Asa Nand vs Swatantar Paul Singh and others

D.S. Tewatia, J.—This appeal arises from a suit filed by the Plaintiff Respondents for possession of the land in dispute claiming the light to pre - ermpt the sale on the ground of their having a superior right of pre-emption as compared to the vendees, the Defendant, Appellants in this case. The Defendants, on the other hand, in their written statement, pleaded that the Plaintiffs had no right of pre emption, as the land at the time of sale was banjar qadim and Defendants 1 and 2 had reclaimed the same. It was also pleaded that the Defendants had constructed a house on the land in dispute prior to the sale as well as subsequent to the sale and spent a lot of money in effecting improvements thereon and since the guardian of the Plaintiffs had seen them effecting improvements on the said land, they were estopped from filing the suit. They also pleaded that they were tenants over the land at the time of the sale and the sale was not pre-emptible. On the basis of the pleadings of the parties, the trial Court framed the following issues-

Have the Plaintiffs better right of pre-emption?

Has the sale money been actually paid or bona fide fixed?

What is the market value of the land in suit?

Are the vendees tenants over the land in dispute since long including the date of sale and thus is the present suit incompetent?

Is the land in dispute waste and have the vendees, reclaimed it and is, therefore the suit incompetent?

Have the vendees made the improvements and if so, what amount they are entitled to?

Is there estoppel against the Plaintiffs?

Are the vendees entitled to cost of the sale?

Relief.

The Trial Court decreed the suit. However, on appeal by the Defendants, the first appellate Court modified the decree of the trial Court to the extent that the Defendants shall be entitled to remove the malba from the disputed land within three months from the date of the decision and dismissed the appeal. It is against this decision of the Additional District Judge Gurgaon, dated 26th December, 1967, that the present appeal has been preferred to this Court by the Defendants.

Mr. H. L. Sarin, learned Counsel for the Appellants, has urged that the sale in question was not preemptible, as the land in dispute was not an agricultural land, as alleged by the Plaintiff-Respondents in their plaint. The Defendant-Appellants, in their written statement, nowhere agitated that since the land was not an agricultural land, so the pre-emption suit was not maintainable, and accordingly no issue was framed by the Court on this point. An attempt was made by the Defendants during the pendency of the appeal before the lower appellate Court to secure permission to amend the written statement, but their application to that effect was not allowed and the lower appellate Court had given good reasons for the same. I have also not been persuaded by the learned Counsel for the Appellants to permit them to rake up that point in this second appeal. However, even if, for the sake of argument, the disputed land is not considered to be an agricultural land, it is not going to make any difference to the fate of the case, because Section 15 of the Punjab Pre-emption Act is attracted not only to the sale of the ''agricultural land'', but also to the sate of the ''village immovable property'' which expressions are defined in Section 3 of the said Act as follows;

In this Act, unless a different intention appears from the subject or context,-

(1) ''agricultural land'' shall mean land as defined in the Punjab Alienation of Land Act, 1990 (as amended by Act 1 of 1907), but shall not include the rights of a mortgagee, whether usufructuary or not, in such land;

(2) ''village immoveable property'' shall mean immoveable property within the limits of a village other than agricultural land;

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Since the agricultural land as defined in the Punjab Pre-emption Act means ''land'' as defined in the Punjab Alienation of Land Act, so it is pertinent to notice at this stage the definition of ''land'' as given in Sub-section (3) of Section 2 of the Punjab Alienation of Land Act, which is as follows: -

"2. In this Act, unless there is any thing repugnant in the subject, or context,-

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(3) the expression ''land'' means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes -

(a) the site of buildings and other structures on such land;

(b) a share in the profits of an estate or holding;

(c) any dues or any fixed percentage of the land revenue payable by an inferior landowner to a superior landowner;

(d) a right to receive rent,

(e) any light to water enjoyed by the owner or occupier of land as such;

(f) any right of occupancy;

