Babu Ram and others vs Prem Singh and others

S. D. Bajaj, J.

Jagmal, Raj Kumar and Shiv Chand three sons of Kehar Singh, sold their undivided half share measuring 16 Kanals 5 Marlas out of 32 Kanals 10 Marlas of land comprised in Khewat Khatauni No. 29/55, Khasra Nos. 24/20/2, 21, 22/2 and 29/1, 2 and 9 situated in village Ramgarh alia''s Arjan Majra, tehsil Jagadhri, district Ambala to defendant appellants for Rs. 30,000/ (Rupees thirty thousand only) vide registered sale deed dated 12th February, 1981.

Prem Singh and Singh Ram cosharers in the suit land as owners of remaining undivided half share of land sold to defendantvendeeappellants, filed against the purchasers a suit for possession by preemption of the land sold. Vide judgment dated 28th February, 1984, learned trial Court decreed the suit in respect of 15 Kanals 5 Marlas of land on payment of Rs. 35,084/ The claim in respect of remaining I Kanal of land comprised in Kasra No. 24/20/2 was negatived on the ground that ghair mumkin johar (waste land) comprised therein had been reclaimed by the vendees and therefore the suit for preemption in respect of it was not competent. In appeal the learned Additional District Judge, Ambala, vide his assailed judgment of 15th November, 1984, affirmed the decision of the learned trial Court.

Feeling aggrieved against the judgment rendered by the learned Courts below, vendee defendantappellants have filed in this Court Regular Second Appeal No. 3100 of 1984. Even the plaintiffrespondents, who did not file any appeal or put in any crossobjections before the learned Court of first appeal, have assailed the judgment rendered by the learned trial Court on 28th February, 1984 against them in regard to I Kanal of land comprised in Khasra No. 24/20/2 in regard to its being not preemptible, through crossobjections filed in this Court asserting that land aforesaid being ghair mumkin johar was not waste land, and. therefore, the question of its reclamation or exemption from preemption on account of reclamation does not arise and, therefore, the preemption suit, filed by them should be decreed in respect of it as well.

Our learned brother J. V. Gupta, J., before whom the matter was listed initially on 24th March, 1987, felt that his earlier findings rendered in Anant Ram and others v. Khazan Singh and others, 1986 Punjab Law Journal 621 were in conflict with two Full Bench decisions of this Court in Garib Singh v. Harnam Singh and others, 1972 Punjab Law Reporter 186 and Karnail Singh and others v. Jasbir Singh and another, 1974 Punjab Law Journal 226 and, therefore, referred the matter to a Larger Bench for decision.

Relevant legal provisions of the Punjab Preemption Act, 1913 read :

Section 5. No right of preemption shall exist in respect of..........

(b) the sale of agricultural land, being waste land reclaimed by the vendee.

Explanation For the purposes of this section. the expression "waste land" means land recorded as, banjar of any kind in revenue records and such "Ghair Mumkin lands as are reclaimable.

Section 21A. Any improvement, otherwise than through inheritance, or succession or made in the status of a vended defendant after the institution of a suit for preemption shall not affect the right of preemptor plaintiff in such suit "

The factum of reclamation of I Kanal of land eomprised in Khasra No. 24/20/2 and described as Ghair Mumkin Johar in revenue records upto 31st October, 1981 was not disputed before the learned trial Court. In Khasra Girdawari copy Exhibit DY this land is recorded to have been reclaimed and brought under cultivation by sowing wheat crop therein in Rabi 1982 which is sown in October, 1981 land in respect of which girdawari is recorded to have been made on 7th March, 1982. Vendeedefendant appellants obtained possession of this land from the mortgagees on 27th August, 1981 vide Roznamcha report No. 546 dated 27th August, 1981 copy Exhibit DX and presumably started the process of reclamation in right earnest. Shiv Ram one of the vendeedefendant appellants stated before the learned trial Court as D.W. 1 on 10th November, 1983, [Transliteration of Hindi portion is givenEd. "20/2 mein ek kanal ghair mumkin johar tha. Jis ko karaha lga kar kashat ke qabil banayya. Teen faslon se us par hamari kashat chal rahi hai ... Karaha 39 ghantey lga tha. Maheena September ya October ka tha 1981 mein Karaha 75/ per ghanta (PH) lagwaya tha. Raseed Jaipal nein khud likhee thee." Further more the factum of reclamation aforesaid as claimed by defendantvendees having been duly made was conceded by the plaintiff preemptorrespondents on 27th July, 1983. Prem Singh stated before the learned trial Court "Main vendee nein jo improvement ki thi whai bhi manta hoon jo w/s mein hai." It was on the basis of the evidence and admission aforesaid that the learned trial Court decided issue No. 6A in favour of defendantvendee appellants Finding of the learned trial Court on issue No. 6A having not been assailed by the plaintiffpreemptorrespondents before the learned Court of first apeal, they cannot be allowed to go back on their admission in this Court through crossobjections and assert that the land comprised in Khasra No. 24/20/2 was neither reclaimable nor had it actually been reclaimed.

