Gurbachan Singh and others vs Bhagat Singh and others

Gurdev Singh, J.—This second appeal arises out of a suit for possession of 95 Kanals 10 Marias of agricultural land situate in village Ghutind, by pre-emption brought by Bhagat Singh respondent on the allegation that he was a tenant of this land under the vendors at the time of the sale. The trial Court dismissed the suit on the ground that the plaintiff though in possession of a part of the land in suit at the time of the sale was not a tenant under the vendors on the date the suit was instituted. In appeal, the learned District Judge, Patiala, held that since Bhagat Singh plaintiff was in possession of 66 Kanals 15 Marias of land out of the land in suit as a tenant on the date of the sale, he was entitled to a decree for that area, and this relief could not be denied to him merely because he was not a tenant under the vendors on the date the suit was instituted. Finding that the sale was made for Rs. 17,000/- and Rs.2,500/- had been incurred by the vendees on the execution of the deed, the learned District Judge granted the plaintiff decree for 66 Kanals 15 Marias on payment of Rs. 13,566.75 NP. The findings with regard to the consideration and the area in actual possession of Bhagat Singh plaintiff at the time of the sale being findings of fact have not been challenged before me. The only contention raised by Mr. Mela Ram Sharma, who appears for the appellants, is that the plaintiff respondent was not entitled to a decree as he was not the tenant of any part of the land in suit either at the time the suit was instituted or on the date of the decree. Bhagat Singh plaintiff has, on the other hand, preferred cross-objections claiming decree for the entire property.

The short question for consideration is whether the rule that a pre-emptor must retain his qualifications till the passing of the decree and should possess superior right of pre-emption not only on the date of the sale but also on the day the suit is instituted and at the passing of the decree, applies to a tenant who claims right of pre-emption under clause Fourthly of section 15(1)(c) of the Punjab Pre-emption Act as recently amended. This provision reads as follows :-

15(1) The right of pre-emption in respect of agricultural land and village immovable property shall vest-

(a)....

(b)....

(c) where the sale is of land or property owned jointly and is made by all the co-shares jointly,-

Fourthly, in the tenants who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof.

This clause applies to the sale of the joint land or property made by all the co-sharers jointly. Obviously, as a result of such a sale, all co-sharers cease to have any interest in the joint property. Accordingly, the tenant or tenants holding the tenancy under the venders would cease to be tenants of the vendors from the date of the sale. It, therefore, follows that a tenant of the vendors, who was holding the tenancy under the venders on the date of the sale, would cease to occupy that status as soon as the sale is completed and the title passes to the vendee. Consequently subsequent to the sale a tenant of the vendors in whom right of pre-emption vests under clause fourthly of section 15(i)(c), with which we are concerned, cannot by very nature of things satisfy the condition of being a tenant "who holds under tenancy of the vendors or any one of them the land or property sold or a part thereof". In other words, it will be impossible for- a tenant exercising the right of pre-emption under this clause to satisfy the condition of retaining that qualification of his being a tenant under the vendors or any one of them on the date of the suit and the date of the decree Insistence on his retaining that qualification subsequent to the sale would thus deprive the tenant of the right of pre-emption which the legislature has expressly conferred on him under clause Fourthly of section (15)(i)(c). Such an interpretation would render the provision nugatory and result in depriving the tenants in a joint tenancy of their right to pre-empt which the legislature has given him An interpretation which defeats the very purpose of the legislature and renders the provision incapable of enforcement cannot be accepted. The rule that the pre-empter must retain his qualification right upto the date of the decree will not thus apply to the case in hand and the exercise of the pre-emptive right under clause Fourthly of section (15)(1)(c) must accordingly, be-treated as an exception to that general rule. I am fortified in this view by the decision of Pandit J. in Sohan Singh v. Ruldu Ram (1967) 69 P.L.R. 414, wherein reference has been made to the unreported judgment of Mahajan J. in Chuhar Ram v. Kashmiri Lal R.S.A. 425 of 1964, dated 21st December, 1964, taking a similar view.

In the cross objections preferred by the plaintiff-respondent, the finding of the trial Court that Bhagat Singh plaintiff was in possession as tenant only of 66 Kanals 15 Marlas out of the land in suit is attacked, and it is urged that he was a tenant in the entire area sold. The finding, which is assailed, being one of fact cannot be reopened in second appeal even on the ground of misappreciation of evidence.

I thus find no force in the appeal or the cross objections and dismiss the same, leaving the parties to bear their own costs.