Damodar and others vs Hari Singh and others

Mehar Singh, C.J.

1.An area of 78 Kanals and 6 Marlas land, in the revenue estate of village Dhanana, in Hissar district, was in the co-ownership of three brothers Janardan, Ram Ditta and Damodar, comprising of Survey Nos. 224/9/1 (4 Kanals), 224/10 (8 Kanals), 224/11/1 (7 Kanals and 4 Marlas), 225/5/1 (3 Kanals and 11 Marks), 224/9/1 (4 Kanals), 224/1 (8 Kanals), 224/2 (8 Kanals), 224/12 (8 Kanals), 225/4 (7 Kanals) and 12 Marlas), 225/5/2 (4 Kanals and 4 Marlas), 225/6 (8 Kanals and 225/7 (7 Kanals and 12 Marlas) Hari Singh Defendant was tenant of 54 Kanals and 6 Marlas under the three brothers out of the total area of the above survey numbers leaving out Survey Nos. 224/9/1 (4 Kanals), 224/9/2 (8 Kanals), and 224/9/12 (8 Kanals), of which area comes to 24 Kanals. So out of the total holding of the three brothers, Hari Singh Defendant was tenant of 54 Kanals and 6 Maralas and not tenant of the remaining 24 Kanals.

On September 25/1961, by a registered sale-deed Exhibit D. 1, Janardan sold his one-third share of the total holding in the survey numbers as given above in favour of Hari Singh Defendant and his two brothers, Diwana and Chhotu in equal shares, for a consideration of Rs. 4,000/-On July 17, 1962, Damodar Plaintiff, brother of Janardan Defendant-vendor, instituted a suit for possession of the land sold by the latter to Hari Singh Defendant and his brothers by claiming a preferential Tight of pre-emption with regard to the same acocrding to Section 15(1)(a) Secondly, of the Punjab Pre-emption Act, 1913 (Punjab Act 1 of 1913). according to which a brother of the vendor has been given a right to pre-empt sale of agricultural land. On August 24 1962, three Defendant, the vendees, filed a written statement to the claim of the Plaintiff, in which a plea was taken by the Defendants, among other pleas, that Hari Singh Defendant had been tenant of the land in suit for very many years and, therefore the plantiff had no preferendtial right to pre empt the sale in their favour. The other pleas taken by the Defendants in defence are no longer material at this stage. On September 21, 1962, during the pendency of the suit and before the expiry of one year from the date of the sale deed. Exhibit D. 1, Diwana and Chhotu, Defendants, sold their two third share in the land in suit to their brother Hari Singh Defendant by a registered sale deed, Exhibit D. 2. So on September 21, 1962. Hari Singh Defendant became owner of the total area of 26 Kanals and 2 Marlas one third share of Janardan Defendant, in consequence of the two sale-deeds, the first Exhibit D. 1, and the second, Exhibit D. 2.