(g) all trees standing on such land

Learned Counsel for the Appellants in this rase has tried to show that the land in dispute is not the village immovable property, for the reason that it lies outside the abadi deh of the village. A bare perusal of the definition of the ''village immovable property'' makes it clear that any land situated within the limits of a village, which is not an agricultural land is to be considered ''village immoveable property''. The learned Counsel has tried to construe the words within the limits of a village'' as being synonymous to the expression ''within the abadi deh''. I am afraid, there is no justification for the construction which the learned Counsel has tried to put on the words ''within the limits of a village''. He has referred me to a decision of this Court reported in Ditto Ram v. Balwant Rai and Ors. (1959) 61 P.L.R. 869., to show that once it is held that the land in dispute is not an agricultural land then nothing else remains in the case and the same is bound to be dismissed. The principle enunciated in Dittu Ram''s case is not at all applicable to the facts of the present case, because in that case the land, which was the subject-matter of the sale, was situated within the municipal limits of Hissar town and, therefore, the Plaintiff in that case could only succeed if the land in dispute was held to be an agricultural land, otherwise the town immovable property did not attract the application of Section 15 of the Punjab Pre-emption Act and so when in the case it was held that the land in dispute was not an agricultural land, there was no option but to dismiss the suit. The facts of the case in hand are entirely different. Here, the land in dispute is situated in the village and even if it is held that it is not an agricultural land it still remains the ''village immovable property'' and provisions of Section 16 will be applicable to the land in dispute in this case.

The learned Counsel for the Appellants has next drawn my attention to Section 5 of the Punjab-Pre-emption Act which reads-

5 No right of pre-emption shall exist in respect of the sale of or foreclosure of a right to redeem-

(a) a shop, serai or katra;

(b) a dharmsala, mosque or other similar building.;

and has tried to make out a case that since the land in dispute was a waste land, being banjar qadim, so the construction of a house by the Appellants on that land tantamounts to the reclamation of the said waste land and thus the sale of the said land is not pre-emptible in view of Section 5 of the Punjab Pre-emption Act. I am afraid, there is no merit in this contention of the learned Counsel either, because reclamation of waste land means to make it culturable or fit for agricultural purposes and the construction of a house over it cannot amount, by any stretch of imagination, to the reclamation of the said land.

The learned Counsel for the Appellants has lastly urged, basing his arguments on a decision of this Court reported in Shankar Singh v. Ckanan Singh (1968) 70 P.L.R. 455., that in a suit for pre-emption a specific ground on which a preferential right of pre-emption is sought by the Plaintiff, must be taken up in the suit within the period of limitation, otherwise after the period of limitation he cannot be permitted to specify the ground or urge another ground if he failed to prove the ground already urged in the plaint after the expiry of the period limitation. The learned Counsel urged that once it is held that the land in dispute is not an agricultural land, then even if the land is held to be the village immoveable property the suit of the Plaintiffs can not be decreed, because once he fails on one ground specified by him in his plaint he cannot urge another ground after expiry of the period of limitation and for this submission he has tried to draw sustenance from the following observations of Mehar Singh, C.J. in Shankar Singh''s case-

In this case all that Chanan Singh Plaintiff did was to say that the vendors are his collaterals but Section 15 of Punjab Act 1 of 1913 in such relationship by itself does not give a right of pre-emption. A particular defined relationship does give a right of pre-emption and. if on the ground of relationship such a right is. qlaimed then obviously the particular relationship referred to as a ground in Section 15 of Punjab Act 1 of 1913, has to be stated in the plaint within the period of limitation. If after the period of limitation such an attempt is made it can not be permitted to defeat a right that has accrued to the vendee to defeat the pre-emptor''s claim as not coming within the statutory provision upon which reliance is placed. Obviously, the learned Judge was wrong in allowing the amendment.

I am afraid, this ruling again is not relevant to the facts of the present case, because the pre-emptors have not urged any new groud to establish their superior right of pre-emption. Here, at best, the land in dispute was misdescribed as being an agricultural land, though the same happens to be the village immoveable property. However, be that as it may, the Appellants can not make out any point from the fact of the land not being the agricultural land, because they can not be allowed to take up this point at this stage.

For the reasons recorded above, this appeal fails and the same is dismissed. but there is no order as to costs. The Appellants are directed to remove the malba, if any, from the land in dispute within three months srom today.