Karnail Singh and Another vs Kishan Singh

Gurdev Singh, J.—The only question arising for consideration in this appeal relates to interpretation of section 8-A of the Pepsu Tenancy and Agricultural Lands Act 13 of 1955, as amended by Punjab Act III of 1959.

On the 8th June, 1959, by means of a registered sale deed, Bachitar Singh sold his one-twelfth share in agricultural land measuring (sic) Kanals 19 Marias and 1/18th share of 618 Kanals 9 Marias for Rs. 9000/- to the appellant Karnail Singh and his brother Harnek Singh. Kishan Singh, an uncle of the vendor Bachitar Singh pre-empted the sale on the ground of relationship as well as because of his being a co-sharer in the khata. The vendees in contesting the suit not only denied the superior right claimed by Kishan Singh but also took up the pleas of limitation and waiver. They further contended that they had made improvements on the land, and in case a decree was passed in favour of the plaintiffs, they would be entitled to the cost of improvements, besides Rs. 9000/- which they had paid for the sale. After the entire evidence in the case had been recorded and the suit was at the argument-stage, an application for amendment of the written statement was put in by Karnail Singh, one of the vendees. By this application, he sought to take up the plea that the land in dispute was not pre-emptible in accordance with the provisions of section 8-A of the Pepsu Tenancy and Agricultural Lands Act 13 of 1955. The learned Subordinate Judge, however, refused to allow the amendment on the ground that the application was belated, and its acceptance would result in reopening of the entire case. On merits, the learned Subordinate Judge held that though Kishan Singh was not entitled to claim superior right of pre-emption on the ground of his being a cosharer in the khata as the vendees had also an equal right, being cosharers in the same khata, he was entitled to pre-empt the sale being an uncle of the vendor Bachitar Singh. The pleas of limitation and waiver, as well as that relating to the improvements alleged to have been made by the vendees, were found against them, and accordingly, the learned trial Court decreed Kishan Singh''s suit on payment of Rs. 9000/-.

The vendees, Karnail Singh and Harnek Singh, feeling dissatified, appealed. The findings of the trial Court on the various issues were not disputed, and the only point urged before the learned District Judge was that the trial Court had wrongly refused to allow the amendment of the written statement, seeking to avail of the provisions of section 8-A of the Pepsu Tenancy and Agricultural Lands Act, 1955. Though the learned District Judge was of the opinion that the application for amendment could not be thrown out merely because of the delay, yet he refused to interfere with the order of the trial Court disallowing the amendment on the ground that the plea which was sought to be introduced by way of amendment was untenable and it would serve no useful purpose to permit the written statement to be amended. In this connection, he observed:-

But in this case, even if it be assumed that Karnail Singh was a tenant of the land, he had joined another person Harnek Singh in the sale, who is a stranger. It is by now well-settled that if a person having pre-emptive rights in a property purchases that property but joins some stranger with him in a joint and indivisble sale, then he offends against the basic principles of pre-emption, and the inclusion of the stranger brings him to the level of the stranger-vendee.

In the present case, there can be no doubt that since Harnek Singh is not a tenant of the land and the sale is joint and indivisible it cannot be said properly speaking that the sale as a whole is a sale of land comprising the tenancy of Karnail Singh tenant. The whole of the land has not been sold to him. I would, therefore, hold that in these circumstances the amendment, if allowed, would be of no avail and would result in unnecessary waste of time and money of the parties.

In this view of the matter, since the findings on the various issues that had been decided against the vendees had not been challenged before him, the learned District Judge found no justification for interference with the decree of the trial Court, and dismissed the appeal with costs.

In the second appeal, the sole grievance of the vendee-appellants is that the learned District Judge having found that there was no bar to the amendment of the pleadings being allowed even at a late stage of the suit, should have permitted the written statement to be amended, especially when the plea which was sought to be introduced by the vendee related to the question of pre-emptibility of the land in dispute. The appellants'' learned counsel has further assailed the correctness of the view taken by the learned District Judge about Karnail Singh joining with him his brother as a vendee. It is argued that the rule laid down by the Full Bench in Ali Mohammad and another v. Mohammad Din AIR 1941 Lah 444 = 43 P.L.R. 566 (F.B.), upon which the learned District Judge and the counsel for the respondents relied, has no applicability to the facts of this case. So far as this later part of the appellants'' contention is concerned, I think it has considerable force. What was laid down in Ali Mohammad''s case (supra) was that where a vendee having an equal right of pre-emption associates with himself in a joint purchase a stranger, he loses his right of preemption and cannot be allowed to retain even his own share of the purchase. In the case before us, however, the plea which was sought to be introduced by way of amendment of the written statement was not that the vendee Karnail Singh had a right of pre-emption equal or superior to that of the pre-emptor, but that the property in suit was exempt from the right of pre-emption.