On January 11, 1963, the learned trial Judge dissmissed the suit of the Plaintiff, being of the opinion that during the pendency of the suit and before the expiry of one year from the date of the first sah-deed, Exhibit D. 1, Hari Singh Defendant by reason of purchase under the second sale-deed. Exhibit D. 2. of two third share of his two brothers had improved his position by becoming owner of the whole of the area sold by Janardan Defendant, and as he was a tenant of the land, so he defeated the Plaintiff''s right of preemption. The learned Judge referred to the decision of Dua J., in Ram Nath v. Ram Chand(1960) 62 P.L.R. 247 in which the learned Judge had held that it is well settled that it is open to a vendee to defeat the suit of a pre-emptor by all legitimate means, and if the vendee transfers the property in favour of a person who has also a superior right of pre emption than the vendee, and against whom the Plaintiff-pre-emptor cannot successfully assert his pre-emptive right, such means cannot be considered to be illegitimate or hit by the rule of lis pendens. It is apparent that on facts that case has no bearing on the facts of the present case. On Plaintiff''s appeal, the learned District Judge reversed the decree of the trial Court on February 19, 1964, and decreed the claim of the Plaintiff, being of the opinion that the improvement made in his position by Hari Singh Defendant during the pendency of the Plaintiff''s suit by purchase of two third share of his two brothers under the sale-deed, Exhibit D. 2, though within a year from the date of the sale-deed, Exhibit D. 1, was hit by section 21 A of Punjab Act1 of 1913 which prohibits a vendee improving his position to defeat a suit for pre emption alter the suit has been instituted. In this respect he relied upon Tehoo Ram v. Dalip SinghA.I.R. 1953 Punj. 128. The learned District Judge also pointed out, in spite of Jang Singh v. Hardial Singh(1962) 64 P.L.R. 1152 having been cited before him, that in the present case the sale of land under Exhibit D. 1, was an indivisible sale because, although the vendees'' shares have been stated in the sale deed, Exhibit D. 1, ''the consideration consists of one consolidated amount of Rs. 4,000/-''. On second appeal, a learned Single Judge by his judgment and decree of August 19, 1965, reversed the decree of the Court of first appeal restoring that of the trial Court, being of the opinion (a) that there is a distinction between a vendee improving his status to defeat a pre-emptor during the pendtncy of the suit as referred to in Section 21-A of Punjab Act 1 of 1913 and his removing a defect which places him in a position to have the suit of the pre-emptor dismissed, which last situation is not covered by Section 21-A of the said Act, relying in this respect on a Full Bench decision of the Lahore High Court reported as Ali Mohammad v. Mohammad Din (1942)23 Lah. 190 and (b) that Hari Singh Defendant having been a tenant of the land in suit, purchase of the same by him has been protected by Sub-section (1) of Section 1/-A of the Punjab Security of Land Tenures Act, 1953 (Punjab Act 10 of 1953). This is an appeal under Clause 10 of the Letters Patent by the Plaintiff from the judgment and decree of the learned Single Judge.

The share of Janardan. Defendant vendor, in the total holding was 26 Kanals and 2 Marlas. This he sold to Hari Singh Defendant and his two brothers. The total holding of the three brothers, as stated, was 78 Kanals and 6 marlas. Hari Singh Defendant alone was tenant under the three brothers of 64 Kanals and 6 Marlas of that total holding. One-third share was sold to him and his two brothers by Janardan Defendant. As no defined and specific survey numbers were sold, so the one-third share, measuring 26 Kanals and 2 Marlas sold to this Defendant and his brothers when taken over the total holding of the three brothers would come to this, that out of it proportionally 8 Kanals was not under the tenancy of Hari Singh Defendant, but the remaining 18 Kanals and 2 Marlas was under his tenancy. So far as the last-mentioned area of 18 Karals and 2 Marlas is concerned, Hari Singh Defendant purchased under the sale deed, Exhibit D 1, one-third share in it, in other words, he purchased 6 Kanals and 6 Sirsahis of land of his tenancy under Janardan vendor and his two brothers, while the remaining 12 Kanals, I Marla and 3 Sirsahis came to the share of his two brothers, who were not tenants under the vendor and his two brothers.

In Sub-section (1) of Section 17-A of Punjab Act 10 of 1953 a sale of land to a tenant in his tenancy is not pre-emptible under the provisions of Punjab Act 1 of 1913. So whatever land was in the tenancy of Hari Singh Defendant and has been sold to him under the sale- deed, Exhibit D 1, is protected from any right of pre-emption under the provisions of Punjab Act 1 of 1913. No doubt the last mentioned Act having been amended by the Punjab Pre-emption (Amendment) Act, 1960 (Punjab Act 10 of 1960), has, on and from February 4, 1960 given a tenant a right of pre-emption in regard to the land of which he has the tenancy u/s 15(1)(a), Fourthly, of the same, but that right is deferred to right of pre-emption vesting in the brother of the vendor according to Section 15(1)(a). Secondly, of the same, a right under which the Plaintiff instituted his suit. So while the Plaintiff, being brother of the vendor, can claim a superior right of pre emption under s 15(1)(a), Secondly, as against him Hari Singh Defendant cannot succeed unders. (15)(a), Fourthly, of the same Act. This has, therefore, been essentially a case in which Hari Singh Defendant can only seek protection under Sub-section (1) of Section 17-A of Punjab Act 10 of 1953 and cannot pursue his right of pre-emption u/s 16(1)(a). Fourthly, because of the Plaintiff''s prior similar right under that very section, sub-clause Secondly. As it is a case of Hari Singh Defendant saving his title by reason of the protection available to him under Sub-section (1) of Section 17-A of Punjab Act 10 of 1953, no question of his. either improving his right as to be equal or superior to the right of pre-emption of the Plaintiff so as to defeat him. or of his removing any defect in his title so as to come to the level of the rights of pre emptor really arises, and, therefore Ali Mohammad''s case has no bearing on the facts of the present case, nor the case of Hayat Bakhsh v. Mansabbar KhaiA.I.R. 1935 Lah. 529. In the present case, when Hari Singh Defendant purchased the two-third share of his two brothers under sale-deed, Exhibit D. 2, during the pendency of the Plaintiff''s suit, he was not in any way improving his position qua the Plaintiff with regard to any right of pre-emption in him so far as the land in suit has been concerned. His brothers did not sell and indeed cannot be said to have sold their share to him in answer to any superior right of pre-emption in him, because no such right can possibly be claimed by a co-vendee. Hari Singh Defendant could not have pre empted the sale of two third share in favour of his brothers under the sale-deed, Exhibit D 1, under which he himself has been a vendee of the remaining one third share. So here is a case in which Hari Singh Defendant neither improved his position having regard to Section 21-A of Punjab Act 1 of 1913, nor did he remove any defect in his title ; assuming that there is any such distinction about which it is, in the present case, unnecessary to express any opinion, because when he purchased the land from his brother he did not do so in exercise of and pursuant to and right of pre-emption vesting in him.

