Mange Ram vs Tulsi Ram and ors.

Gokal Chand Mital, J.

Smt. Ramti and Khushi Ram sold the land in dispute for a consideration of Rs. 38,000/ vide sale deed dated 15.4.1982 in favour of five brothers, namely, Tulsi Ram and others. Mange Ram sought to preempt the sale on the ground that he was tenant as well as cosharer of the vendors and had superior right of preemption. The vendees contested the suit and pleaded that the sale was made for Rs. 23,000/ and disputed the claim of the plaintiff. They also pleaded that the vendees were in possession of the suit land as tenants at the time of execution of the sale deed on payment of Rs. 500/ as annual lease money, and had the protection of section 17A of the Punjab Security of Land Tenures Act, 1953 (hereinafter called the 1953 Act) as the sale made to tenants is not preemptible. The trial Court found that the plaintiff was cosharer in the sold land except Khasra No. 68 but held that the sale made by Smt. Ramti, who had inherited the same from her husband, was not preemptible under section 15(1) of the Punjab Preemption Act (hereinafter called the Act) as the sale made by females was preemptible under section 15(2) which had been declared ultravires by the Supreme Court. Since the plaintiff was not found entitled to preempt the share of Smt. Ramti, it was held that the vendees became cosharers in the land in dispute by purchasing the share of Smt. Ramti which was status equal to that of the preemptors and the suit was dismissed. On plaintiff''s appeal the learned District Judge came to the conclusion that the preemptor was relation of the vendors under firstly and secondly of clause (b) of section 15(1) of the Act and, therefore, in view of Jagdish v. Nathi Mal Kejriwal, A.I.R. 1987 Supreme Court 68 : 1987 R.R.R. 65, a cosharer''s right of pre emption could not be decreed. This is second appeal by the preemptor.

Firstly, referring to the matter decided by the lower Appellate Court, there was some confusion because of the parentage of the plaintiff and that of one of the vendors. The preemptor is son of Bishamber son of Ishar son of Salig Ram; whereas Smt. Ramti is widow of Bishamber son of Daulat Ram and the other vendor is Khushi Ram son of Bishamber son of Daulat Ram. The learned counsel for the vendee was given opportunity to see if the preemptor was related to the vendors. After going through the record and finding all facts from his client, he had to concede that the preemptor is not at all related to the vendors and the confusion crept in before the District Court because of the common name of the father of the preemptor and Khushi Ram vendor. The decision to the contrary of the learned District Judge is reversed and it is held that the preemptor is a cosharer but is not in any degree related to the vendors and the decision in Jagdish''s case (supra) is not applicable.

It was then argued that on behalf of the vendees that in the registered sale deed there is recital that the vendees are already in possession as tenants. The learned counsel wants to take benefit of this recital to show that the vendees were already in possession as tenants and by virtue of section 17A of the 1953 Act the sale is not preemptible. Since this matter was hotly contested and was either not properly raised or properly gone into by the Courts below, it deserves a detailed discussion. The true translation of the pleading of the vendees about the tenancy is as follows :

"That the defendants have been cultivating the land of the vendors since before purchase on annual rent of Rs. 500/."

When the matter came to evidence, the revenue entries nowhere show the vendees to be either in possession or as tenants except in possession after sale on the basis of mutation as vendees. Rattan, one of the vendees, came in the witness box as D.W. 1. According to his statement the tenancy was created 7/8 years before the sale deed was executed and since they are in possession and have been paying annual rent at the rate of Rs. 500/. His statement is clearly contrary to the revenue entries as no entry shows their possession, nor records the tenancy, nor records payment of rent.

The learned counsel then argued that if the tenancy was not created in 1976, on the basis of the recital contained in the registered sale deed, it may be deemed that it was created sometime before the sale deed was executed and on that basis it can be held that the vendees are tenants and the sale is not preemptible. It is true that the registered sale deed does contain a recital that the vendees are already in possession as tenants but it does not give the other details for constituting the tenancy, i.e., the rate of rent payable etc. It is true that tenancy could have been created sometime before the sale deed was executed but the evidence led shows that the tenancy was created in 1976 and the rent was being paid but there is no evidence to support the same. It will be beyond pleadings to hold on the basis of recital in the sale deed that the tenancy was created sometime before the sale of executed. Accordingly, it is held that the vendees had failed to prove their tenancy.

Now reverting back to the point decided by the trial Court, we have latest judgment of the Supreme Court reported in Nand Kishore v. Avtar Singh, 1988(1) RRR 574 (SC) : 1988 P.L.J. 47, where on identical facts it is held that when a sale is made by a female and a male, a cosharer is entitled to preempt the sale made by both undersection 15(1) as section 15(2) has been declared to be ultra vires. Section 15(1) applies to all sales, whether made by a female or a male and section 15(2) was an exception to it when sale was made by a female, who had succeeded the land through her husband or through her son, in case the son had inherited the land from his father or was of land which she had succeeded though her father or brother. The right of preemption under both the circumstances was given to certain named relations. The right of preemption under section 15(2) of the Act had been struck down with the result that the section stands wiped out and under section 15(1) of the Act, as stated by the Supreme Court in the aforesaid decision, the preemptor as a cosharer is entitled to preempt the entire sale and the decision to the contrary given by the trial Court is reversed.

Before parting, one more matter deserves to be noticed. Khasra No. 68/21/1, measuring 2 kanals 7 marlas forms part of the sale deed which is sought to be preempted but this Khasra number was not owned by the vendors nor the preemptor was cosharer with the vendors in that Khasra number. In fact the vendee''s stand was also in the written statement that the aforesaid Khasra number was not owned by the vendors and there was no sale about it. That is why the trial court held that the preemptor is not entitled to preempt Khasra No. 68/21/1 and rightly so because neither the vendors had the right to sell it, nor a preemptor was proved to be a cosharer in it. In these state of affairs, the learned counsel for the preemptor submitted that the preemptor wants to preempt the remaining land on payment of full sale price along with other expenses and the suit be decreased (decreed ?) accordingly.

For the reasons recorded above, the suit for possession by the preemptor is decreed for the suit land minus Khasra No. 68/21/1 measuring 2 kanals 7 marlas on payment of Rs. 38,000/ as the sale consideration, Rs. 4750/ as stamp charges and Rs. 570/ as registration charges, in favour of Mange Ram against the defendants, within three months from today failing which the suit for preemption would stand dismissed. The parties are left to bear their own costs.

Suit decreed.