Chandu and others vs Gurcharan Singh and others

J.V. Gupta, J.—That one Bishakhi was Patedar Dwami of half share in the land measuring 44 kanals 6 marlas situated in village Mohmadpur Tehsil Fatehabad while the other half share was owned by Chandu, Partapa and Sheo Ram. He sold his share of perpetual lessee rights in favour of Gurcharan Singh etc. vendee-respondents vide registered sale deed dated 15th June, 1966 for Rs. 7500/- Chandu, Partapa and Sheo Ram plaintiff/appellants alleging their preferential right of pre-emption as co-sharer and first cousin, sued the vendee-respondents for possession by way of preemption on payment of Rs. 15441/-. In the written statement filed on behalf of defendants, it was pleaded that such a sale is not preemptible, because only the lessee''s rights were transferred and not the ownership rights which could be preempted. They also claimed expenses of registration and stamp and of improvements.

On the pleadings of the parties the following issues were framed: --

Whether the sale of the Dwami Pattadari rights are Pre-emptible ? OP. (onus objected to).

Whether the plaintiff has got a superior right of pre-emption ? OP.

Whether the sale price was fixed in good faith or paid ? OP.

If issue No, 3 is not proved, what is the market value 7 OD.

Whether the vendee incurred expenses of execution of sale deed and its registration ? If so, to what amount and what is its effect ? OD.

Whether the vendees affected improvements in the suit land ? If so, to what amount and to what effect ? OD.

Relief.

Issue Nos. 1 and 2 were decided in favour of the plaintiffs whereas issue Nos. 3 and 5 were decided in favour of defendants. Issue No 6 was partly decided in favour of vendees. With this finding, the plaintiffs suit was decreed on payment of Rs. 15441/- In appeal filed on behalf of the vendees/defendants, the learned District Judge reversed the finding of the trial Court under Issue No. 1 and came to the conclusion that the sale of the Dwami Pattadari rights were not pre-emptible. Consequently, the decree of the trial Court was set aside and the plaintiffs suit was dismised. Dis-statisfied with the same, the plaintiffs have come up in second Appeal in this Court.

The question to be determined in this appeal is whether the Dwami Pattedari rights are pre-emptible or not? Section 4 of the Punjab Pre-emption Act, 913 (hereinafter referred to as the Act) provides that the right of preemption shall mean the right of a person to acquire agricultural land or village immovable property in preference to other persons, and it arises in respect of such land only in the case of sales or of foreclosures of the right to redeem such property. Thus the right of pre-emption exists qua agricultural land etc. provided there is sale of such property.

In sub-section 5 of section 3 of the Act it is provided that sale shall not include--

(a) a sale in execution of a decree of money or of an order of a Civil, Criminal or Revenue Court or of a Revenue Officer ;

(b) The creation of an occupancy tenancy by a landlord, whether for consideration or otherwise.

Section 54 of the Transfer of Property Act, 1882 provides the definition of sale, which means that ''Sale'' is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised

Reading these provisions together, it is amply clear that before the transfer could be pre empted, it must be a sale which further means the transfer of ownership. Admittedly in the present case what has been sold vide sale deed dated 15th June, 1966 Exhibit D--3, are the Dwami Pattadari rights. In this situation it cannot be held that it is transfer of ownership as contemplated u/s 54 of the Transfer of Property Act. This view finds support from a judgment of this Court in Santa Singh Vs. Basanta Singh and Others, , wherein it has been held that right of Pre-emption u/s 4 of the Act is in respect of a sale and a sale necessarily implies transfer of ownership. The facts of this case are fully applicable to the facts of the present case.

Once it is held that it is not a transfer of the ownership rights, then the other point raised on behalf of the appellants that it falls within the definition of Agricultural land as provided in subsection (1) of section 3 of the Punjab Pre-emption Act is of no relevance.

It was also contended that though vide Exhibit D-3, Dwami Pattedari rights were sold to the defendants but before that according to the Learned Counsel for the appellants, the vendors had become the owner of the land by virtue of the provision of The Punjab Occupancy Tenants (vesting of Proprietory rights) Act, 1951, and therefore, the plaintiffs have the right to pre-empt the said sale. Admittedly no such plea was taken by the plaintiffs in their plaint, nor there was any such issue claimed by the plaintiffs in the trial Court As a matter of fact if it was so then the plaintiffs also would have become the owner of 1/2 of the land which they were holding as Pattadar, under the provisions of the said Act. No such evidence was produced on the record. In these circumstances, this contention of the Learned Counsel for the plaintiff-appellants could not be accepted.

As a result of the above discussion, this appeal fails and is dismissed with costs.