Mangal and others vs Thari Ram

J.V. Gupta, J.

This is defendants'' second appeal against whom the suit for possession by way of preemption has been decreed by both the Courts below.

Shrimati Laxmi Devi, who had inherited the land from her father, sold the suit land vide registered sale deed dated June 16, 1969, in favour of the defendantsappellants for a sum of Rs.2,000/. The plaintiffsrespondents sought to preempt that sale on the ground that they being the brothers of the vendor had a superior right of preemption. The suit was contested by the defendants inter alia on the plea that they were tenants on the demised land under the vendor at the time of the sale and thereafter and, thus, the same was not preemptible. The trial court found that Richhpal Singh, one of the vendees, alone was a tenant on the suit land under the vendor at the time of the sale, but since he had associated some strangers with him in the purchase, he could not defeat the suit of the plaintiffs on the ground of his being a tenant on the land. Consequently, the plaintiffs'' suit was decreed on payment of Rs. 2,232/. In appeal, the learned Additional District Judge did agree with the reasoning of the trial court that Richhpal Singh, one of the vendees, who was found to be a tenant on the suit land at the time of the sale, having associated with him in the joint purchase, other defendants who were strangers, had lost his right of preemption. However, after discussing the entire evidence on the record, it was concluded that even Richhpal Singh, one of the vendees, had also failed to prove himself to be a tenant on the suit land under the vendor. Consequently, the decree of the trial Court decreeing the plaintiff''s suit was maintained though on a different ground. Dissatisfied with the same, the defendants have come up in second appeal to this court.

The learned counsel for the appellants contended that it has been amply proved on the record that Richhpal Singh, one of the vendees, was a tenant on the suit land under the vendor and that the finding of the trial Court in this behalf was correct which has been reversed by the lower appellate Court merely on surmises and conjectures. According to the learned counsel, once it is held that one of the vendees Richhpal Singh was a tenant on the suit land under the vendor, the sale could not be preempted. In support of his contention, the learned counsel placed reliance on Kartar Singh v. Manphul, 1973 Punjab Law Journal 29.

After hearing the learned counsel for the parties, I am of the considered opinion that there is force in the contention raised on behalf of the appellants. The findings of the lower appellate Court that Richhpal Singh, one of the vendees, was not a tenant on the suit land under the vendor, is based on surmises and conjectures and is, thus, wrong and illegal. The approach of the trial Court in this respect is more convincing and is based on the evidence on the record. In the Jamabandi for the year 196465, Exhibit P.1, Richhpal Singh, is entered as a tenant on the suit land under the vendor. Similarly, the Khasra Girdawari for the year 196870, exhibit P.W.3/1, also proves that Richhpal Singh had been a tenant on the suit land. Even Tharu Ram, who appeared as P.W. 1, admitted in his crossexamination that the land, in dispute, was being cultivated by Mangal Singh, Richhpal Singh, Chiranji Lal and Brahamjit,vendees. He also stated that even the land of their shares was cultivated by Mangal Singh and others. Wasu Ram, P.W. 3, also admitted and could not deny that the suit land was cultivated by the vendees. According to the learned lower appellate Court, the only document showing the defendants to be the tenants on the suit land was the copy of the Khasra girdhawari, Exhibit P.W.3/1, but there was no presumption of correctness about the entries made in the Khasra Girdawaris. This approach of the lower appellate Court is misconceived. Unless there is evidence to the contrary, the entries in the Khasra Girdawari could certainly be relied upon to prove the tenancy of the vendees on the suit land. Apart from that there is Jamabandi, Exhibit P.1., in which Richhpal Singh is entered as a tenant on the suit land under the vendor. There is every presumption of truth as to the entries in the Jamabandi unless the contrary is proved. There is absolutely no evidence on the record to show that the possession of one of the vendees defendants was not in the capacity of tenant, but otherwise. It is the plaintiffs'' own case that Laxmi Devi, vendor never cultivated the land herself and that the possession thereof was with the vendeedefendant Richhpal Singh as tenant. In this view of the matter, the finding recorded by the lower appellate Court in this behalf is reversed and that of the trial Court is restored.

Once it is held that one of the vendees Richhpal Singh was a tenant on the suit land, then, he is entitled to the protection under section 17A of the Punjab Security of Land Tenures Act. According to the said provisions, a sale of land in favour of a tenant is protected from preemption. The learned counsel for the respondents, contended that it was evident from the sale deed that the four brothers had purchased the property in equal shares. In that situation, only onefourths share of the land purchased by Richhpal Singh, tenant vendee, would be saved and that the plaintiffs will be entitled to claim threefourth share thereof by way of preemption. In support of his contention, the learned counsel relied upon Damodar v. Hari Singh and others, 1970 Punjab Law Journal 15, Garib Singh v. Harnam Singh and others, 1971 Punjab Law Journal 579, and Rameshwar v. Sheo Chand, 1981 Punjab Law Journal 362. It has been held in all those cases that the tenant is entitled to the protection of section 17A of the above said Act, to the extent he purchased the land. No judgment taking a contrary view has been cited at the bar. Consequently, the plaintiffs'' suit to the extent to onefourth share of Richhpal Singh, tenantvendee, is liable to be dismissed.

As a result of the above discussion, this appeal partly succeed and is allowed to that extent. The judgment and decree of the lower appellate Court are set aside and the plaintiffs'' suit is decreed to the extent to three fourths share of the suit land on payment of Rs/.1,732/, i.e.Rs.1500/plus Rs.232/, as the stamp and the registration charges less the amount already deposited. No costs.

Appeal partly accepted.