Banwari and another vs Mohab Singh and others

D.S. Tewatia, J. (Oral)

This appeal is filed by Banwari and Ram Sarup, vendeedefendants. They had purchased the land in dispute on 14.8.1967 by two separate registered saledeeds from Onkar who himself had purchased the same from Phul Singh vendor on 13.7.1967. The plaintiffrespondent, son of the vendor, sought to preempt the sale dated 13.7.1967 of the land in dispute in favour of Onkar, hereinafter referred to as vendee No. 1.

Vendees No. 2 Banwari and Ram Sarup, who were impleaded as defendants, resisted the suit on the ground that they being the tenants on the land in dispute on the date on which the first sale was effected by the vendor in favour of vendee No. 1 and also at the time when vendee No. 1 had effected the sale in their favour on 14.8.1967, so by virtue of section 17A of the Punjab Security of Land Tenures Act, 1953, hereinafter referred to as the Act, the sale in their favour by vendee No. 1 was not preemptible.

The trial Court found that vendees No. 2, Banwari and Ram Sarup, were the tenants under the vendor upon the land at all relevant time. Onkar, vendee No. 1 could validly effect the sale of the land that he had purchased from the vendor in favour of vendees No. 2, Banwari and Ram Sarup, without attracting the doctrine of lis pendence. The trial Court also found that Banwari and Ram Sarup, vendees No. 2, were scheduled castes and sale in their favour by virtue of the Punjab Government notification No. 213R/IV62/1026, dated 2/3.2.1962, could not be preempted.

On an appeal, the first appellate Court ruled out the claim of vendees No. 2, Banwari and Ram Sarup, to the extent it was based on the finding that they were scheduled castes and sale in their favour was not preemptible, for it found as a fact that no plea to the effect that Banwari and Ram Sarup were members of the scheduled caste was taken by them in the written statement and no amount of evidence could be looked into in support of a plea which was not take in the pleadings.

In my opinion, no fault can be found with this approach of the first appellate Court.

However, the first appellate Court''s approach to the second ground of the claim of vendees No. 2 is not only open to serious doubt but, in fact, is clearly untenable. The learned first appellate Court, although accepted the finding of the trial Court that at all relevant time Banwari and Ram Sarup were tenants under the vendor, yet it held that fact would not be of much relevance, as section 17A of the Act applied only to suits and decrees for possession in respect of sales made by the landowners to the tenants and it did not apply where the sale of land was made to a stranger and subsequently, the tenant purchased the same from him. In support of this, the learned first appellate Court relied upon the ratio of this Court in Malhu and others v. Sham Lal and others, 1965 PLR 1034. 7. In my opinion, the ratio of that case goes against the view that the first appellate Court has taken. It was held in that case that the doctrine of lis pendence did not apply when a vendee transferred during the pendency of this suit of preemption the purchased property to another person in recognition of that other person''s right of preemption and did so within the period of limitation and in such a case the second vendee stood substituted in place of the first vendee and the suit for preemption should fail.

In the present case, the second vendees replaced the first vendee even before the suit was filed and, therefore, the above ratio holding that the preemptor had to contend, where the first vendee substituted himself with second set of vendees, and not with the first vendees, is applicable with greater force.

This Court in the aforesaid decision also laid down the second proposition that where the second vendee had no right of preemption on the date of first sale, the second vendee could not defeat the suit for preemption, even though he had subsequently acquired a right of preemption. It appears that the first appellate Court was misled by the second proposition rather it applied the second proposition to the facts of the present case.

The second proposition enunciated in the above said judgment in Malhu and others'' case (supra) is not attracted to the facts of the present case. In the present case, apart from the fact that the tenants had a right of preemption under section 15 of the Act, their position as vendees is made invincible by section 17A of the Act if it is the sale in their hand that had to be pre empted and not the first sale. The finest proposition enunciated in the above said case clearly shows that when the first vendor within the limitation transfers the land to another person, then the another person stands substituted as second vendee in place of the first vendee and it is the deemed sale in favour of the second vendee that has to be preempted by showing a right superior to that of the second vendee.

For the reasons aforementioned, I set aside the judgment and decree of the first appellate Court and restore that of the trial Court while allowing the appeal and dismissing the suit with no order as to costs.