Katar Singh vs Manphul and others

Pritam Singh Pattar, J.—This is second appeal filed by Katar Singh plaintiff against the judgment and decree dated 21st December, 1961 of Shri M.L. Jain, Senior Sub Judge, with enhanced Appellate Powers, Rohtak, dismissing his appeal against the decree dated 20th June, 1961, passed by Shri K.D. Mohan, Sub-Judge 1st Class Sonepat for possession by pre emption of 2/3rd share of the land in suit in his favour against Manphul, Parma and Lachhman defendants on payment of Rs. 693-16 paise and dismissing his suit regarding the remaining 1/3rd share of the land in suit against Manphul defendant.

Briefly stated the facts of this case are that Hoshiar Singh defendant No. 4 was owner of the land in suit measuring 8 Kanals and he sold the suite for Rs. 1000/- on the basis of a registered sale deed dated 15th July, 1959 to Mahphul Singh, Parma and Lachhman defendants. Katar Singh, who is the son of vendor filed a suit for possession by pre-emption of this land alleging that his right of pre emption was superior to that of the vendees, that the sale took place for Rs. 600/-only and a decree for possession be passed in his favour on payment of this amount. The vandees admitted that the plaintiff was the son of the vendor, but they alleged that they were tenants of the suit land at the time of the sale and, therefore, the suit for pre-emption was not maintainable. They also averred that the sale took place for Rs. 1000/- and the same was the market value of the land. It was alleged that besides the sale price they were entitled to get expenses incurred by them on the execution and registration of the sale-deed. On these pleadings of the parties following issues were framed by the trial Court:

(1) Whether the defendants were tenants of the land in suit at the time of the sale in dispute and if so what effect.

(2) Whether the sale price of Rs. 1000/- was fixed in good faith or paid.

(3) If not, what is the market value of the land in suit.

(4) Whether the vendees defendants incurred any deed expenses, if so what amount and whether they are entitled to recover that amount from the plaintiff pre-emptor.

(5) Relief.

On issue No. 1 it was held that Manphul Singh defendant No. 1 was only tenant of the land in suit at the time of the sale and this issue was decided accordingly. Issue No. 2 was held in favour of the vendees. The trial Court held on issue No. 4 that the vendees incurred Rs. 39-75 paise as expenses on execution and registration of the sale-deed and they were entitled to get this amount from the plaintiff. As a result, decree for possession by pre-emption of 2/3rd share of the land in suit on payment of Rs. 693-16 paise was passed in favour of the plaintiff, against Parma and Lachhman defendants and the suit regarding the remaining 1/3rd land was dismissed against Manphul defendant No. 1.

Against this decree, Katar Singh preferred an appeal in the court of Senior Sub-Judge alleging that the decision of the trial Court dismissing his suit for one-third share against Manphul was wrong and it may be set aside and he may be granted a decree for possession regarding the land in suit. The defendant-vendees filed cross-objections that the suit of the plaintiff should be dismissed. The Senior Sub Judge dismissed both the appeals and the cross objections and left the parties to bear their own costs. Katar Singh plaintiff filed this second appeal alleging that he was entitled to obtain decree for possession by pre-emption of the whole of the land and the decision of the lower Court dismissing his suit for one third share of the land in suit may be set-aside.

On the basis of the registered sale-deed Exhibit D. 1 dated 15th July 1959, Hoshiar Singh defendant No.4 sold the land in suit in favour of Manphul and his brothers Parma and Lachhman defendant-vendees for Rs. 1000/-. Admittedly Manphul was in possession of this land at the date of sale as a tenant under Hoshiar Singh vendor and there is a recital to that effect also in the sale-deed. The learned counsel for the appellant relied upon Garib Singh v. Harnam Singh (1972) 747 PLR 186, to show that Manphul Singh vendee, who was the tenant, associated with himself in the sale his two brothers who were strangers, therefore, he could not resist his claim for pre-emption on the basis of his own qualifications or status. In this authority one Harchand Singh sold his 1/4th share of land for Rs. 4000/- on the basis of a registered sale-deed dated 15th March, 1966, to his uncle Garib Singh and wife Gurnam Kaur Harnam Singh, a brother of Garib Singh vendee brought a suit for pre-emption on the plea that he was a co-sharer and also the uncle of the vendor. During the pendency of the suit, on 10th June, 1968, Gurnam Kaur made a gift of her share of the land which she had purchased jointly with her husband to her co-vendee Garib Singh. Taking advantage of this gift in his favour Garib Singh resisted the suit inter alia on the plea that as a result of the gift in his favour the suit for pre-emption must fail as his right was equal to that of the pre emptor On these facts, it was held that if the vendee associates with himself in sale a stranger, he sinks to the level of the stranger and he cannot resist the claim of pre eruption on the basis of his own qualification or status. The gift which was in his favour by his wife Gurnam Kaur during the pendency of the suit was hit by Section 21A of the Punjab Pre-emption Act. His plea was rejected and the suit of the plaintiff pre emptor was decreed against him. This authority is obviously distinguishable and has no application to the present case. In this case, Manphul defendant did not claim superior or equal right of pre-emption to the plaintiff. His right is admittedly inferior to the plaintiff. His only plea is that the suit so far as his one-third share in the land is concerned, does not lie in view of the provisions of Section 17-A of the Punjab Security of Land Tenures Act, 1953. The point for determination in this case is whether by joining strangers with him in the sale Manphul lost the right of protection granted to him by Section 17-A regarding his one-third share in the suit land.

