Jagan Nath and Others vs Bhagat Ram and Others

D.B. Lal, J.—This is a second appeal filed by Jagan Nath and Shiv Ram against the decision dated 4th August, 1969 of the learned Additional District Judge, Kangra, and relates to a suit for pre-emption filed by Bhagat Ram against the appellants Jagan Nath and Shiv Ram and four others including Shrimati Bhajni the vendor, the Defendants 1 to 5 being vendees. The case of Bhagat Ram was that he was co-sharer along with Defendant No. 6 Shrimati Bhajni in Khatas 5, 7, 9 and 10 of the Khewat, the land being situate in village Dathwara of Tehsil Una. The Defendant No. 6 sold her specific share in these joint Khatas to Defendants 1 to 5 by a sale-deed dated 3-3-1965 for a consideration of Rs. 4,700. The Plaintiffs claimed a right of pre-emption and accordingly filed the suit for possession against the Defendants 1 to 6.

The Defendants 1 to 5 resisted the suit on the allegations, that they were themselves co-sharers and possessed a preferential right to pre-empt as against the Plaintiff. Besides this, they also contended that they were tenants in the land u/s 17-A of the Punjab Security of Land Tenures Act, 1953, and the sale of land comprising their tenancy was not pre-emptible.

The Plaintiffs claimed their right of pre-emption u/s 15(1)(b) fourthly, being co-sharers with Shrimati Bhajni in the disputed land.

The learned Subordinate Judge held that the Defendants 1 to 5 were not co-sharers because they had purchased some specific fields in Khata No. 5 and that would not have made them co-sharers in the entire Khata numbers of which specific shares woe sold by Shrimati Bhajni to Defendants 1 to 5. Therefore, it was held that the Defendants 1 to 5 were not co-sharers. The Plaintiff was decidedly a co-sharer along with Bhajni in all the Khata numbers and as such he had preferential right to pre-empt. The Subordinate Judge also held that Jagan Nath Defendant No. 1 was tenant of specific plots in Khata No. 5 and the other Defendants were not tenants from Bhajni. He further held that the Defendant Jagan Nath having associated with him strangers as purchasers of the land, also lost his right to resist pre-emption u/s 17-A of the Punjab Security of Land Tenures Act, 1953. Accordingly the learned Subordinate Judge decreed the suit.

The Defendants came in appeal before the learned Additional District Judge, and he too dismissed the appeal. The point regarding tenancy of the Defendant Jagan Nath was not pressed before the learned Addl. District Judge. The Defendant-appellants contended that they were co-sharers having purchased specific fields in Khata No. 5, and should have been preferred as against the Plaintiff. The learned Addl. District Judge reiterated the finding of the learned Subordinate judge and held that the Defendants 1 to 5 could not get preferential right to pre-empt because they did not become co-sharers in the Khata numbers. They were only proprietors of specific Khasra numbers comprised in Khata No. 5. From that, they could not claim ownership for any specific share in all the joint Khatas. Therefore, the Defendants 1 to 5 could not resist the right of pre-emption claimed by the Plaintiff. It was, therefore, held that the suit was rightly decreed and the appeal was dismissed.

Jagan Nath and Shiv Ram vendee-Defendants have preferred this second appeal and their contentions are two-fold. Firstly, they assert that Jagan Nath appellant was tenant of specific plots in Khata No. 5, and upto the extent of the area comprised in his tenancy, the right of pre-emption could not be exercised by the Plaintiff in view of Section 17-A of the Punjab Security of Land Tenures Act, 1953. Secondly, they contend, that they are also co-sharers with Bhajni and should have preference over the Plaintiffs. It is manifest, the plea regarding tenancy was given up by them before the learned Addl. District Judge. They have chosen to re-agitate the plea in second appeal. The plea regarding tenancy was based on questions of fact. The Defendants having given up such plea before the learned Addl. District Judge could not be permitted to re-agitate that plea afresh in second appeal. However, even if I permit the Defendants to raise such plea, it is not sustainable. The reason is that the learned trial Judge gave the finding regarding tenancy of Jagan Nath without any evidence whatsoever to substantiate such a finding. If we peruse Ex. P. 1 which is the jamabandi entry for the years 1962-63, the only document relied upon by the Defendants in support of their tenancy, we find, that in the column of tenants the name of Jagan Nath is written and the entry is that he was purchaser from Bhajni and the plots were in his cultivation as such purchaser. It means Jagan Nath purchased the specific plots from Bhajni and started cultivating them. Jagan Nath could not be a proprietor and a tenant both at the same time. He became co-owner in such specific plots and hence could not become a lessee in respect of the whole or part of the same. Both the titles that of the land owner and of the lessee, could not exist in one and the same person. This is so held by a learned Judge of this Court in Malagar v. Shiv Ram 1969 PLR 276, Therefore, a finding of fact arrived at in the Court of the trial Judge for the tenancy of Jagan Nath was based on no evidence and hence can be set aside in second appeal.

