Chander vs Madan Gopal

G.C. Mital, J.—Kanshi Ram, Ram Lal and Chaman Lal sons of Kotu Ram and their mother Jiwani Bai sold the land in dispute in favour of Madan Gopal for Rs. 5000/. The sold property was once held by Kotu Ram and on his death it was inherited by his wife and his three sons in equal shares. The aforesaid sale was sought to be preempted by Chander on the ground that he was tenant of the land in dispute and had preferential right of pre-emption. The vendee contested the suit and pleaded that so far as 1/4 to share of Jiwani Bai vendor is concerned, since she had inherited that share from her husband, Section 15(2) of the Punjab Pre-emption Act, 1913 was applicable and under that provision a tenant had no right to pre-empt and therefore, her share was not pre-emptible. On this basis it was pleaded that the vendee became owner of 1/4th share held by Jiwani Bai, with the result that on the date the suit for pre-emption was filed the vendee was co-sharer to the extent of 1 /4th share in the land sought to be pre-empted and a co-sharer has preferential right u/s 15(1) of the Punjab Pre-emption Act, 1913 (hereinafter called ''the Act'') than a tenant, because co-sharer comes u/s 15(1)(b) fourthly, whereas tenant comes u/s 15(1)(b) fifthly. u/s 21-A of the Act the vendee could improve his status till the date of the filing of the suit and since 1/4th share of Jiwani Bai was not pre-emptible, therefore, the vendee became co-sharer and therefore, the suit for pre-emption was not maintainable. The trial Court decreed the suit for pre-emption qua 3/4th share of the land in dispute which represented the sale by the three sons but dismissed the suit for 1/4th share qua the share of Smt. Jiwani Bai. Against the aforesaid judgment and decree of the trial Court only the vendee had filed an appeal which was allowed by the Additional District Judge on the basis of decision of Lahore High Court in Phul Chand v. Sundar Das AIR (33) 1946 Lah 325, by accepting the contention that the vendee became co-sharer in the land in dispute before the suit for pre-emption was filed as the 1/4th share of Smt. Jiwani Bai was not pre-emptible The Plaintiff has come to this Court in second appeal.

After hearing the learned Counsel for parties, I find that the matter is fully covered by two decisions of this Court against the Appellant and in favour of the Respondent. In Ram Khhan v. Smt. Sharbati 1972 RLR 188, on similar facts, A.D. Koshal, J. held as follows:

Held, that it is well established that it is open to the vendee to defeat the right of the pre-emptor by clothing himself with a qualification equal or superior to that on the basis of which the pre-emptor comes into Court provided he does so before the pre-emptor files his suit and it is immaterial whether he does so through the transaction, a part of which is sought to be preempted or by a separate transaction.

Held further, that although Section 21-A of the Punjab Pre-emption Act which was added thereto in 1944, no longer permits any improvement, otherwise than by inheritance or succession, made in the status of a vendee after the institution of a suit for pre-pre-emption to affect the right of the pre-emptor in such suit, the proposition of law that the vendee can successfully resist such a suit by improving his status prior to its institution so as to acquire a qualification equal to or better than that which is the basis of the pre-emptor''s claim is undisputed.

The aforesaid view as also view in Phul Chand''s case (supra) was followed by C.S. Tiwana, J. in Anup Singh v. Ilam Chand 1978 RLR 588. Following the aforesaid decisions, it is held that the vendee became co-sharer in respect of 1/4th share of the land in dispute which belonged to Jiwani Bai as the same was not pre-emptible with the result that the purchase of 3/4th share belonging to the sons by the vendee was also not pre-emptible as the purchase was by a co-sharer.

For the foregoing reasons, I do not find any merit in this appeal and dismiss the same. Since the two decisions of this Court referred to above came into being after the filing of this appeal, I leave the parties to bear their own costs.