The learned counsel for the appellant then relied upon Hari Singh v. Damodar (1966) 63 PLR 45. In this case one Janardhan sold his one-third share in the joint land to Hari Singh, Diwana and Chhotu in equal shares for Rs. 4,000/-. Damodar, the brother of the vendor and also a co-sharer in the land filed a suit for pre-emption. During the pendency of the suit and within on year from the date of sale Diwana and Chhotu sold their shares in the property purchased by them to their brother Hari Singh, the result being that the entire land belonging to Janardhan came to be owned by Hari Singh vendee. Admittedly, Hiri Singh was a tenant over a part of the land in suit. On these facts, it was held as under:

that, a tenant who is losing his right of resistance to a suit for pre-emption, as provided under s. 17-A of the Punjab Security of Land Tenures Act, 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 pre-emption suit instituted against the vendees. No improvement takes place within the meaning of section 21-A of the Pre-emption Act, in the status of the tenant by his purchasing the interest of the stranger in the property, because he was a tenant to begin with and he continued to be tenant thereafter. By removing the defect in his right of resistance which had crept in by joining with him a stranger, he was restored to his original position of a tenant with all the corresponding privileges.

This ruling is also distinguishable. In this ruling, Hari Singh vendee was a tenant of a part of the land and not on the whole of the land. No finding was given in that case, whether Hari Singh could not resist the pre-emption suit regarding his one-third share in the suit land of which he was a tenant in view of the statutory protection given by section 17-A of the Punjab Security of Land Tenures Act, 1953. Section 17-A, sub-section (1) of the Punjab Security of Land Tenures Act lays down as under:

Notwithstanding anything to the contrary contained in this Act or the Punjab Pre-emption Act, 1913, a sale of land comprising the tenancy of a tenant made to him by the landowner shall not be pre-emptible under the Punjab Preemption 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:

Provided that for purposes of this sub section the expression tenant includes a joint tenant to whom whole or part of the land comprising the joint tenancy is sold by land-owner.

This provision creates an absolute bar regarding the maintainability of suit for pre emption against the vendee of land of which he was a tenant at the date of the sale. Admittedly, Manphul defendant was a tenant of the whole of the land in suit on the date of the sale and is its vendee to the extent of one-third share and consequently suit for pre-emption is not maintainable to the extent of one-third share of Manphul Singh in view of the provisions of section 17-A of the Punjab Security of Land Tenures Act 10 of 1953.

The scope of the benefit conferred on a tenant by Section 17-A of the above Act No. 10 of 1953 cannot be whittled down and the sale of the land comprising of the tenancy of the tenant cannot be reasonably left restricted to sales which are made only in favour of the tenant. In many cases, a tenant may not be in a position to purchase the land comprising the tenancy by himself or the landlord may have chosen to sell it to the tenant along with other persons. It would be an obvious denial of an intended bent fit to hold that the tenant should be the sole purchaser of the land from the owner. It is the tenant who is protected and not the sale as such and consequently the interest of tenant in the land sold has to be determined whenever there is a sale by the owner in his favour along with others. The various rules applicable to the law of pre-emption generally cannot and should not be held to be attracted to the case covered by section 17-A of the Act. The rule that a pre-emptor by associating with himself a stranger reduces himself to the status of his co-vendees and thereby loses his preferential right to purchase the property, cannot and should not be incorporated into consideration of cases governed by Section 17-A of the Act. This view is supported by two Division Bench rulings of our High Court. In Gurbachan Singh v. Mohinder Singh, (1963) 65 PLR 1026 it was held:

That it is the tenant who is protected by section 17-A of the Punjab Security of Land Tenures Act and not the sale as such and consequently the interest of the tenant in the land sold has to be determined whenever there is a sale by the owner in favour of the tenant along with others. Only the land sold to the tenant is exempted from pre-emption.

In Jang Singh v. Hardial Singh, (1962) 64 PLR 1152 it was held:

that, whenever and wherever the share of a tenant can be separated in a sale made in his favour along with other persons, the tenant would be entitled to the benefit provided u/s 8-A of the Pepsu Tenancy and Agricultural Lards Act, 13 of 1955, an where it is not possible to separate the share of a tenant in a sale trade to him with others he would net be entitled to claim the benefit of section 8-A.

This ruling was followed in 1963 P.L.R. 1026. In both these authorities the tenant of the land had joined strangers with him and it was held that in view of the provisions of section 17-A of the Punjab Security of Land Tenures Act 1953, the sale was not pre emptible to the extent of share of the tenant-vendee. Therefore, the law laid down in these authorities applies to this case and consequently the contention of the learned counsel for the appellant is rejected and the decision of the lower Courts must be up-held. For the reasons given above, it is held that the various rules applicable to the law of pre-emption generally cannot and should not be held to be attracted to the cases covered by section 17-A of the Punjab Security of Land Tenures Act, 1953. The rule that a vendee, who associates with himself in the sale a stranger reduces himself to the status of his co-vendees and thereby cannot resist the claim for preemption on the basis of his own qualification or status, cannot be taken into consideration while deciding cases covered by section 17-A(1) of the Punjab Security of Land Tenures Act, 1953. The interest of the tenant in the land sold has to be considered whenever there is a sale by the owner in his favour along with others and the land sold to the tenant is exempted from pre-emption u/s 17-A of that Act. The decision of the lower Appellate, Court is correct and is affirmed. There is no force in this appeal and is dismissed with costs.