On a careful consideration of section 8-A of the Pepsu Tenancy and Agricultural Lands Act 13 of 1955, I however, agree with the lower appellate Court that even if the assertion of Karnail Singh appellant that he had a right of tenancy in the entire land which has been sold is accepted, that would not attract the applicability of section 8-A of the said Act and the property sold cannot be held to be non-pre-emptible. Section 8-A was inserted in the Pepsu Tenancy and Agricultural Lands Act 13 of 1955 by section 3 of the Punjab Act No. 3 of 1959. It runs as follows:-

8-A. (1) Notwithstanding anything to the contrary contained in the Punjab Pre-emption Act, 1913, a sale of land comprising the tenancy of a tenant made to him by the land owner shall not be pre-emptible under the Punjab Pre-emption Act, 1913, and no decree of pre-emption passed after the commencement of this Act in respect of any such sale of land shall be executed by any Court.

On a plain reading of this provision, it is apparent that before a sale of land, in which any person has a right of tenancy, is declared exempt from pre-emptive right, it must satisfy two conditions:-

(1) that the sale of the land comprises the tenancy of a tenant, and

(2) that the sale must be in favour of that tenant.

If Karnail Singh''s assertion contained in the application for amendment is accepted, that would merely satisfy the first condition mentioned-above, and it can be taken that the sale is of land comprising the tenancy of a tenant. On the second point, it is common case of the parties that the sale is in favour not only of Karnail Singh, who claims to be a tenant in the land, but also in favour of Harnek Singh who does not claim any such right of tenancy. In other words, the sale in question is in favour of a tenant as well as a person who has no such right of tenancy. Thus, all that can be said is that the tenant is one of the vendees and he has acquired a share in the property purchased. This is not equivalent to saying that the sale has been made to a tenant.

The learned counsel for the appellants has argued that a sale would be exempt from the provisions of the Pre-emption Act u/s 8-A of the Pepsu Tenancy and Agricultural Lands Act even if it is not entirely in favour of the tenant, because if a tenant has a share in the property purchased, it cannot be said that the sale is not in favour of a tenant. This argument, in my opinion, is not warranted by the language of section 8-A, which lays down that the sale of land comprising the tenancy of a tenant should be one that has been "made to him." The expression "made to him" cannot be construed as meaning "made to him or to him and a non-tenant". If the legislature intended that however small the share a tenant may acquire in the property sold the entire property should be exempt from the right of pre-emption, it could have very well used suitable words to that end, and in that case the expression used would have been not "a sale of land comprising the tenancy of a tenant made to him," but "the sale of land comprising the tenancy of a tenant, made to him or to him and others."

In construing the provisions of section 8, the intention of the legislature has to be taken into consideration. The object was simply to protect the rights of the tenant If a tenant who is in possession of the land seeks to purchase the property from his landlord, then by enacting section 8-A the legislature laid down that he shall not be deprived of the acquisition of full proprietory rights under the sale by a suit for pre-emption. In cases where a tenant is not interested in the purchase of land, there is no occasion for affording him such protection, and if the property is sold to someone else he cannot complain. In cases where the tenant joins with him a person who has no right of tenancy in the land sold, it is obvious that he does not wish to retain the possession of the property with himself. His conduct in joining a stranger is clearly indicative of the fact that he does not mind a part of the property going out of his possession. If that be so, it would be unreasonable to hold that the entire property would be exempt from the provisions of the pre-emption law. If a different interpretation be adopted, it would open flood-gates for fraud. In case a tenant is maliciously inclined, he would join with strangers, retaining for himself only a negligible share in the sale itself, thus defeating the right of the persons who would otherwise be competent to pre-empt the sale. This in my opinion, could not have been the intention of the legislature.

In view of the above discussion, I hold that a sale of agricultural land in which a tenant has a right of pre-emption would be exempt from the provisions of the Pre-emption Act u/s 8-A of the Pepsu Tenancy and Agricultural Lands Act, 1955, only if the sale is made in favour of the tenant alone and not if the tenant has only a share in the sale. In this view of the matter, the learned District Judge was perfectly justified in refusing to interfere with the order of the trial Court disallowing the amendment of the written statement. As no other point was urged before the District Judge, nor has been agitated in this Court, the appeal must fail and is, accordingly, dismissed. In the circumstances of the case, I leave the parties to bear their own costs.