Paramjeet Singh, J. - (1.) THIS regular second appeal preferred by plaintiff is directed against the judgment and decree dated 17.02.1987 passed by learned Sub Judge, IInd Class, Gurgaon whereby suit for possession by way of preemption filed by appellant -plaintiff has been dismissed and against the judgment and decree dated 21.09.1987 passed by learned Additional District Judge (II), Gurgaon whereby appeal preferred by appellant -plaintiff has also been dismissed. For convenience sake, hereinafter, reference to parties is being made as per their status in the plaint.
(2.) THE detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit for possession by way of preemption with the averments that Kapura son of Rahim Khan was owner in possession to the extent of 1/4th share in the agricultural land measuring 8 kanals as detailed in para No. 1 of the plaint Said Kapura had sold the suit land to the defendants without the knowledge and notice of the plaintiff for ostensible sale consideration of Rs. 13,000/ -, vide registered sale deed dated 03.06.1983. It was further pleaded that suit land was under mortgage for a sum of Rs. 1400/ - and the said amount was adjusted in the sale consideration and sale price of Rs. 3,000/ - was added, fictitiously in the sale deed. The plaintiff claimed his superior right to pre -empt the sale, being a co -sharer in the suit land. Upon notice, defendants resisted the suit and filed written statement with the averments that 1/5th pre -emption amount was not deposited in time, suit was not within limitation and not maintainable in the present form. Suit is bad for partial pre -emption and is not properly valued for the purposes of court fee and jurisdiction. It was pleaded that sale consideration of Rs. 13,000/ - was fixed in good faith and actually paid to the vendor. Out of sale consideration, Rs. 11,600/ - were paid before the Sub Registrar at the time of registration of sale deed and Rs. 1,400/ - were adjusted as mortgage amount. The plaintiff was not admitted to be co sharer in the suit land and his superior right to pre -empt the sale in dispute was specifically disputed. It was not disputed that suit land was under mortgage till then and it was redeemed by the defendants.
(3.) ON the basis of pleadings of parties, the Court of first instance framed following issues: "1. Whether the plaintiff has got a superior right of pre -emption in respect of the sale in dispute? OPP 2. Whether the sale consideration of Rs. 13000/ - was fixed in good faith and actually paid to the vendor? OPD 3. If issue No. 2 is not proved, then what was the market value of the suit land on the date of sale? OPP 4. Whether the suit is not within limitation? OPD;