Sole question for determination by us is the effect of this reclamation on the maintainability of the suit for preemption. Basing his argument on the observations made by our learned brother J. V. Gupta, J., in Anant Ram and others v. Khazan Singh and others, 1986 Punjab Law Journal 621, learned counsel for the vendeedefendant appellants asserted that through the reclamation aforesaid his clients became cosharers with the plaintiffpreemptorrespondents in khata and, therefore, the plaintiffpreemptorrespondents could not claim superior right of preemption. The argument is of no avail and stands wholly negatived by a Full Bench of this Court in Karnail Singh and others v. Jasbir Singh and another, 1974 Punjab Law Journal 226 which reads "There is no provision in the Punjab Preemption Act, which prohibits the vendee from reclaiming the land during the pendency of the preemption suit to defeat the suit of the preemptor. Section 21A of the Punjab Preemption Act can have no application to such reclamation of the waste land. Section 21A refers to the improvement in the status of the vendee during the pendency of the suit and does not refer to the improvement made in the property or land, and has no application to Section 5(b) of the Act. By reclaiming waste land, there is no question of improvement being made by the vendees in their status." In line with the Full Bench observations aforesaid and speaking with utmost respect to the learned Single Judge we hold that the view taken by our learned brother J. V. Gupta, J., in Anant Ram and others v. Khazan Singh and others, 1986 Punjab Law Journal 621, does not lay down correct law and is, therefore, legally infirm. The effect of reclamation is that the suit for preemption in respect of the reclaimed land only is rendered incompetent. Finding recorded by the learned trial Court in this regard is, therefore, affirmed.

In result the appeal and the crossobjections both fail and are dismissed. Both the parties are, however, left to bear their own costs of the proceedings in this Court.

S.P. Goyal, J. 9. I have gone through the judgement of my learned brother. Though I agree with the final result of the appeal but for different reasons.

This appeal was referred to the larger Bench by J. V. Gupta doubting the correctness of his own judgment in Anant Ram and others v. Khazan Singh and others, 1986 Punjab Law Journal 21 because of the earlier two Full Bench decisions of this Court in Garib Singh v. Harnam Singh and others, 1972 Punjab Law reporter 186 and Karnail Singh and others v. Jasbir Singh and another, 1974 Punjab Law Journal 226. The question involved is as to whether the vendee can be said to have improved this status within the meaning of Section 21A of the Punjab Preemption Act (hereinafter called `the Act'') by reclaiming the waste land after its purchase. The facts which have given rise to this question have already been noticed in detailed by my learned brother and, as such, need not be repeated again.

The two relevant provisions of the statute, i.e. Section 5(b) and Section 21A of the Act read as under :

"Section 5. No right of preemption shall exist in respect of (a) ...

(b) the sale of agricultural land, being waste land reclaimed by the vendee.

Section 21A Any improvement, otherwise than through inheritance of succession made in the status of the vendee defendant after the institution of a suit for preemption shall not affect the right of preemptorplaintiff in such suit."

