- (1.) This is a regular second appeal filed by Kehar Singh and others vendee-defendants against the judgment dated August 30, 1972 of the Senior Subordinate Judge, Ambala, dismissing their appeal against the judgment dated August 27, 1971 of Sub-Judge Ist Class, Ambala, whereby he passed decree for possession by pre-emption of the land in suit in favour of the plaintiffs against them on payment of Rs. 5,350/-.
(2.) The facts of this case are that the land in suit measuring 56 kanals and 2 marlas fully described in the point and situated in the area of village Chotan, tehsil Naraingarh, district Ambala, belonged to Jewna son of Budhu who sold the same to Kehar Singh, Sat Pal, Chuhar Singh, Siri Pal and Sher Singh sons of Muni Lal, appellant and Bhag Mal, Joti Ram and Mohinder, respondent-defendants for Rs. 5,000/- on the basis of a registered sale deed dated March 10, 1965. Shankar and Balak Ram, plaintiffs, who are the father's brother's sons of Jewna vendor, filed suit for possession by pre-emption of this land on payment of Rs. 3,000/- on the allegation that their right of pre-emption was superior to that of the vendees who were strangers, that the sale took place for Rs. 3,000/- only and the same was its market value. The suit was resisted by the vendees on various grounds. On the pleadings of the parties, the following issues were framed by the trial Court :- "1. Whether the plaintiffs have a superior right of pre-emption ? 2. Whether the sale price of Rs. 5,000/- was actually paid or fixed in good faith ? 3. If issue No. 2 is not proved, what was the market value of the suit land at the time of the sale ? 4. Whether the plaintiffs have waived their right of pre-emption ? 5. Whether the defendants were tenants under the vendor at the time of sale, if so, to what effect ? 6. Whether the plaint is not properly valued for purposes of court-fee and jurisdiction ? 7. Whether the suit is bad for partial pre-emption ? 8. Whether the suit does not relate to the property covered by the sale deed ? 8A. Whether defendants 1, 2 and 8 have actually transferred their share of land in dispute in favour of defendant Nos. 3 to 7; if so to what effect ? 9. Relief." The trial Court decided issue No. 1 in favour of the plaintiffs and issue No. 2 in favour of the vendee-defendants. Issue Nos. 4, 6, 7 and 8 were not pressed before the trial Court and these were decided against the defendants. Issue No. 8-A was decided in favour of the defendants. It was held that the defendants were not tenants of the vendor at the date of the sale and issue No. 5 was also decided against the defendants. As a result decree for possession by pre-emption was passed in favour of the plaintiffs against the appellants Kehar Singh and others, who are the sons of Muni Lal. Feeling dissatisfied the appellants filed an appeal against this decree in the Court of the Senior Subordinate Judge. Before the Senior Subordinate Judge the decision of the trial Court on issue No. 5 only was assailed. During the pendency of the appeal before the Senior Subordinate Judge, an application under Order 41 Rule 27 of the Code of Civil Procedure was made to produce Jewna vendor as their witness but the same was rejected. The lower appellate Court decided issue No. 5 against the appellants and dismissed the appeal with costs. Thereafter, the second appeal was filed by the appellants.
(3.) At the outset, Mr. I.S. Saini, the learned counsel for the appellants submitted that Siri Pal and Sher Singh defendants-vendees were minors at the time of the filing of the suit and the trial Court did not consider any proposal to appoint guardian-ad-litem of these minors that, no notice of application under Order 32 Rule 3 of the Code of Civil Procedure was issued to the mother and brothers of the minors and also their other relatives and no formal order was passed by the Court appointing Muni Lal their father as guardian-ad-litem and consequently the minors were not properly represented before the trial Court and the decree passed against them is a nullity.;