So Hari Singh Defendant is only entitled to the protection available to him under Sub-section (1) of Section 17-A of the Punjab Act 10 of 1953, urder which only that much land is free from any right of preemption under Punjab Act 1 of 1913 that is under the tenancy of a tenant. The learned Counsel for this Defendant urged that the whole of the land in suit his been in the tenancy of this Defendant because it was so pleaded in the Defendant''s written statement, which was never controverted on the side of the Plaintiff. The learned Counsel then points out that there is no evidence on the record that Hari Singh Defendant was not tenant of any part of the land, subject of the present litigation. This obviously is not correct because there is the Jamabandi,Exhibit P. 2, of the years 1955-56 and the Khasra Girdawaris, Exhibits P. 3 and D. 3, from the year 1959 to the year 1962, which prove that Hari Singh Defendant was a tenant only on part of the total holding of the vendor and his two brothers in the detail which has already been given above. So Hari Singh Defendant can only have protection u/s 17-A(1) of Punjab Act 10 of 1953 to the extent as stated above. The learned Counsel for the Plaintiff urges that this Defendant is not entitled to this protection because the sale is indivisible and the area under his tenancy purchased by him is part of that indivisible sale. In this respect he relies upon Jang Singh''s case, in which, it is true, it was observed that the case of indivisible sale, where it is not possible to separate the share of a tenant in a sale made to him with others, would not entitle him to the benefit-of a provision like Section 17-A(1) of Punjab Act 10 of 1953, but when actually deciding the cases before the Bench the learned Judges dealt with the connected case of Ranjit Singh v. Bega, in paragraph 10 of the judgment. In that case the vendor had sold a certain piece of land to a tenant and his five brothers for a consideration of Rs. 3 000/- and it was decided that the tenant alone was entitled to defeat the pre-emptor''s claim to the extent of his one sixth share and the direction given was that that one-sixth share be excluded from the pre-emption decree and the purchase money be reduced proportionally- So Ranjit Singh v. Bega as dealt with in paragraph 10 of the report in Jag(sic) Singh''s case, is on facts exactly the same as the present case in which Hari Singh Defendant has purchased along with his two brothers the land in question, himself having a one-third share in it. According to the ratio in Jang Singh''s case, with reference to Ranjit Singh v. Bega, Hari Singh Defendant is entitled to defeat the Plaintiff''s claim of pre-emption to his one-third share out of tenant land of which he was the tenant and to the reduction of the amount of the pre emotion decree proportionally. Jang Singh''s case was followed by another Division Bench of this Court consisting of Grover and Dua, JJ., in Gurbachan Singh v. Mohinder Singh 1963 P.L.R. 1026. No case to the contrary has been referred to. So this argument on the side of the Plaintiff cannot be accepted. On the basis on which Ranjit Singh v. Been was decided in Jang Singh''s case, Hari Singh Defendant is entitled to defeat the Plaintiff''s claim of preemption with regard to one-third share of the land purchased by him and by his brothers so far as out of that land the land that was under his tenancy is concerned. It has already been shown that that one-third share comes to 6 Kanals and 6 Sirsahis.