Section 5(b) entitles a vendee, who has purchased waste land, to defeat the right of preemption by reclaiming it whereas Section 21A provides that any improvement made, except through inheritance or succession in, the status of a vendee after the institution of a suit shall have no effect on the right of preemptor. The proposition of law that there is no right of preemption of the sale of waste land which was reclaimed by the vendee after its purchase and that the provisions of Section 21A do not control the operation of Section 5(b) in any manner, was settled authoritatively by the Full Bench of this Court in Karnail Singh''s case (supra). But there was no such question, as is involved in the present case, before the Full Bench. So, any observation made in the judgment of the Full Bench in this regard would obviously be obiter dicta and have no bearing on the present case. The question involved here is as to whether, apart from defeating the right of preemptor with respect to the waste land reclaimed by him, the vendee can also defeat the right of the preemptor with respect to the remaining land purchased by him out of the joint Khewat which was not waste land at the time of purchase, the sale with respect to the waste land having become unimpeachable and he thereby having become a cosharer in the Khewat. The question can be simplified by saying as to whether by acquisition of the status of a cosharer by reclaiming the waste land, the vendee can be said to have improved his status within the meaning of Section 21A of the Act qua the arable land where the sale consists of both the waste land and arable land. There can be no dispute that by reclaiming, the waste land, the vendee does not improve his status qua that land in any manner and the right of preemption is defeated not because of the improvement in his status, but because of the provisions of Section 5(b) of the Act. The right of preemption in Karnail Singh''s case (supra) was claimed by the preemptor as son of the vendor. A part of the land, subject matter of sale, had been reclaimed by the vendee during the pendency of the quit in the trial Court and the remaining during the Second Appeal in his Court. The question debated in that case was : upto what stage the reclamation could be made so as to defeat the right of preemption The answer given was that the reclamation would be effective if made at any time prior to the passing of the decree, whether by the trial Court or by any of the Appellate Courts, Obviously there was no question before the Bench as to whether the acquisition of the status of a cosharer by the vendee of the waste land would amount to improvement in his status with respect to the land which was under cultivation at the time of the sale within the meaning of Section 21A of the Act or not. So far as the decision in Garib Singh''s case (supra) is concerned, though the meaning of word status used in Section 21A was explained, but otherwise it has not the slightest bearing on the present case as the question involved there was as to whether vendee, who has joined a stranger with himself in the sale, can be said to have improved his status within the meaning of Section 21A by getting the share of the stranger transferred in his favour during the pendency of the suit. The answer rendered was that the purchase of the share of the stranger by the vendee does result in the improvement in the status of the latter within the meaning of Section 21A of the Act. It passes my comprehension as to how it can be said that the question involved in the present case stands, in any way, answered in Garib Singh''s case (supra). So, the decision in Anant Ram''s case (supra) does not run counter to the two Full Bench decisions, noticed above. The question, however, still remain as to whether Anant Ram''s case (supra) was not correctly decided and, as such, needs reconsideration.

So far as the question involved in the present case is concerned, the only rational answer would be the one given in Anant Ram''s case (supra). The vendee, who was not a cosharer in the Khewat out of which the land in dispute was purchased, does not acquire the status of a cosharer by the said sale, his purchase being subject to the right of preemption by the other cosharers. Even if another sale of land takes place out of the same Khewat after his purchase, the vendee cannot claim the right of, preemption against such sale as a cosharer by virtue of the provisions of Section 28A of the Act so long as the sale in his favour is liable to be preempted. But the moment the sale of the land or any part thereof in his favour becomes unimpeachable by virtue of the provisions of Section 5(b) or because of the limitation to preempt his sale having expired, he acquires the status of a cosharer in the Khewat and can use that status for defeating the right of preemption of other cosharers or for acquiring the land sold after his sale in favour of a person who was not a cosharer, by preemption. Obviously if the sale has become unimpeachable by any action of the vendee, it results in the improvement of his status, i.e. from a noncosharer he acquires the status of cosharer in the Khewat and, as such, this would certainly be an improvement in his status within the meaning of Section 21A of the Act. However, for the determination of the dispute between the parties, it has further to be found as to when the improvement in the status of the vendee took place. If it had taken place before the filing of the suit, the appeal has to be allowed, but not otherwise.

14 . Both the Courts below have recorded a concurrent finding that out of the land sold, one kanal land had been reclaimed after the sale by the vendee, but none of them has recorded any finding as to when it was so done. As both the parties have led their evidence on this question, we propose to record the finding ourselves instead of remanding the case and called upon the learned counsel to address arguments in this regard.

The learned counsel for the appellants, in support of his contention that the waste land had been reclaimed prior to the filing of the suit, relied on the entry in the Khasra Girdawari Exhibit DY wherein one kanal land out of Khasra No. 20/2 which was previously described as ghair mumkin johar (pond) has been shown to be under cultivation in Rabi 1982. As the Rabi crop is sown in the month of November or December, it was argued that the land had been reclaimed long before January 27, 1982, when the suit was filed. Entries in the Khasra Girdawari do not carry any presumption of truth. Moreover, the entry came into existence after the filing of the suit and, as such, much reliance cannot be placed on it. As opposed to that, there is the statement of the vendee himself who was the best person to tell as to when the land was reclaimed. He deposed that the land was under their cultivation from the last three crops. This statement was made on November 10, 1993. The period. of last three crops would go back upto Kharif crop of 1982. which is sown in the month of July but never earlier than the month of May. So, according to the statement of the vendee himself, the land was brought into cultivation long after the filing of the suit. It was probably for this reason that no plea was taken in the original written statement that the vendee had acquired the status of a cosharer and, so, suit of preemption was not maintainable and the plea was raised only in the amended written statement. In the face of the statement of the vendee and the other circumstances, no reliance can be placed on the entry in the Khasra Girdawari and it is held that the said one kanal land was reclaimed after the filing of the suit. The improvement in the status of the vendee taken place after the filing of the suit, would be of no consequence so far as the right of the plaintiff to preempt the sale, except the one reclaimed, is concerned. Therefore, the appeal and the crossobjection have to be dismissed with no order as to costs.