Krishna Ram (deceased by L.R's.) vs Krishna Charitable Trust, Jagadhari and Another

D.V. Sehgal, J.—Karta and Banarsi, brothers of the petitioner herein, sold the land in dispute to the respondent vide registered sale deed dated 12-11-1986. A week earlier to this sale a lease deed was executed between them and Varinder Kumar on 4-11-1980 whereby the same land was allegedly leased out to the latter. In the sale deed there is a mention that the land is on lease with Varinder Kumar who is paying Chakouta to the vendors and that after the sale he shall pay the same to the vendees. The petitioner filed a suit for preemption of the sale dated 12-11-1986 and the suit was ultimately decreed He sought to execute the decree and secure possession of the land in dispute but the same was resisted by Varinder Kumar who contended that the petitioner is entitled to symbolical possession only for the reason that he holds the status of a tenant on the land in dispute. This objection has prevailed with the learned Executing Court and vide order dated 25-8-1986 it has held that the petitioner is entitled to get only symbolical possession of the disputed land. The petitioner thus being aggrieved has filed the present revision petition.

I have heard the learned counsel for the parties. It has been contended that the lease deed was merely a camouflage to defeat the rights of the prospective pre-emptor and this being the position Varinder Kumar cannot be allowed to continue in possession of the property. The learned Executing Court has adverted to the statement of Varinder Kumar himself who appeared as DW 2 and made a categoric admission to the effect that the lease deed in his favour was got executed just to avoid right of pre-emptioa This decidedly takes the wind out of the sails of the objectors. There can be no manner of doubt that the lease deed executed a week prior to the sale deed was simply a device to ward off the prospective pre-emptors. The contention of the learned counsel for the respondent is that Varinder Kumar was not a party to the suit, for pre-emption Varinder Kumar during the course of his statement had made a candid admission that he is not the real lessee. This contention is of no avail.

The learned counsel for the respondent has no doubt referred to the fact that in the Jamabandi and Khasra Girdawari effect was given both to the lease deed and to the sale deed and mutation to this effect was also entered but the rights of the parties had to be determined by reference to the title deeds and in the context of the admission made by Varinder Kumar. 1 am of the positive view that he cannot resist actual possession of the property by the decree-holder petitioner.

Learned counsel for the respondent then contended that the vendee can defeat the right of the pre-emptor by any lawful means and even by taking recourse to technical objections. No exception can be taken to this plea but where the transaction of lease is not real but simply a facade that cannot be given effect to and cannot be set up against the successful pre-emptor.

He then invited my attention to Ram Kishan Dass v. Zaharia (1968) 70 PLR 11, and contended that actual possession of the property in dispute cannot be taken from a tenant He also relied on the provisions of Order XXI, Rule 36, Code of Civil Procedure. Ram Kishan Dass''s case (supra) is clearly distinguishable. In that case the property in dispute was purchased by the sitting tenant therein. The question which was debated was whether on purchase of the property by the tenant, he having attained a greater title, the lesser one merged in it. It was rightly held that the pre-emptor steps into the shoes of the vendee from the date the sale took place. Therefore, the position that existed before the said sale is to be restored. It was in this situation that it was held that the tenant cannot be dispossessed in execution of the decree of pre-emption of sale.

I am, therefore, of the considered view that the impunged order cannot be sustained. The petitioner is entitled to actual possession of the land in dispute. Consequently, this revision petition is allowed, the impugned order of the learned Executing Court is set aside, and it shall now proceed to execute the decree in accordance with law and get delivered actual possession, of the land in dispute to the petitioner. In the circumstances of the case, the parties are left to bear their own costs.

The parties through their counsel are directed to appear before the learned Executing Court on 1-11-1988.