P L D 1966 (W (PLP)

Umrao Singh v. Kanwal and others A I R 1933 All. 113 distinguished. Ch. Abdul Hafiz for Appellant. Abid Hassan Minto for Respondents. Date of hearing: 10th February 1966. In this Second Appeal the dispute between the parties is in respect of 23 kanals 9 marlas being 1/8th share of land measuring 187 kanals 16 marlas in certain khatas situated in village Majra Khurd, Tehsil Daska. The appellant filed Suit No. 196 of 1953 for pre‑emption of the land in dispute sold by Mst. Sakina Bibi for an ostensible consideration of Rs.900. The appellant a co‑sharer in the land claimed superior right of pre‑emption but alleged that the vendees paid only a sum of Rs. 250 to the vendors and that the sum of Rs. 900 was fictitiously mentioned as consi deration of the sale. The learned Senior Civil Judge, Sialkot by judgment dated the 13th October 1954 rejected the plea of the appellant that the sale consideration was Rs. 250 and decreed the suit for pre‑emption on payment of a sum of Rs. 900 by 13th November 1954 failing which he directed that the suit shall stand dismissed with costs. The appellant challenged the finding on the question of consideration in Civil Appeal No. 195 of 1954 which was dismissed by the District Judge Sialkot by judgment dated the 28th July 1955. The learned District Judge dismissed the appeal on two grounds. In the first place he held that the appel lant having failed to deposit the amount of Rs. 900 in pursuance of the decree passed by the trial Court had lost the right of pre emption and the appeal is liable to be thrown out on that ground. He further held that the consideration of the sale was Rs. 900 and the allegation of the appellant that the real sale price was Rs. 300 (sic) has not been substantiated by the evidence on the record. The appellant has challenged this judgment in this Second Appeal.

2. Mr. Abdul Hafiz, the learned counsel for the appellant, has conceded that the finding of the learned trial Court that the sale consideration of the property in dispute is Rs. 900, being con current finding of fact, is not open to challenge in this Second Appeal. It is therefore not necessary for this Court to enter into the question whether the sale consideration of the sale was Rs. 250 as alleged by the appellant or Rs. 900 found by the Courts below. The only question therefore for consideration in this appeal is whether the learned District Judge was justified in dismissing the appeal on the ground that the appellant has lost his right for pre emption as he had failed to deposit the amount of Rs. 900 within the time fixed by the trial Court. The learned counsel for the appellant has contended that the view of the learned District Judge on this point is erroneous. In support of his contention he has relied on the case of Kodai Singh v. Jaisri Singh and others (I L R 13 All. 376) and of Benkey Behari Lal and another v. Abdur Rahman and others (A I R 1932 Oudh 63v). It was held in these cases that the plaintiffs in pre‑emption suit did not lose their right for pre‑emption on account of their failure to make the deposit within the time allowed by the decree. It was further held that it would be contrary to sound principle to compel the plaintiff' to pay the amount decreed by the trial Court B and to subject him to the penalty of losing the right of pre emption if he fails to do so when he has a right to question the correctness of the amount made payable by the trial Court by means of an appeal against it. This view was also taken in a Nagpur case in Laxman Ramchandra Dalai v. Wasudeo Vithal Chimote (A I R 1939 Nag. 120). Mr. Abid Hasan the learned counsel for the respon dents, has referred me to a decision of the Allahabad High Court in Umrao Singh v. Kanwal and others (A I R 1933 All. 113). But this decision is distinguishable because in that case the pre‑emptor had filed no appeal against the decree granted in his favour. He failed to deposit the money in time and thereafter when the trial Court declined to extend the time for payment of the amount for pre emption went in appeal to the High Court. It was in this context that their Lordships observed that since the appellant had lost his right of pre‑emption it was not open to him to file an appeal against the subsequent order. Therefore, the decision in A I R 1933 All. was entirely on a different point and has no bearing on the facts of the present case. I am therefore of the view that the view of the learned District Judge on this aspect of the case is not based on proper appreciation of the law. It seems to me that the appellant by reason of not depositing the pre‑emption amount in time cannot be considered to have lost his right of appeal. In law it was open to him to challenge the finding of the trial Court on the question of consideration of sale in appeal and there was nothing to prevent him from taking such a step. The learned District Judge therefore was not justified in dismissing the appeal on this ground.

3. But it is conceded that the appeal was rightly dismissed on the second ground. It will however be noticed that the appel lant did not deposit the amount of Rs. 900 within time fixed by the learned trial Court and this is likely to adversely affect the interest of the appellant. His learned counsel has therefore requested that time may be allowed to him to deposit the amount within a reasonable time. Mr. Abid Hasan Minto has opposed his prayer. In the circumstances of the present case, I am of the view that the appellant cannot be said to have challenged the find ing on the question of consideration on frivolous ground. In this respect he genuinely felt aggrieved by the order of the trial Court and for that reason challenged that finding in the First Appellate Court. I would, therefore, in the interest of justice, direct that the decree of the trial Court with regard to the time of the payment of the amount of pre‑emption will be varied. If the appellant deposits the amount of Rs. 900 within a month of the passing of this order he will. be entitled to enjoy the benefit grantec to him under the decree of the trial Court.

4. In the result, however, subject to the above remarks, the appeal is dismissed with no order as to costs. K. B. A. Appeal partly accepted.