TMI Blog1965 (5) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... ght a suit for pre-emption on 8th of June, 1962 on the ground that he was a tenant on the land so sold. The suit was contested by Wasawa Singh defendant who questioned not only the right of the plaintiff to bring the suit as a tenant but also claimed a sum of Rs. 265 as stamp duty and registration fee, and further pleaded that the suit was only for partial pre-emption as the trees standing on the land had not been taken into reckoning and that the suit was barred boy time. On the pleadings of the parties the following issues were framed:- (1) Has plaintiff sought to pre-empt the entire sale, and if not, to what effect ? (2) Is the suit barred by limitation? (3) Is plaintiff possessed of a preferential right of pre-emption ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the vendee appellant, relates to a matter which was never put in issue and did not even form the subject matter of discussion before the Courts below, Mr. Gandhi contends that sub-s (2) of S. 15 of the Punjab pre-emption Act, as inserted by the Amending Act (Punjab Act 10 of 1960), deprives the claimant of his right to pre-empt the agricultural land in suit having been sold by a female. Sub-section (2) reads as follows:-- Notwithstanding anything contained in sub-section (1),-- (a) Where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance the right of pre-emption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er husband. If an absolute bar was provided, it could have been mentioned that the sale by a female will be pre-emptible only by the relations which are mentioned in cls. (a) and (b) of sub-s (2). Both cls. (a) and (b) have mentioned in considerable detail the land possessed by a female to which these restrictions are to apply and there seems nothing in the context to imply that where a woman is an absolute owner the sale effected by here would be excluded from the application of sub-s. (1) of S. 15. In any event, this is a point which not having been raised in other suit and not having formed the subject-matter of issues cannot be allowed to be agitated for the first time in second appeal. It would involve a determination of the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961. To me this conclusion appears to be of doubtful validity. When the plaintiff is shown in the revenue records to have been in possession of land for the Kharif harvest of 1961 it is obvious that he must have been there also on 6th of June, 1961. The lower appellate Court admitted the evidence with respect to the entry of Khara Girdawari for Kharif 1960 and Rabi 1961. This document exhibited as P-4 shows that the plaintiff was a tenant under the vendor also in respect of the harvests of Kharif 1960 and Rabi 1961. This entry concededly would leave no scope for the doubt which was entertained by the trial judge. The entry in Ex. P-4 coupled with the statement made by the appellant Wasawa Singh as D.W. 2 in cross-examination that at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as a requirement of the Court itself. Mr. Gandhi has placed very strong reliance on the Supreme Court authority of Arjan Singh v. Kartar Singh AIR 1951 SC 193, where it was observed by their Lordships that a finding of fact. reached on the basis of additional evidence which ought not to have been admitted and without any consideration whatever of the intrinsic and palpable defects in the nature of the entries themselves admitted as additional evidence which raise serious doubts about their genuineness, cannot be accepted as a finding that is conclusive in second appeal . But it is to be observed that it was a legitimate occasion for the application of O. 41, R. 27 and for this reason the reception of this evidence cannot be att ..... X X X X Extracts X X X X X X X X Extracts X X X X
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