CHHAJJU RAM Vs. NEKI

JUDGEMENT

(1.) THIS appeal is brought from two judgments of the Chief Court of the Punjab and a decree following on them, which affirmed a decree of the Subordinate Judge of Hissar. In the litigation out of which the appeal arises the respondents were plaintiffs. They claimed to have validly exercised a right of pre-emption over certain lands which the respondent Mrs. Forbes, who was made a defendant only formally, had sold to the appellant. Into the details of the transaction it is not necessary to enter at great length, for their Lordships are of opinion that the case must be disposed of on a principle governing procedure which will appear presently. It is sufficient to state that Mrs. Forbes sold to the appellant her proprietary lights in the subject-matter of the suit, two villages called Mauza Kagsar and Mauza Jamni Kera, by a deed of sale on 2nd October 1912. The price Rs. 42,000, was paid, and, the appellant took possession. Shortly afterwards, the respondents other than Mrs. Forbes sued the appellant to set aside the sale and for a decree for possession of the former of the two Mouzas on payment of Rs. 15,000. They claimed that they were Gaur Brahmans by caste, and were occupancy tenants of that village and members of an agricultural tribe of the village within the meaning of the Alienation of Land Act, XIII of 1900 of the Punjab. They further-alleged that no formal notice or information had been given to them of the proposed sale of the village, with sale had been completed secretly and conclusively, and that they were entitled to a right of pre-emption. Among other defences raised by the appellant was this, that in reality the plaintiffs-respondents Were suing on behalf of third persons who had no right to purchase the village, and that in consequence no such right of Pre-emption could be asserted on the part of the persons suing.

(2.) THE learned Subordinate Judge tried a number of issues in the suit, which raised, among others, the question whether the plaintiffs were suing for their own benefit and had a right of pre-emption. In the end, he found in favour of the plaintiffs on all the material issues, including those raising the questions just referred to. The present appellant then appealed to the Chief Court of the Punjab. A Division Bench of that Court, consisting of Scott-Smith and Les li-Jones, JJ., reversed the judgment of the Subordinate Judge, holding that the plaintiffs' claim for pre-emption was really One on behalf of ,third persons who had no Such right. They had allowed, as an additional ground of appeal, the contention to be brought before them that the suit had been instituted in 1 he interests of third persons who were non-agriculturists end had en that account no right of pre-emption, and had given leave to the defendant to adduce further evidence on the point, including the records of certain proceedings. In the result they allowed the appeal, holding that, because the plaintiffs were not suing for themselves alone, but for themselves in conjunction with other person, their claim to pre-emption was not maintainable. The plaintiffs then applied, tinder Order XLVII, Rule I, of the Code of Civil Procedure, 1908, for a review of the judgment of the Division Bench on the ground that the Division Bench doubt not to have admitted the additional ground of appeal, and that the learned Judges were misled into holding that the facts found by them disentitled the plaintiffs to a decree.

(3.) IT will be observed that the question with which their Lordships have to deal is one concerned not with appeal to a Court of Appeal, but with review by the Court which had already desposed of the case. In England it is only under strictly limited circumstances that an application for such a review can be entertained. In India, however, provision has for long past been made by legislation for review in addition to appeal. But as the right is the creation of Indian statute- law, it is, necessary to see what such statutory law really allows.