Regarding the plea for co-sharer, the Defendant No. 1 Jagan Nath was the purchaser of specific plots in Khata Nos. 5, 7 and 9, and from that fact alone he could not claim co-ownership in all the Khata numbers. The Defendant could only be co-owner of those specific plots and not in the entire Khata. In this connection, reliance can be placed upon the Full Bench decision of the Punjab and Haryana High Court of which the report is Lachhman Singh v. Pritam Chand 1970 CLJ 264, The Defendants never purchased a share in the whole of the joint land and therefore they were not co-sharers with Bhajni or Bhagat Ram in the disputed land. The finding of the learned Addl. District Judge cannot be assailed and must be upheld in this respect.

It is also evident that Jagan Nath vendee had associated with him strangers and that fact will also defeat his right to claim pre-emption. The sale executed by Bhajni in favour of Defendants 1 to 5 is indivisible sale and the vendor cannot be compelled to accept a part of sale and reject the other part. Therefore, the vendee-appellant Jagan Nath will lose his right of resistance of the pre-emption suit for having associated with himself stranger vendees in the same sale-deed. The fact regarding indivisibility of sale qua-vendor has been the subject-matter of two decisions reported in Bhagwana v. Shadi AIR 1934 Lah 878, and Hayat Bakhsh v. Mansabdar Khan AIR 1935 Lah 529, It was held in these cases that the contract of sale as regards the vendor was one and indivisible. The vendor had contracted to take the purchase money for the whole land and could not be compelled to sell to one or the other of the vendees specific shares on payment of proportionate purchase money. The policy of the Pre-emption Act is to keep out strangers and thus maintain the exclusiveness of the estate. If a vendee therefore having an equal right of pre-emption associates with himself in a joint purchase a stranger or a person having no right to first refusal under the Act, he loses his right of resistance and cannot be allowed to retain even his own share of the purchase. There is a slight difference in this connection in the position of the pre-emptor because he chooses to purchase afresh and a new sale contract is to be brought into existence. If the pre-emptor under some mistake brings in a stranger having no right to pre-empt, nevertheless he can exercise his right of pre-emption. The view has been upheld in Bachan Singh v. Bhopal Singh 1965 PLR 849, In that case, the pre-emptor joined with him as co-Plaintiff a stranger in the belief that the latter did possess the pre-emptive right. It was later on found that the co-Plaintiff did not possess the pre-emptive right. Still the claim of the Plaintiff for pre-emption was upheld. The present case is of a different nature. Here the vendee has brought with him strangers in the same transaction of sale. The sale being indivisible, the vendor cannot be compelled to preempt a fraction of sale in favour of eligible vendee and disregard the rest of the sale because the purchasers are strangers. Therefore, in my opinion, the appellant Jagan Nath having brought with himself strangers as vendees, lost his own right of pre-emption as against Bhagat Ram. From this point of view, the Plaintiff Bhagat Ram had a preferential right to pre-empt, being co-sharer. Fourthly u/s 15(1)(b) of the Punjab Pre-emption Act.

In the result, there is no substance in second appeal and the finding of the learned Addl. District Judge cannot be set aside.

The second appeal fails, and is hereby dismissed with costs.