- (1.) This second appeal is directed against the judgment and decree dated December 26, 1969, of the Additional District Judge, Karnal, modifying that of the Subordinate Judge, Karnal, dated February 3, 1969. The facts giving rise to this appeal are as under :- Harmitter Singh, plaintiff-respondent, filed a suit in the Court of Sub-Judge II Class, Karnal, for possession by way of pre-emption of agricultural land, described in the heading of the plaint, together with one-fourth share of the tubewell sold by Ganga Singh, defendant-respondent, in favour of Hoshiar Singh and Avtar Singh sons of Joginder Singh, defendant-respondents, for Rs. 8,100/- vide registered sale deed dated January 21, 1965 (Exhibit D-2). This sale deed is exhibited D-2 by the trial Court. Plaintiff-respondent is the son of vendor. It is alleged that the plaintiff being the son of vendor had the preferential right to purchase the land; that actually sale consideration of Rs. 6,500/- was paid; and that in order to defeat the right of the plaintiff the vendees got the lease deed (Exhibit D-1) dated January 23, 1965, executed from the vendor, in favour of their father's sister's son Roshanbeg Singh, the present appellant. Avtar Singh, one of the vendees, was murdered during the pendency of the suit and his mother, Smt. Iqbal Kaur, was brought on record as his legal representative. His suit was resisted by the lessee-appellant and also the vendees. They denied the preferential right o the plaintiff-respondent to pre-empt and pleaded that the suit was beyond limitation; that the sale price as entered in the sale deed and which was the market price was actually paid; that sufficient portion of the land, in dispute, was banjar on the date of the sale and was thus not pre-emptible that the vendees were tenants under the vendor on the date of sale of the land, in dispute; that Roshanbeg Singh, lessee, was not a necessary party; and the genuineness or fictitiousness of the lease, (Exhibit D-1), cannot be questioned in the suit, Roshanbeg Singh, lessee, also filed separate written statement wherein he pleaded that he was a genuine lessee having no concern with the vendees. The suit was contested by the parties on the following issues :- 1. Whether the plaintiff has got a superior right of pre-emption ? 2. Whether the suit is within time ? 3. Whether the sale price was paid and fixed in good faith ? 4. Whether the land in suit was banjar at the date of sale and with what effect ? 5. What was the market value of the suit land at the time of sale ? 6. Whether the vendees were the tenants of the vendor on the suit land and the sale is not pre-emptible ? 7. Whether Roshanbeg Singh, lessee, is a necessary or proper party to the suit ? 8. Whether the lease in favour of Roshanbeg Singh can be questioned in this suit ? 9. If issues Nos. 7 and 8 are proved, whether the lease in favour of Roshanbeg Singh is fictitious or bogus as alleged ? 10. Relief. The trial Court decided issue Nos. 1 and 2 in favour of the plaintiff, issue Nos. 3 and 5 in favour of vendee-defendants and issue Nos. 4 and 6 against them; issue Nos. 7 and 8 against the lessee-defendant and issue No. 9 in his favour; and consequently decreed the plaintiff's suit for possession by pre-emption on payment of Rs. 8,653.50 without effecting the lease right of Roshanbeg Singh appellant. Dissatisfied by the judgment and decree dated February 3, 1969, of the trial Court, the plaintiff filed an appeal before the learned Additional District Judge, Karnal. The vendees did not file an appeal nor did they appear before the lower appellate Court and were proceeded against ex-parte. However, the lessee contested the appeal. The first appellate Court vide judgment dated December 26, 1969, reversed the finding of the trial Court on issue No. 9, allowed the appeal and modified the decree of the trial Court to the extent that the pre-emptor shall get possession of the suit land free from encumbrance of lease deed (Exhibit D-1). It is against this judgment and decree of the appellate Court that the present appeal has been filed by lessee Roshanbeg Singh. Respondents Nos. 3 and 4 also filed the cross-objections.
(2.) Mr. U.D. Gaur, learned counsel for the appellant, has contended that the appellate Court has gone wrong in reversing the finding of the trial Court on issue No. 9. His second contention is that the decree passed by the trial Court and the first appellate Court in favour of the pre-emptor is a nullity and invalid and thus non-existent as no decree can be passed against the vendees who were tenants at the time of sale under Section 17-A of the Punjab Security of Land Tenures Act, 1953 (hereinafter called 'the Act') and also under the Punjab Pre-emption Act, 1913.
(3.) No one has appeared on behalf of vendor-respondent No. 2. Mr. D.S. Nehra, learned counsel for plaintiff-respondent No. 1, has raised preliminary objection. So far as second contention of Shri Gaur is concerned, his objection is that since the vendee-respondent Nos. 3 and 4 had not filed an appeal either against the judgment and decree of the trial Court or of the first appellate Court, it cannot be allowed to be raised at this stage. As regards first contention, Shri Nehra's objection is that it is a question of fact, which has been gone into minutely by the first appellate Court, and this Court, in second appeal, cannot reverse that finding.;