SURESHA NAND AND OTHERS Vs. PRATAP SINGH NEGI AND OTHERS

JUDGEMENT

(1.) This special appeal arises out of a suit brought by the plaintiff respondent for pre-emption of a sale deed executed by defendants-respondent Nos. 2 and 3 in favour of the defendants-appellants. The sale deed in question related to land situate in village Gagwara. The plaintiff respondent is a resident of that village. In the revenue papers village Gagwara is noted as asl village with village Payalgaon as its laga village. The defendants appellants who were vendees in the sale deed are residents of this taga village Payalgaon. The plaintiff respondent claimed that being a resident of the asl village he had a right of pre-emption against the defendants appellants who were merely residents of the laga village though the defendants appellants were hissedars in the asl village Gagwara. The trial court at the first stage dismissed the suit holding that the plaintiff respondent had no preferential right to the sale and could not enforce a claim for pre-emption against the defendants appellants as the latter were residents of the laga village and were hissedars of the asl village. The first appellate court, on appeal against that judgment, framed an additional issue which had not been framed by the trial court, and in this issue the question that was raised was whether the two villages Gagwara and Payalgaon were held under one revenue engagement or not. The issue was remanded to the trial court for a finding under Or. 41, R. 25, C.P.C. On receipt of the finding on that issue the first appellate court then proceeded to finally decide the appeal. It was held that the two villages Gagwara and Payalgaon were not held under one revenue engagement and consequently the plaintiff respondent who was the resident of the asl village Gagwara had a preferential right to the sale and could claim pre-emption against defendants appellants who were residents of the laga village Payalgaon. Against this decision of the first appellate court the defendants appellants came up in appeal to this Court. That appeal was dismissed by a learned single Judge and consequently the appellants have come up in this special appeal.

(2.) Two points were urged by learned counsel for the appellants in support of this appeal. The first point urged was that the first appellate court committed an error of law in framing an issue as to whether villages Payalgaon and Gagwara were held under one revenue engagement and in remanding it for a finding under Or. 41, R. 25, C.P.C. when no such pleading was raised by the plaintiff respondent in the plaint. It appears to us that the learned counsel in putting forward this submission has completely misunderstood the legal position. In Stowell's land tenure system which also includes a description of the land tenure system in the district of Garhwal the custom of pre-emption has been dealt with. Under the chapter dealing with pre-emption Stowell also deals with the incidents of asl and laga villages. He has stated that:-

(3.) The second point urged by learned counsel was that the finding recorded by the appellate court that the two villages were not held under one revenue engagement was without material and without any evidence so that an error of law was committed by that court in recording that finding. The question whether these two villages Gagwara and Payalgaon were held under one revenue engagement was essentially a question of fact. The learned Judge of the first appellate court in his judgment has mentioned the material on the basis of which he came to the finding that they were not held under one revenue engagement. He took notice of the fact that initially at the time of Batten settlement and Backett settlement these two villages were shown as being under one revenue engagement. In the Batten settlement there was only one phant and one malguzar for Gagwara and its laga villages including village Payalgaon. The same was the case in the Backett settlement. In the Backett settlement the hukumbandi, or the agreement between the Government and the malguzar, which was on the file, showed that there was only one engagement for the revenue of Gagwara and Payalgaon. He, however, found that the situation changed completely in the Pauw settlement because in that settlement there were separate phants and separate mauntakhibs were also prepared for these two villages Gagwara and Payalgaon. The revenue was also separately assessed on them. That was repeated in the latest settlement and in addition, the boundaries of the two villages were marked and described separately. The learned Judge also mentioned that neither in the Pauw settlement nor in the latest settlement was any hukumbandi prepared. The learned counsel for the appellants has urged before us that in making this statement the learned Judge of the first appellate court went wrong because copies of the hukumbandis were on the file. Learned counsel produced before us certified copies of the hukumbandis which according to him were on the file. Having looked at those hukumbandis, we find that they do not in any way deal with the question of there being separate or one engagement in respect of revenue in regard to those two villages. The hukumbandis that were produced before us only deal with certain other customs in these villages. It seems to us that the learned Judge of the first appellate court in observing that no hukumbandi was prepared really intended to say that there were no hukumbandis dealing with the question of revenue engagement in these two villages. On the other hand preparation of two separate phants was itself evidence leading to the inference that there were separate engagements between the Government and the malguzar. The learned Judge also noted the fact that at the time of these settlements even the hissedars were not common to the two villages because there were some hissedars in Payalgaon who were not co-sharers in Gagwara. These circumstances in our opinion did provide sufficient material for drawing the inference of fact that the two villages were not held under one revenue engagement. It has already been held by the Supreme Court that an inference of fact from other primary facts proved remains a question of fact and does not become a question of law unless in drawing that inference some principle of law has to be applied. In this case, the inference which the learned Judge drew from the evidence which was before him that the two villages were not held under one revenue engagement was an inference of fact drawn from the evidence of fact and no principle of law arose in drawing that inference. The finding of the lower appellate court that the two villages were not held under one revenue engagement was, therefore, a finding of fact which became final and was not vitiated by any error of law.