Phulla Singh and anr. vs Sulakhan Singh

M.S. Liberhan, J.

The appellants purchased the land in suit measuring 52 Kanals 5 Marlas from Begpur Cooperative Farming Society vide registered sale deed dated 18.9.1974 for a sum of Rs. 17,308/. The plaintiff claimed the right to preempt the sale being a tenant on the land in dispute.

The defendantappellants controverted the allegations of the plaintiffrespondent and contended that land in dispute was Banjar Qadim and they had reclaimed it, no suit for preemption was maintainable. In the alternative, they claimed consideration, stamp and registration charges, other pleas were raised. The following issues were framed :

Whether the plaintiff has a preferential right of preemption ? O.P.P.

Whether the land in the dispute was Banjar Qadim and has been reclaimed by the vendees, if so its effect ? OPP

Whether the suit land was under attachment U/s 145 Cr.P.C. at the time of sale, if so its effect ? OPD.

Whether the vendee is entitled to stamp and registration charges ? OPD.

Whether the suit is bad for partial preemption ? OPD.

Relief.

The trial Court came to the conclusion that the plaintiff had a preferential right of preemption, the suit was not bad for partial preemption the land was not Banjar Quadim, it had not been reclaimed by the vendees, it was not under attachment under section 145, Cr.P.C. at the time of sale, and the vendees were found entitled to stamp and registration charges, and the suit was decreed to the extent of 39 Kanals 11 Marlas.

The vendee defendants preferred an appeal contending that the plaintiff preemptor had failed to prove himself to be the tenant at the time of sale as well as the decree. The lower Appellate Court after reappraising the evidence, came to the conclusion that the plaintiff was a tenant on both these dates. The said finding had not been challenged before me.

Another contention pressed before the lower Appellate Court was that the plaintiff was tenant along with other three persons, who had not put forth their claim of preemption, consequently the plaintiff would be deemed to be a tenant o the extent of 1/4th share in the land in suit and the suit could have been decreed to the extent of his share alone. The lower Appellate Court, after relying upon Kartar Singh and others v. Karpal Singh, 1965 PLR 64, Teekam Ram v. Mangu and others, AIR 1970 Delhi 224 and Chandan v. Ram Sarup, 1976 PLJ 115, came to the conclusion that plaintiff was entitled to preempt the entire land. In view of these findings, the appeal was dismissed.

The judgment and decree of the lower Appellate Court had been challenged in this second appeal.

The counsel for he appellants urged he only content that suit could have been decreed only with respect to the land which was under the tenancy of the plaintiffpreemptor along with his cotenants. The suit could not be decreed with respect to the land which was neither under the tenancy of the plaintiff or his cotenants. It has been stated that in the plaint itself the plaintiff has claimed himself to be tenant with his cotenants in respect of 39 Kanals 11 Marlas comprised in Khewat No. 107 Khatauni No. 123 Rect. No. 22 Killas Nos. 3, 8, 21, 22 and 23 out of the agricultural land measuring 52 Kanals 5 Marlas. The plaintiff has not claimed tenancy on the remaining land measuring 12 Kanals 14 Marlas. Factually, the respondent''s counsel had not controverted the said fact.

The learned counsel for the appellants relied upon Kartar Singh and others v. Kirpal Singh, 1965 PLR Short Notes 123 (R.S.A. No. 252 of 1963 decided on 21.5.1964), a Division Bench decision of this Court inter alia holding that the tenant had a right of preemption only with respect to the land over which he held the tenancy rights and to the entire land sold. The counsel for the appellants also relied upon Sarwan Singh and another v. Tarsem Lal and another, AIR 1972 Punjab & Haryana 315 (1972 PLJ 111). The counsel for the respondent relied upon a Single Bench decision reported as Brahm Dutt v. Inder Singh and another, 1977 Revenue Law Reporter 446 (1977 PLJ 257) inter alia holding that a tenant on a part of land had right to preempt the entire land.

The judgment in Brahm Dutt''s case (supra) runs counter to be in Kartar Singh''s case (supra). I do not find any reason, nor has been pointed out, to differ with the judgment in Kartar Singh''s case (supra).

In view of the admitted fact i.e. the respondent being a tenant on the land measuring 39 Kanals 11 Marlas comprised in Khewat No. 107, Khatauni No. 123, Rectangle No. 22, Killa Nos 3, 8, 21 and 23, out of the agricultural land measuring 52 Kanals 5 Marlas, he was entitled to preempt the said land on payment of proportionate consideration with proportionate cost for registration and stamp charges.

No other point has been urged.

In view of my observations above, I accept the appeal modify the judgment and decree of the lower Appellate Court to the extent that decree for possession of 39 Kanals 11 Marlas with proportionate consideration and registration and stamp charges, it granted in favour of the plaintiffrespondent and with respect to the remaining land the suit is dismissed. The plaintiff is granted 30 days'' time to deposit the preemption money after adjusting the 1/5th already deposited. In case the plaintiff fails to deposit the consideration amount during the said period, the suit shall stand dismissed. No order as to costs.