It is however, urged by the learned Counsel on behalf of Hari Singh Defendant that during the pendency of the suit and before the expiry of period of one year from the date of the first sale deed, Exhibit D. 1, Hari Singh Defendant having purchased two-third share from his two brothers under the sale-deed, Exhibit D. 2, he stood in the shoes of his two brothers and thus really became a vendee of the whole of the one-third share of Janardan Defendant-vendor in the first sale-deed, Exhibit D. 1. This was precisely the argument which was urged before a Division Bench consisting of Dulat and Mahajan, JJ., in Malhu v. Sham Lal(1965) 67 P.L.R. 1034 but was rejected by the learned Judges, pointing out that what was being pre-empted was not the second sale but the first sale. The learned Counsel for Hari Singh Defendant then points out that in that case the tenant had no right of pre-emption in the year 1959, as pointed out by the learned Judges, unlike this Defendant who, because of the amendment introduced by Punjab Act 10 of 1960, has a right of pre-emption in the status of a tenant, but the learned Counsel ignores that that has no meaning in the present case (a) because his right of pre-emption is not available against the superior right of pre-emption of the Plaintiff as already explained, and (b) he did not and could not, in the circumstances of this case, purchase the two-third share of his brothers under the sale-deed, Exhibit Order 2, in-pursuance of or in answer to his right of pre-emption u/s 15(1)(a), Fourthly, of Punjab Act 1 of 1913, for the simple reason that a co-vendue cannot pre-empt a sale in his own favour along with others. No doubt his brothers were not tenants under the vendor and his brothers and were thus strangers, but the right of pre emption that has become available to the tenant by reason of the Amending Punjab Act 10 of 1960 does not help this Defendant in this case, because the sale of two-third share of his brothers to him under the sale deed, Exhibit D 2, has not been pursuant to or in the wake of any such right vesting in him. So a complete answer to this argument on the side of this Defendant is provided by Malku''s case.

Of the 26 Kanals and 2 Marlas land of his share sold by Janardan vendor, the whole has come to Hari Singh Defendant by reason of the sale-deeds, Exhibits D. 1 and D. 2. Out of that area, the area of the tenancy land of this Defendant proportionally comes to 18 Kanals and 2 Marlas. The remaining 8 Kanals is not connected with his tenancy rights and with regard to that he cannot have protection of Sub-section (1) of Section 17 A of Punjab Act 10 of 1953. So far as the other area of 18 Kanals and 2 Marlas is concerned, although he was a tenant of the same but he associated with him his two brothers, who were not tenants and who were thus not entitled to the benefit of Section 17-A(1) of the said Act, and so according to Jang Singh''s case he is only entitled to defeat the Plaintiff''s right of pre-emption with regard to his share out of that area which comes to 6 Kanals and 6 Sirsahis. His sub sequent purchase of the remaining area from his two brothers does not advance his claim to protection under the said section because of Malhu''s case. Hari Singh defendent is, therefore, entitled to defeat the Plaintiff''s claim of pre emption only to the extent of 6 Kanals and 6 Sirsahis out of the land in question, and, according to Jang Singh''s case, consideration proportionate to this area as against the total area of 26 Kanals and 2 Marlas is to be reduced from the price payable by the Plaintiff as pre-emptor of the land pre-empted by him under the Sale-deed. Ehxhibit D. 1. The total area sold under that sale deed has been 26 Kanals and 2 Marlas and as Hari Singh Defendant defeats the Plaintiff''s claim to 6 Kanals and 6 Sirsahis so the Plaintiff is entitled to a decree for 20 Kanals, 1 Marla and 3 Sirsahis on payment of proportionate price which comes to Rs. 3,100/-, deducting, out of the total consideration of Rs. 4,000/-, Rs 900- the proportionate price of 6 Kanals and 6 Sirsahis. In consequence, this appeal of the Plaintiff is partly accepted and his suit for possession of the land by pre emption is decreed to the extent of 20 Kanals, 1 Marla and 3 Sirsahis out of the land referred to in the sale-deed. Exhibit D 1, on payment of Rs. 3,100/- by him by deposit in the trial Court on or before April 6, 1970, but if he fails to make the deposit by that date his suit in this respect shall stand dismissed. His suit with regard to the remaining area of 6 Kanals and 6 Sirsahis is dismissed as his appeal in this respect fails. In the circumstances of the case, the parties are left to their costs.