as follows : "Any person entitled to a right of pre-emption may, when the sale or foreclosure has been completed, bring a suit to enforce that right.";