Hari Singh vs Damodar and Others

Harbans Singh, J.—This is a vendee''s appeal against the decree for possession by pre-emption granted to a co-sharer of the vendor. The brief facts giving rise to this appeal are as follows:-

Ram Ditta, Janardhan and Damodar were the three brothers. They jointly owned land, out of which one-third share owned by Janardhan was sold by him on 25th of September, 1961, to Hari Singh, Diwana and Chhotu in equal shares for a consideration of Rs. 4,000/-. On 17th of July, 1962, Damodar basing his claim on being a co-sharer and the brother of the vendor filed a suit for possession by pre-emption. During the pendency of this suit and within one year from the date of sale, that is, 21 st September, 1962, Diwana and Chhotu sold their share in the property purchased by them to Hari Singh, the result being that the entire one third share belonging to Janardhan came to be owned by Hari Singh. Admittedly. Hari Singh is a tenant over part of the land, which measures 53 Kanals and 12 Marlas comprising rectangle No. 234, Kilas Nos. 1. 10 and 11/1, and rectangle No. 225, Kilas Nos. 4, 5/1, 5/2, 6 and 7. Diwana and Chhotu were complete strangers. The lower appellate Court holding that the sale was indivisible, that Hari Singh by Joining with Diwana and Chhotu had lost the protection given to him u/s 17-A of the Punjab Security of Land Tenures Act and that the subsequent sale made by Diwana and Chhotu in favour of Hari Singh did not improve his status, decreed the suit of Damodar reversing the decision of the trial Court, which had dismissed the suit. Hari Singh has come up in appeal.

The learned counsel for the appellant has urged that the sale by Diwana and Chhotu in favour of Hari Singh was not in recognition of any superior right of pre-emption held by him and he does not claim any advantage on that ground. His main contention, however, is that Hari Singh enjoyed a particular status at the time of the sale, namely, of being a tenant. As such, any sale in his favour was protected and was not subject to the right of pre-emption by virtue of the provisions of section 17-A of the Punjab Security of Land Tenures Act. So far there is no dispute. He also concedes for the sake of argument that by joining with him Diwana and Chhotu in a sale which may be taken to be indivisible, he loses this protection. However, he contended if during the pendency of the suit before a decree is granted to the pre-emptor, Hari Singh is able to remove this defect which was depriving him of the protection granted to him by law, he cannot be taken to have ''improved his status'' within the meaning of section 21-A of the Punjab Pre-emption Act and he can only be said to have removed the defect which had crept in and consequently he was entitled to resist the pre-emptor on the basis that he is the sole vendee. Reliance for this is pieced by the learned counsel on a Full Bench decision reported as AIR 1941 444 (Lahore) Mr. Justice Din Mohammad, who delivered the opinion of the Bench, referred to three Division Bench decisions to each one of which he was a party. With regard to one of these, AIR 1935 529 (Lahore) he observed as follows:-

It was held that if a vendee having an equal right of pre-emption associates with himself in a joint purchase a stranger, he loses his right of resistance and cannot be allowed to retain even his own share of the purchase. It was, however, added that if the vendee during the pendancy of the suit removes the defect by purchasing the stranger''s share at any stage before the final adjudication of the case, the pre-emptor cannot succeed irrespective of the fact that the subsequent acquisition takes place after the limitation had expired." This decision was followed in AIR 1941 444 (Lahore) . With regard to the other decision in J as AIR 1935 808 (Lahore) , the original vendee had, in order to defeat the pre-emptor''s claim, instead of improving his own status transferred the property in favour of the vendor''s son after the expiry of the period of limitation provided for a pre-emption suit. This was held to be hit by the rule of lis pendens because the transfer was not in recognition of any superior right of pre-emption of the vendor''s son as he had lost the right to get that property transferred by instituting the suit. Mr. Justice Beckett, who had written a dissenting judgment in the Full Bench decision given in "Thakar Madho Singh v. Lt. James R.R. Skinner AIR 1941 Lab. 43 : 43 P.L.R. 581 (FB.) in which the majority had held that the vendee can improve his status up to the passing of the decree, observed as follows:-

I have expressed my doubts in my judgment as a member of the Full Bench in AIR 1941 433 (Lahore) , but the question here is not exactly the same. The vendee is not here acquiring any right of pre-emption to be matched against the right of the pre-emptor. He possesses the right in the first, instance, and once the strangers are removed, the basis of the right of pre-emption disappears....

The Full Bench, therefore, made a distinction between a case where an existing vendee removes a defect, which had got attached to him by association of a stranger, and a case where the vendee himself improves his status. In the present case, it was urged that Hari Singh who enjoyed the status of a tenant could resist the suit for pre-emption and sale in his favour, but by joining with him two strangers he lost this right of resistance. By having this defect removed during the pendency of the suit and before a decree had been passed, he was restored to the original position of a tenant with all the corresponding privileges as such. He also referred to Jang Singh v. Hardial Singh (1962) 64 P.L.R. 1152, wherein it was observed that section 8-A of the Pepsu Tenancy and Agricultural Lands Act (which corresponds to section 17-A of the Punjab Security of Land Tenures Act) has been enacted for the protection of the tenant and the scope of the benefit conferred on a tenant should not be whittled down. I feel that there is a force in the argument of the learned counsel and it is a reasonable view to be taken that a tenant who is losing his right of resistance simply because of the existence of a stranger, can be restored to his right if he gets rid of the stranger before the passing of a final decree in the case, as is held by the Full Bench case referred to above.

The learned counsel for the pre-emptor, however, urges that, as has been held by the Supreme Court in Bishan Singh and Others Vs. Khazan Singh and Another, rule of lis pendens would apply unless the transfer is made in recognition of the pre-existing right and that in the present case, obviously, Hari Singh could not have been able to pre-empt the sale, for the obvious reason that the himself was a party to the sale, and consequently the sale in favour of Hari Singh cannot be held to be in recognition of the superior right of pre-emption. As I have already indicated, this is not disputed. The claim of Hari Singh can stand only on the basis that he has just removed his defect, which was pulling him down and was preventing him from claiming the protection given to him by section 17-A of the Punjab Security of Land Tenures Act.

The learned counsel for the respondent then urged that section 21-A of the Punjab Pre-emption Act specifically prohibits any improvement of the status of the vendee during the pendency of the suit. The word ''status'' may have a different meaning in different contexts, but I feel that in the context of this case it has the meaning of the ''position occupied by the vendee''. In the present case it must refer to his position as a tenant. No improvement has taken place in the status of the tenant because he was a tenant, to begin with, and he continued to be a tenant thereafter. He has only been able to remove the impediment in his way for claiming the protection given to him as such.

For the reasons given above, therefore, I feel that the sale in favour of Hari Singh resulting from the original sale by Janardhan to Diwana and Chhotu is not pre-emptible and consequently accept this appeal, set aside the judgment and decree of the lower appellate Court and dismiss the suit. In the peculiar circumstances of the case and in view of the difficult nature of the point involved, I leave the parties to bear their own costs throughout.

On an oral request by the learned counsel for the respondent, I grant leave for appeal under clause 10 of the Letters Patent.