Hari Dev Kaushal vs Gaje Singh

D.S. Tewatia, J.—Two brothers namely Hari Dev Kaushal appellant in R.S.A. No. 1867 of 1973 end Jagdev Sahai respondent in R.S.A. No. 151 of 1974, purchased from Hira, grandfather of Gajay Singh (respondent in R.S.A. No. 1867 of 1973 and appellant in R.S.A. 151 of 1974) through two separate registered sale deeds executed on 10-12 1968 land measuring 13 Kanals 13 Marlas each from Khasra No. 156, which comprised of 6 Kanals 13 Marlas, Khasra No. 167 which comprised of 13 Kanals 13 Marlas and Khasra No 169 which comprised of 14 Kanals 7 Marlas, 6 Kanals 13 Marlas each from Khasra No. 156 and 167 and 7 kanals each from 169. Gajay Singh (hereinafter referred to as the pre-emptor) sought to preempt sale through two separate suits. While his suit against Jagdev Sahai was dismissed, his other suit against Hari Dev Kaushal was decreed by the trial Court. Both these judgments were sustained by the first appellate Court. So, we have before us two separate aforementioned appeals, one at the instance of Hari Dev Kaushal and the other at the instance of Gajay Singh pre-emptor and I propose to decide them by a common judgment.

Suit against Jagdev Sahai was dismissed by the Courts below in view of the provisions of Section 5 of the Preemption Act (herein after referred to as the Act) as therein it was held that the land had been reclaimed by Jagdev Sahai before the riling of the suit. Suit against Hari Dev was decreed as therein the Courts came to the conclusion that Hari Dev had failed to adduce any evidence to show that he too had reclaimed the land before filing of the suit.

There is certain amount of confusion about the nature of the land sold and therefore, it is appropriate to first determine the nature and kind of land. However, before that provisions of Section 3 of the Act alongwith its explanation deserve nothing:--

No right of preemption shall exist in respect of--

(a) the sale of foreclosure of a right to redeem--

(i) a shop, serai or atra;

(ii) a dharmsala, mosque or other similar building; or

(b) the sale of agricultural land being waste land reclaimed by the vendee.

Explanation:--

For the purpose of this section the expression ''waste laud'' means land recorded as banjar of any kind in revenue records and such ghair mumkin lands as are reclaimable.

Perusal of the above said provision would reveal that all types of banjar lands fall within the definition of wastel and'' Revenuere cord placed on the file by the defendants- vendees show that entire land comprise in Khasra No. 169, which was shown as Barani remained vacant from 1964-65 till 967-68 and 1958-69 with the result that from Kharif 1968 to Rabi 1969 it has been recorded as Banjar Jadid. That means that entire land comprised in Khasra No. 169 at the time of sale was waste land in terms of section 5 of the Act As regards the land comprised in Khasra No. 167 and 156, admittedly the same was Ghair Mumkin land at the time when it was sold as per Jamabandi for the year 1962 63, Ex. D.1-Land comprised in Khasra No 156 was recorded as Ghair Mumkin Bhattar ''Khudan'' while land in Khasra No. 167 as Ghair Mumkin ''Khathan'' with the result that the entire area comprised in these three Khasra Nos. comprised of waste land

As this stage a point raised by Mr. Sharma, learned counsel for Hari Dev Kaushal appellant that the land comprised in Khasra Nos. 156 and 167 cannot considered to be agricultural land deserves to be noticed as it carries some repercussions on the decision of R.S.A. 1867 of 1973 in view of the decision in Hardit Singh Mohinder Singh AIR Lah.755 and Dittu Ram v. Balwant Rai (1959) 61 P.L.R. 869 wherein the land not satisfying the requirements of the definition of ''agricultural land'' as mentioned in Punjab--Alienation of Land Act would not be considered agricultural land and therefore, would not be pre-emptible even if Section 5 had not been there

Sub-section (1) of Section 3 of Preemption Act adopts the definition of expression ''agricultural land'' as obtaining in the Punjab Alienation of Land Act, 1900. Sub-section 3 of Section 2 whereof inter alia defines land as meaning that land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture.

