- (1.) THE only question of law for determination before this Bench is:- Whether the learned lower appellate Court was right in allowing the plaintiff-respondent to amend her plaint at the appellate stage when the objection regarding the suit being bad for partial pre-emption was raised by the vendees-appellants in their written statement and the plaintiff-respondent, in spite thereof, persisted in maintaining, till the suit was dismissed by the learned trial Court, that only 5 kothas and not 6 were sold by the vender to the vendees ?
(2.) BRIEFLY stated the facts are that Arjan Singh and his three brothers, Amar singh, Surjan Singh and Gurmej Singh and their mother, Smt. Khem Kaur, sold 307 Kanals 6 Marlas of land along with 5 kutcha kothas and 1 pucca kotha to banta Singh and others (appellants) for a consideration of Rs. 38,605/-vide registered sale-deed dated August 20, 1964. Smt. Harbhajan Kaur, daughter of arjan Singh, vendor, filed a suit for possession by pre-emption of the said land measuring 307 kanals 6 marlas and 5 kothas, instead of 6, against the payment of the entire consideration of Rupees 38,605/ -. That suit was resisted by the vendees and one of the pleas taken was that the suit was bad for partial pre-emption. This plea was stated in preliminary objection No. 3 in the written statement and in answer to paragraph 2 of the plaint, the vendees categorically stated that 6 kothas were sold along with the land and not 5 as stated in the plaint. In her replication, the plaintiff-respondent asserted that the preliminary objection No. 3 raised by the vendees was wrong and was denied and in answer to paragraph 2 of the written statement, she reiterated that 5 kothas, according to the sale-deed, were sold and not 6. Accordingly, in issue was framed reading as under:- "whether the suit is bad for partial pre-emption ?" The plaintiff-preemptor filed the suit on August 17, 1965, without a copy of the sale-deed but filed a certified copy thereof on October 8, 1965, while the vendees-defendants produced the original sale-deed on October 5, 1966. In the sale-deed, as has been pointed out by the learned trial Court, it was stated that the vendors had sold land measuring 307 kanals 6 marlas along with 6 kothas 5 kutcha and 1 pucca and ancillary rights, that is, right of way, trees, water tap etc. , etc. . Another issue was framed as to whether the suit had been properly valued for purposes of court-fee and jurisdiction on the objection raised by the vendees-defendants. The plaintiff had fixed the value of the land for the purpose of court-fee at 10 times the land revenue (Rs. 142. 80 Paise) and for the purpose of jurisdiction at 30 times the land revenue (Rs. 428. 40 Paise)and the 5 kothas sued for were valued at Rs. 100/ -. Court-fee was paid accordingly on that valuation. The issue with regard to proper valuation for the purposes of court-fee and jurisdiction was tried as a preliminary issue and the learned Counsel for both parties agreed that the market value of the kothas in dispute was Rs. 500/- ; paragraph 7 of the plaint was accordingly amended and the deficient court-fee was made good. The suit of the plaintiff was, however, dismissed by the learned trial court on October 5, 1966, on the ground that it was bad of partial preemption.
(3.) AGAINST that decree, the plaintiff-pre-emptor filed an appeal which was accepted by the learned Additional District Judge, Karnal, on December 4, 1967. Along with the memorandum of appeal, an application for permission to amend the plaint, so as to mention 6 kothas instead of 5, was also filed. In that application, it was stated that according to the copy of the sale-deed with the plaintiff's counsel, 5 kothas had been sold--4 kutcha and one pucca--and that is how the mistake had occurred. The learned Additional District Judge allowed the amendment of the plaint and decreed the suit in full. The vendees filed R. S. A. No. 1477 of 1967 in this Court which was partly accepted by Gurdev Singh, J. , on May 8, 1969. The learned Judge held that the amendment had been properly allowed by the learned lower Appellate Court, but the plaintiff-respondent was entitled to pre-empt the sale only to the extent of the share of her father therein and not the entire sale because she had no right to pre-empt the sale made by her uncles and grandmother. Consequently, a decree for 1/6th of the sold property was passed against the payment of Rs. 6227/-, being the amount proportionate to the area of the property to which her right of pre-emption was found to exist.;