Duni Chand and others vs Nagina Singh

J.V. Gupta, J.

This is defendants'' second appeal against whom the suit for possession by way of preemption was dismissed by the trial Court but was partly decreed in appeal.

Nanak Chand sold his 1/6th share in the land measuring 129 kanals 18 marlas vide sale deed dated 11.2.1974 for a sum of Rs. 3,000/. The plaintiff claiming himself to be one of the cosharers filed a suit for possession by way of preemption. The suit was contested, inter alia, on the suit land and, therefore, the sale was not preemptible. The defendants also denied that the plaintiff was a cosharer. The trial Court found that the defendants were tenants in the suit land at the time of sale and that being so the plaintiff does not have superior right of preemption in view of section 17A of the Punjab Security of Land Tenures Act, 1953. In view of that finding the plaintiff''s suit was dismissed. In appeal, the learned Additional District Judge came to the conclusion that the vendees could be said to be tenants only on 1/6th share of the land sold which comes to 2 Kanals 14 Marlas. Consequently, he passed the following decree "a decree for possession by preemption of land measuring 18 Kanals 19 Marlas as 1/6th share out of Gher Mumkin Darya Burd land measuring 113 Kanals 14 Marlas (excluding 16 Kanals 4 Marlas under the tenancy of the respondents) is passed in favour of the appellant and against the respondents on payment of Rs. 2925/ in all."

The learned counsel for the vendeeappellants submitted that even on the finding of the lower Appellate Court, the plaintiff''s suit was liable to be dismissed in view of the decision of this Court reported in Chander v. Madan Gopal, 1981 R.L.R. 478 : 1981 P.L.J. 310. He submitted that after holding that the defendants were tenants on 2 Kanals 14 Marals of land and that being so the sale qua that land was not preemptible in view of the provisions of section 17A of the Punjab Security of Land Tenures Act, 1953 the defendants have also become cosharers in the joint Khata and therefore, the plaintiff could not claim the right of preemption being cosharer. According to the learned counsel the vendeedefendants were entitled to improve their status before filling the suit for preemption and on the facts and circumstances of the case since the defendants also became cosharers by virtue of the sale deed in question, the plaintiff could not claim the right of preemption being a cosharer.

Faced with this situation, the learned counsel for the respondent submitted that this point was never taken and should not be allowed to be taken for the first time. He also submitted that the vendees do not become cosharers simply because land 2 Kanals 14 Marlas was found not to be preemption.

After hearing the learned counsel for the parties, I find force in the contention raised on behalf of the vendeeappellants. It was no more disputed and was found as a fact by the lower appellate Court as well that the vendee defendants are tenants on 16 Kanals 4 Marlas of land out of the total land measuring 129 Kanals 18 Marlas. According to the lower appellate Court, the defendant vendees will be deemed to be tenants on 1/6th share thereof, which comes to 2 Kanals 14 Marlas. Though this proposition was also disputed by the learned counsel for the vendeeappellants, but accepting the finding of the lower appellate Court, the vendees have improved their status through the same transaction and, therefore, the plaintiffs were not entitled to preempt the sale being the cosharers. This proposition is fully covered by the judgment of this Court in Chander''s case (supra). In these circumstances the appeal succeeds and the judgment and decree of the lower appellate Court are set aside and that of the trial Court dismissing the plaintiff''s suit is restored with no order as to costs.