Ghair Mumkin Kaudan and Ghair Mumkin Bhatta cannot satisfy the requirement of the definition of the expression agricultural land as defined in the Punjab Alienation Land Act as the same cannot be considered to be land occupied or let for a purpose subservient to agricultural purposes. Accordingly I hold that the land comprising in Khasra No. 166 and 167 at the time it was sold was not an agricultural land and, therefore, was not pre-emptible at all in view of the decisions relied upon by Mr. Sharma.

We now come to the land that was purchased out of Kasra No. 169. As already observed, this land was waste land, so in the light of the provisions of Section 5 of the Act and the Full Bench decision in Karnail Singh v. Jabir Singh 1974 P.L.J. 226 so much of the purchased land out of his Khasra only would be beyond pre emption as had been reclaimed by the vendees at any time even upto the filing of the appeal in this Court Hence, it would have to be seen as to how much of the land which the two brothers had purchased out of Khasra No. 169 had been reclaimed. As already observed upto 1967-68, entire land comprised in Khasra No. 169 was recorded vacant In Kharif 1968 it was recorded Banjar Jadid, which entry was repeated in Rabi 1969''. In Kharif 1969 out of 14 Kanals 7 Marlas, 4 Kanals is shown under crop, 2 7 Kanals is shown Kharwa and 8 Kanals is recorded vacant. In Rabi 1970, 6 Kanals is recorded under crop and 8 Kanals 7 Marlas is recorded vacant.

Hari Dey and Jagdev Sahai had purchased 14 Kanals out of 14 Kanals 7 Marlas comprised in Khasra No. 169 in equal shares. That means 8 Kanals and 7 Marlas remained unreclaimed. Out of that 7 Marlas belong to the vendor. Hence 8 Kanals of their share remained unreclaimed. Since both brothers had purchased in equal shares out of the said Khasra No i.e. 7 Kanals each, so, their share in the unreclaimed land would also be equal i.e. 4 Kanals each.

In view of the above finding there is no escape from the conclusion that 4 Kanals each of the share of the vendees was pre-emptible in their respective hands only. It further means that so far as the suit of the pre-emptor against Jagdev Sahai is concerned it was wrongly dismissed qua 4 Kanals of land and his appeal against the judgment was also wrongly dismissed qua 4 Kanals of land.

Even so pre-emptor Gajay Singh in his R.S.A. No 151 of 1974 against Jagdev Sahai cannot be given any relief as the appeal was barred by limitation. The limitation for filing the appeal was to expire on 17th December, 1973. Appellant Gajay Singh had filed his appeal on 15th November, 1973 but without the certified copy of the judgment of the trial Court. The Registry returned the papers with an objection that he should file the certified copy of the trial Court''s order. An application for the certified copy of the trial Court''s order had then been filed on 5th December, 1973 which was delivered to the appellant on 14th December, 1973. However, the sane was filed with the Registry only on 8th January, 1974. Obviously, the appeal when filed on 8th January, 1974 was beyond limitation. Even then no application for condonation of delay was filed Mr. Surjit Singh, learned counsel for the appellant merely urged that since the appeal had been filed before 17th December, 1973, which was the last date of limitation for the filing of the appeal and the plaintiff had also applied for the copy of the trial Court''s order before 17th December, 1973, so the appeal should be treated as having been filed within limitation. The contention is obviously fallacious The appeal earlier filed was not properly constituted and was not an appeal in the eye of law.

In view of the above R.S.A. 151 of 1974 is dismissed as barred by limitation but with no order as to costs.

Coming now to R.S.A. No. 1867 of 1973; filed by Hari Dev Kaushal, the same has to be allowed excepting regarding 4 Kanals of land.

Mr. Surjit Singh, learned counsel for the respondent pre-emptor, however, urged that it was not the case of the vendees before the trial Court that part of the land did not satisfy the definition of agricultural land and therefore, the same was not pre-emptible. H is only plea there was that the land was waste land and had been reclaimed and that by virtue of the provisions of Section 5 it was not pre-emptible.

Even if that is so, the evidence on the record clearly shows its nature and when considered in the light of the definition of agricultural land it does not satisfy its requirement in law and, therefore, the question which is a pure question of law can be permitted to be raised even at this stage.

In the result the order of the Courts below is modified to the extent indicated and this appeal is allowed to the extent indicated. No order as to costs.