Gurbachan Singh and another vs Bhag Singh and another

Gurdev Singh, J.—This judgment will dispose of two regular second appeals Nos. 116 and 117 arising out of the two suits for pre-emption of land sold in favour of the appellants, Gurbachan Singh and Ram Singh, situate in village Hathan on the basis of a registered sale deed dated 28th of March, 1964, for Rs. 16,500. The property in question was under mortgage with the vendees themselves. The sale was pre-empted by Bhag Singh and Lakha Singh by two separate suits on the plea that the vendor was their father''s brother''s son and thus they had preferential right''s over the vendees. In resisting the suits, it was pleaded by the vendees that the property was not pre-emptible. They also disputed the consideration and alleged that it did not represent the market value. It was also alleged that the plaintiffs had waived off their right of pre-emption. Plea of limitation was also taken. The learned trial Judge, however, decreed both the suits awarding possession of the property sold to the pre-emptors in equal shares on payment of half of the consideration by each of them. The findings of the trial Court have been affirmed by the learned District Judge, Sangrur, by his judgment dated 2nd of February, 1967. The vendees have come up in further appeal to this Court against the decrees in favour of both the appellants.

The only contention raised by Mr. Ashok Bhan, counsel for the appellants is that the property was not pre-emptible since it was under mortgage with the vendees. He argued that the property sold was not land as defined in the Punjab Pre-emption Act, but only equity of redemption and argued that equity of redemption was not pre-emptible. He is, however, unable to support his contention by reference to any authority. On the other hand, I find that the rule laid down in the decision Shahbaz Khan v. Fazal Din 1912 P.R. 43 upon which the lower appellate Court has relied for upholding the plea taken up by the appellants, is in consonance with the earlier decision in Khan Bahadur Ahm ed Shah v. Walidad Khan (1906) PLR 83.

Apart from those authorities, I find that the definition of the expression "agricultural land", as given in the Punjab Pre-emption Act, does not exclude land which is subject to mortgage. On reference to the sale-deed I find that what was sold was not the equity of redemption but the land as such, though at the time of the sale the land was under mortgage. There is nothing in the scheme of the Punjab Pre emotion Act to indicate that the sale of agricultural land which is subject to the mortgage is exempt from the right of pre-emption, or that it ceases to be agricultural land.

I, thus, find no merit in these appeals which are hereby dismissed with costs.