Ajaib Singh vs Pritam Singh

Swatanter Kumar, J.—Challenge in this Regular Second Appeal is to the judgment and decree passed by the learned Ist Appellate Court dated 10.3.1997, wherein the appeal preferred before that Court by the present appellant was dismissed.

The necessary facts are that the plaintiff in the suit claimed a decree for possession through pre-emption in respect of the land measuring 2 kanals 10 marlas being 5/6th share of the total land in khevit No. 28, Khatauni No. 51, 52 Rectangle No. 17 and more particularly described in the plaint. Defendants No. 1 to 10 were recorded as owners of the land in dispute and they had sold the land in suit to defendant No. 11 vide registered sale-deed dated 2.5.1990, thus frustrating the right of pre-emption of the plaintiff. The suit was contested by the defendants mainly on the ground that the plaintiff had no locus-standi to file the present suit as the suit for partial pre-emption was not tenable. The questions of limitation and estoppel were also raised before the trial Court. Upon appreciation of the evidence led by the parties and keeping in view the settled principles of law, the learned trial Court decreed the suit of the plaintiff vide judgment and decree dated 15.12.1993, against which the appeal was dismissed as already noticed. It is contended by the learned counsel for the Appellant that the suit for partial pre-emption was not maintainable and the trial court ought not have to decreed the suit. The view for the trial Court is stated to be contrary to the judgment of Hon''ble Supreme Court in the case of Ram Chand v. Randhir Singh and Ors. (1994)108 P.L.R. 605 (S.C.).

I fail to see any merit in this appeal either on facts or on the question of law. The plaintiff was recorded as tenant in the property in question, which formed the part of larger piece of land to the extent of 5/6th share. It has been recorded in evidence by the learned trial Court that, in his own cross-examination the contesting defendants admitted that the plaintiff was tenant over the suit land even under the original owner. Following the decision of this Court in the case of Molu Ram v. Saroj Kumari 1973 P.L.J. 145 based upon the decision of Full Bench in the case of Moti Ram and Ors. v. Bakhwant Singh and Ors. (1967)69 PLR 1041, the suit of the plaintiff was decreed.

Reliance of the learned counsel for the Appellant on the case of Ram Chand (supra) is totally misplaced. In fact, this judgment clearly supports the case of the plaintiff in the suit. Hon''ble Supreme Court in the case of Ram Chand (supra) held as under :-

" If so the right thus is vested in the tenant who holds under tenancy of the vendor not only the land sold but even a part thereof, i.e. of the land sold. Thus on interpretation this view can be taken that when a tenanted part of land is involved in the sale, the tenant thereof has a right of pre-emption qua the entire sold land and the vendees cannot resist the same."

"Taking the language of the text and its plain advantageous meaning, we would rather give such an interpretation to the provision which would entitle a tenant to pre-empt a sale of agricultural land in which his tenanted land is included, on the strength of which he can claim the entire bargain in the exercise of this right of substitution over the vendee."

In view of the above settled principle of law and the fact that concurrent findings of fact arrived at by the learned Courts below are based on proper appreciation of evidence, the impugned judgment and decree does not call for any interference. The suit of the plaintiff has been rightly decreed by the Courts below and deserves to, be sustained by this Court in this Regular Second Appeal.

In the result, this second appeal has no merit and is dismissed in limine.