Aziz Uddin vs Ram Chander and another

Shamsher Bahadur, J.—This an appeal of the Plaintiff whose suit for preemption was decreed by the trial Judge but in the appeal preferred by the vendee-Defendant the learned District Judge has dismissed it.

In pursuance of the sale deed of August 11, 1959, registered in the office of the Registrar, Ballabgarh, on September 19, 1959, a parcel of land measuring 6 Kanals in village Renhera, tehsil Ballabgarh, district Gurgaon was sold by Shahabuddin for a sum of Rs. 4000/- to Ram Chandra Azizuddin, who described himself as a minor, but is now a major, brought a suit for preemption of this land as the son of Shahabuddin. The land was described for purposes of Court fee as agricultural land. In the written statement filed on behalf of the Defendant a plea was taken that the land was not agricultural but had been used for extraction of saltpetre and was described as Ghair Mumkin abadi. It was further pleaded that in consequence of the land not being agricultural advalorem Court fee on Rs. 4000/- was payable. The Plaintiff asserted that the land was agricultural land and had been shown to be under cultivation in the Khasra Girdawari of year 1959. The liability to pay advalorem Court fee was denied. I am making a reference to the detailed pleas on the question of the nature of the land and the Court fee payable thereon in view of the fact that this is now the only surving question in appeal.

The suit of the Plaintiff was resisted on many grounds and this gave rise to as many as eight issues two of these being thus worded:-

"Issue No. 2: Are these land not agricultural lands ? Issue No. 7: What is the proper valuation for Court fee and jurisdiction ?"

The learned trial Judge had no difficulty in deciding the substantial plea of the Defendant vendee that Aziz Uddin was not the son of Shahabuddin The Plaintiff was found to be the son of the vendor. It was further held that the sale was for Rs. 4000/- and not Rs. 2000/- as alleged by the Plaintiff. It was further found by the Court that the transaction of sale was neither collusive nor benami.

On the issue whether the land was agricultural or not, the trial Judge took the view that the matter was wholly irrelevant as to whether the land was agricultural or village immovable property as the Plaintiff had a right of preemption in either case u/s 15 of the Punjab Preemption Act, 1913, Sub-section (1) of which may usefully be reproduced:

(1) The right of preemption in respect of agricultural land and village immovable property shall vest -

(a) Where the sale is by a sole owner FIRST, in the son or daughter or son''s son (or) daughter''s son of the vendor.

X X X X

On the 7th issue, the learned trial Judge held that the land having been described as Ghair Mumkin abadi in the Khasra Girdawaris and there being evidence to show that it was dying vacant and use in the manufacture of saltpetre must be regarded as village immovable property liable to advalorem Court fee. In granting the decree for pre-emption therefore, the learned Judge gave a direction that the suit for possession would he decreed on payment of advalorem Court fee.

From the judgrment and decree of the Subordinate Judge an appeal was taken to the District Court which was heard by the Additional District Judge, Gurgaon, on 23rd of February 1962. The lower appellate Court framed the following three additional issues: -

Whether the property forming the subject matter of the sale is agricultural land for purposes of the pre-emption law ?

If the above issue is found against the Plaintiff whether the Plaintiff can be allowed to fall back for his success on the allegation that the property in dispute is village immovable property and if so whether the suit property is not village immovable property ?

Whether the Defendant vendee is entitled to the amount spent towards the execution and registration of the sale deed ? If so how much ?

The vendee went in second appeal to the High Court against the order of Additional District Judge. Gurgaon, and Mahajan, J., allowed this appeal on April 24, 1962. Considering that it was very doubtful whether a ground of pre-emption could be shifted the learned Judge considered that the order of remand was unnecessary. In this view of the matter, Mahajan, J , directed that the District Judge should hear the appeal on merits without any consideration of the additional issues which had been framed by the Additional District Judge. In other words, it was considered that the question whether the land was agricaltural or village immovable property was not material

When the case went back for decision on merits, the learned District Judge (now Gujral, J.) in the impugned order of appeal passed on September 20, 1962, held that the property was not agricultural land and the Plaintiff could not be allowed to plead the alternative case that the property in dispute constituted village immovable property.

In reaching this conclusion, the learned District Judge relied on Section 4 of the Punjab Pre-emption Act, 1913, which says that:

The right of pre-emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosures of the right to redeem such property.

It has to be observed that the persons in whom the right of pre emption vests in respect of agricultural land and village immovable property are set out in Section 15 of the Punjab Pre-emption Act, 1913. This provision really sets out the grounds on which the right of pre-emption can be based in respect both of agricultural land and village immovable property.

It is undeniable that the Plaintiff in a pre-emption suit cannot be allowed to shift the ground on which his claim is based For this proposition, the learned Counsel for the Respondent, Mr. Aggarwal, has brought to my notice the recent decision of the Hon''ble Chief Justice in Shankar Singh v. Chanan Singh 1968 C L. J 383, wherein it was held that the specific ground on which preferential right of pre-emptnn is sought must be pleaded in the suit within the period of limitation, and further that the relationship on which the right of pre emption is based must be speci-fically state u/s 15 of the Punjab Pre-emption Act, 1913 in the plaint within period of limitation

Mr. Aggarwal has further brought to my notice the decision given by me in Karnail Singh and Ors. v. Pran Nath, 1963 C. L. J 315, where I said that "in suit to enforce pre-emption which is a right in derogation of the freedom of contract the courts have to enforce the law strictly."

What the District Judge held was that the suit property not being agricultural land, and no plea having been taken specifically that it constituted village immovable property, the suit must fail.

Now with respect to the learned District Judge, I do not think that this is a correct inference to be drawn from a reading of Sections 4 and 15 of the Punjab Pre-emption Act, 1918(sic). The right on which the pre-emption is claimed must be specifically stated in the plaint. It is nowhere required by the law of pre-emption that the meticulous description of the subject matter of pre-emption should be stated in the plaint. It is a sufficient requirement of the statute, in my opinion, that the Plaintiff should bring his claim within the description of some one of the three properties in which the right of pre-emption vests u/s 4 of the Act. As observed by the trial Court, it matters not whether the subject-matter is agricultural land or village immovable property. The only difference between the two is in regard to court-fee. The reason why the Plaintiff was insisting that the subject-matter of the suit was agricultural land was for the purposes of court-fee and since that deficiency has been made up the real point of controversy no longer exists. The learned trial Judge approached the question in the right perspective when the observation was made that it was wholly irrelevant for purposes of determining the right of pre-emption whether the sale was in respect of agricultural land or village immovable property. In either case the Plaintiff had a right to obtain a decree for possession by preemption. In this view of the matter, this appeal must be allowed and the suit of the pre-emption decreed. Accordingly, I allow this appeal and set aside the judgment and decree of the appellate Court and restore that of the trial Court.